378
did not think that the Crown should call certain evidence and withhold evidence as to how that was obtained.
The Attorney-General replied that it was the Court which had obtained the evidence as to how the facts were obtained. He went on to indicate that the evidence on which the police worked had not been obtained by inducement or threat, and was quite admissible.
After discussion with the Chief Justice,
The Attorney-General in reply to the Chief Justice, said that his Lordship should have decided at the trial whether or not the evidence now disputed should have been admitted or not. He should have acted according to his
own view.
THE HONGKONG WEEKLY PRESS AND
The Chief Justice disagreed with this view and held that in order to preserve the rights of the Crown it was advisable to allow the evidence on the understanding that the question would be argued on the motion for arrest of judgment. Some discussion took place over a judgment of Justice Hawkins quoted by the Attorney General showing that the learned judge drew A distinction between statements made by a prisoner before he was under arrest and while he
was under arrest.
The Chief Justice declared that the last sentence in the judgment was meaningless.
The Attorney-Geusral-It is most im- portant.
The Chief Justice-It has nothing to do with the case.
The Attorney-General-I shall show your Lordship that Mr. Justice Hawkins draws a great distinction.
The Chief Justice-The case is important
for what it decides, but it does not decide any- thing in that last sentence.
The inotion,-
Attorney-General-It draws a dis
The Chief Justice-But it does not help us in reference to the others.
The Attorney-General referred to a decision of the Divisional Court which he said was
absolutely binding. It was more binding than the individual opinion of Mr. Justice Cave.
The Chief Justice-If we choose to follow we can do so, but we are not bound by it.
The Attorney-General-I don't say so. The Chief Justice-I protested against your statement that we are bound by this decision,
The Attorney-General-I don't wish to so express it.
The Chief Justice-We shall consider that judgment as we shall consider others.
The Attorney-General, continuing his argu- ment, contended that the police sergeant acted legally and fairly and said he would read a text book by Sir Howard Vincent on the duties of the police.
Mr. Slade objected. The Attorney-General maintained that he had a right to read from that book. It was most useful.
The Chief Justice.-It may be most useful to you,
Mr. Slade. I don't know it. It is not a recognised work or authority.
The Chief Justice. It would not be evidence
in the Court below.
The Attorney-General-Certainly. The Chief Justice-Supposing a letter was written to the Times you could not read it?
The Attorney General mentioned where a letter to the Times was recognised. if Mr. Slade or he were to writ, a book on certain legal subject the Court would allow it to be read,
Mr. Slade-No.
The Chief Justice-There was a decision the other day where it was decided to have no text books read.
Mr. Slade There are few text books which have authority.
on
The Attorney-General-We shut out Taylor
"Evidence."
Mr. Blade-Yes. The Attorney-General-We have not done so. The Chief Justice-I think, Mr. Attorney- General, you had better not read it.
The Attorney-General-I am sorry your Lordships refuse to hear it. I am speaking to show the difference between prisoners under
arrest and—-—
The Chief Justice-You want to explain Mr. Justice Hawkins' decision.
The Attorney-General-Here is a text book, the "Police Code," and in it is an address by Lord Brampton.
The Chief Justice-We don't know under what circumstances it was written.
Mr. Slade-It is absolutely exparte. Finally, the Attorney-General was allowed to read the address to the police contained in the book and in conclusion he said that their Lord. ships would permit him to say that that case was practically without precedent in the colony. It was one of great importance to the community. defence were seeking to set aside the unanimous verdict of the jury in a murder case after seven days of patient trial. In the event of that conviction being quashed it involved a precedent which was fraught with serious con- sequences in administration of justice and the frustration of crime in the colony.
The
The Chief Justice-We quite recognise that. The Attorney-General added that his friend in the course of his speech indulged in a retrospect, but he was concerned with the prospective, and he feared that trial by jury might become frustrated. While it was their duty to preserve the rights of the prisoner, he submitted that it was equally their Lordships' duty to maintain unfettered the rights of the
prosecution.
The Chief Justice said that those were opinions with which their Lordships entirely concurred and which had led him to take the objection to the evidence which had been raised. Mr. Slade then replied and said there was absolutely no confirmation of the fact that the box belonged to the third prisoner, when he had said so in reply to the sergeant's question. He did not contend that a police constable had not the right to ask questions for the purpose of finding out who had committed an offence which had been reported to him, bat it did not follow that he, in company with several other members of the police force, might without a warrant make their way into the house of a private person, wake him up at 5.30 am, and then and there ask him questions. That was not a fair way of getting at the truth. It must have been obvious to the smart sergeant who obtained the evidence, that he was clearly in the wrong in going into this man's house, because he took arrested him. good care to take him into the road before he
The Attorney-General--That has nothing to do with the Court. There is nothing to that effect in the evidence.
Mr Slade-Yes there is,
The Attorney-General- He asked the two questions-What is your name and whose is
this box.
The Chief Justice-He gave the wrong
name.
Mr. Slade-Breaking into his bedroom and rousing him up at five in the morning is the way to get a wrong answer.
The Chief Justice-He demanded his name three times,
Mr. Slade-Yes, he gave three different
names.
Mr. Slade contended that the man was in duresse and not a free agent when questioned by the officer.
The Chief Justice at a later stage said that the policeman was the embodiment of the law. Mr. Justice Stephens in his "General Survey of Criminal Law," emphasised the position of the constable and the position in which he stood to the ordinary village. The question was as to the policeman being the embodiment of the law.
Mr. Slade agreed.
The Attorney-General-Then your Lordship is ignoring all the cases I have cited.
The Chief Justice-I am trying to under- stand the authorities you cite. At present I find myself in a hopeless state of chaos. There is not a principle of law to be ascertained appli- cable to this case.
After further discussion, the proceedings concluded with a statement by the Chief Justice that their Lordships would try to evolve a constitutional method of dealing with the case, should the decision of the Court be adverso to the Crown and should the Attorney-General wish to take the matter to the Privy Council.
A formal remand for a fortnight was then granted.
!
[June 13, 1908.
Wednesday, 10th June.
IN ORIGINAL JURISDICTION,
BEFORE THE CHIEF JUSTICE
(SIR FRANCIS PIGGOTT).
AN ADVERTISING agenT'S CLAIM. An interesting action was heard in which Daniel Maher, advertising agent, olaimed from Lam Woo building contractor $10,000 damages for failure to comply with the special performance of a contract dated October 11th, 1907, relating to a scheme of placing advertisements on a shoring surrounding a new building being erected for Messrs. Jardine Matheson and Company. Plaintiff con- dusted his case himself, instructed by Mr. G. K. Holmes, and Mr. M. Slade, instructed by Mr. Daniels, of Messrs. Johnson, Stokes and Master, appeared for the defendant.
The statement of claim was that plaintiff was to obtain orders for advertisements and that
plaintiff was to receive half of the money received.
purposes.
Plaintiff said he noticed from the local newspapers in September 1907, that Mesars Jardine Matheson and Co. were about to erect new premises at the corner of Pedder Street and learning that defendant was the contractor he approached him with a view to securing the use of the hoarding for advertising
to sell Defendant agreed
the rights to plaintiff and an agreement was entered into between the parties whereby it was arranged that defendant should furnish the necessary material, that the advertisements should be painted on tin, that plaintiff should canvass for advertisements, and that the money received for advertising should be divided equally between both parties. Shortly after- wards he discovered that defendant had entered into an arrangement with another man to canvass for advertisements. When he met defendant in the street and the reason for such conduct, asked him defendant said he did
not know plainliff s address, and when he pointed out that the ad- dress appeared on the contract, defendant said he thought plaintiff was dead. Plaintiff told him he would hold defendant to the agreement and when the hoarding was erected in November plaintiff inserted a notice in a local newspaper warning advertisers. On the 28th November in con- sequence of a letter received from Lam Woo he saw the latter who asked him if he was tired of fighting. Plaintiff said he was willing to settle. He wanted half share of the business already done and the can- vasser to refrain from doing further business. Defendant said that was impossible, and rather $50,000 fighting him. It was then suggested than agree to plaintiff's terms he would spend that plaintiff should canvaes until such time as defendant could get rid of the other man. Plaintiff subsequently met the other man who was named Pollock and he agreed to have nothing further to do with the advertisement scheme. He mentioned this to Lam Woo who said plaintiff ought to pay the $100 but plaintiff said it ought to be defendant who should pay. The latter replied that Pollock had got too much out of him already. Plaintiff detailed further conversations with Lam Woo relative to a settlement, but they could not agree.
Cross-examined-He did not know that Lam Woo was the contractor for the Post Office or that advertisements appeared on the boarding there. When he approached Lam Woo a rough hoarding surrounded the place and he suggested that a better one be erected. It was his idea that the advertisements be painted on tin. He did not tell Lam Woo that he had a dozen adver- tisements in his pockets or that he could get them immediately. He canvassed for advert- isements but only got one could not agree as to the price. He
because they
stood that as soon as that was finished he would engaged in other work and it was ander. begin canvassing for advertisements for this hoarding. It was understood that all moneys were to be paid to Lam Woo and the latter did not put up certain advertisement because by its terms plaintiff could collect the money.
Was
Karl William Longuet, managing partner of Kruse and Company, said he had sign- the contract produced. Mr. Pollock brought it to him saying he was authorised
ed
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