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THE HONGKONG WEEKLY PRESS AND
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minutely with the numerous authorities referred on mero statement. Counsel has only knowledge | to by Counsel on both sides in the course of of these facts aggregating his clients defence a very full and exhaustive argument. I think which may have been actually communicated to the facts and the authorities have been him. New points must frequently arise at the sufficiently dealt with in the judgment of the hearing. especially on cross-examination which learned Chief Justice, with which I agree counsel cannot deal with of his own knowledge, generally. But feel hound in a caso of this and without referring to his client for the facts. importance to write out my own conclusions on It is really impossible that in a case of any mag- my own lines, and I have endeavoured to set nitude counsel should have as close an acquain- out the result as briefly as possible. The facts tance with the peculiar circumstances of the are shortly as follows: On the hearing of defence as the prisoner himself. The latter's a charge for murder practically the whole of the knowledge must necessarily be more intimate evidence for the prosecution being given in a and complete. This must be so even in an language the prisoners did not understand. English Court where matters are not usually that evidener was interpreted complicated by differences of language. to them at the trial. The question is, then. How much more so when the aconsed himself whether a conviction obtained under sneh cir- and most of the witnesses are Chinese, and not cumstances can hold good. Now, leaving out knowing English, and the latter speak a dialect of consideration for a moment the fact that which neither the prisoner iniself nor his these prisoners were defended by counsel. I will advocate can understand. The first suggestion | take an elementary case, that of an undefended therefore falls to the ground. As to the second prisoner who hears none of the evidence given point of waiver by counsel, I think that if in against him, and who, in fact, has no more por- criminal matters, when the plea is not guilty, ception of the proceedings than if he was absent the client himself is not competent to bridge, by from Court altogether. The general rule in a acquiescence, gaps in the case against him, nor criminal prosecution is that the defendant must to condone irregularities by consent, then a personally appear at the bar of the Court in fortiori his counsel can assume no such responsi- order to be arraigned by hearing the indictment | bility for him. It is true that the quasi civil read, and to plead to it and further, that the character which the early law attached to mere defendant must remain in Court during the misdemeanours has occasionally led in their whole of the proceedings. He has, in fact. case to slight relaxations of the rule, a right to be present at the trial as long as Thus on a second trial of a charge of he conducts himself properly, and the law is so manslaughter, the evidence of a witness at the stated by Sir James S. Stephen. Digest of first trial has been by consent of the prisoner, Criminal Procedure Act, 302. See also Archi-and to save time merely read out by the judge bald's Criminal Pleadings. 23rd edition. page from his notes, and then assented to en blue by 186.No trial for felony can be had except in the witnesses.
It is necessary, I the presence of the defendant.“ The rigidity suppose, to labour the point that if the consent of this rule appears to be absolute. On a trial of counsel is not sufficient to bind the prisoner for felony the prisoner must be in Court. Mis- on a trial for misdemeanour when the latter demeanours are to some extent on a different perhaps, if he so expressly desires, hind himself, footing, but I will deal with them later on. I lay then on a trial for felony where the prisoner stress upon the importance of the rule that the jer hypothesi can consent to nothing, the con- prisoner must be actually present, because this sent of counsel purporting to be given on the doctrine seems to me to involve a great deal more prisoner's behalf can be of no avail. I am than the mere corporal presence necessitated by unfortunately then compelled to the conclusion his being given in charge to the jury. I think that there was a grave irregularity running goes further and requires an actual mental through the whole conduct of the trial; an apprehension of the proceedings, for how, other irregularity which was beyond the competence wise, would the prisoner know what witnesses of the prisoners or of their counsel to to call, or how would he be able to meet the waive or condone, and which is suffi- evidence against him in the statement the law ciently serious to vitiate the whole proceedings. allows him to make to the jury? It was indeed It necessarily follows that I must hold that almost suggested by the Crown that it is not there was a mis-trial, and that the conviction technically necessary that the prisoner who is should therefore be quashed. I have arrived at in the ourt should be able to understand the this result perhaps y reasoning along some- proceedings, and we were referred to several whnt narrow and technical lines, but in a cases in which deaf mutes had been tried and of this importance it is urgently necessary to convicted on an indictment for felony. But keep fundamental principles rigidly in view. по such docniment can be founded วน On general grounds, however, and without these cases (quotes). The whole tendency, expressing any opinion on the merits of the therefore, of these authorities seems favour-present case, I venture to think my conclusion able to the prisoners in the case before is based upon the broad principles of justice, us. It may be said of course, that a For the purposes of the judgment. I have prisoner at sessions, who had had the evidence assumed throughout that counsel for the translated to him at the Police Court is well prisoners was consciously aware of the aware of the general tenour of the case against irregularity that was being committed. As him, and that he may, if he chooses, waive his a matter of fact, however, I hould think right to have the evidence interpreted again it exceedingly unlikely that it came to Ar. The answer is. I think, that while in several Calthrop's notice while the evidence for the cases the rules of evidence may be waived by com- Crown was being given that evidence was not sent of the parties in a criminal case, these rules being interpreted to his clients. He was entitled are matters public juris, and cannot be so dis to assume, as the Court and the Attorney-General pensed with. On a criminal trial, not merely must have assumed, that the profeedings were the single person acensed has an interest at heing regularly conducted, and that everything stake, but every other subject of the Crown that the law required would be done. It appears concerned, in seeing that the prisoner is as if the irregularity escaped his notice altoge- not deprived of life or liberty except
her up to the middle of the case for the defence, under the whole of the safeguards ` pres- when he very properly reserved the point and cribed by law. No acquiescence by the took time to consider the suggestion thrown out prisoner can therefore be of any effect. If by the Court. It would clearly be a monstrous then, it is necessary for an undefended prisoner thing, if, when men were being fried for their to hear the evidence at the trial. is there any lives, the Crown was entitled to reply that difference when he is defended by counsel? If it was the duty of counsel to notice earlier there is such a difference, it might perhaps what was going on, and that because he had not be suggested in one of two ways: either that the done so, an objection of such weight must be prisoner is by the law so identified with the overruled as coming too late in the proceedings. personality of his advocate that the knowledge Now, again, is it possible to hold that the of the counsel is the knowledge of the prisoners, unlettered and ignorant meu, had client, and that the latter must be taken to have any notion that they were consciously understood the evidence which was in fact abandoning a right the law entitled them to apprehended by the former, or alternatively, claim. Suppose the case of an Englishman it might be said that counsel, having been who should be on trial on a capital charge satisfied to let the evidence go untranslated, when travelling in a foreign country, of whose has waived his client's privilege, and cannot language and procedure he was entirely afterwards bé allowed to raise an ob ignorant. Suppose that, either by the efforts of jection. Now, the unsoundness of the first of his friends or by the good offices of the foreign these propositions sufficiently appears, I think, government, he should be provided with an
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[March 1, 1909.
advocate to assist him at the trial. Surely the first request of an educated man possess- ing the least familiarity with courts of law would be that the whole of the evidence at the trial should be carefully interpreted to him. If, being illiterate, he should through ignorance or timidity refrain from making that request, and forbear calling the attention of his advocate to the matter, surely he would not think it conson- ant with the principles of justice for him to be told after conviction that he had waived his rights by not insisting on them earlier, and that having already heard the gist of the evidence at the preliminary proceedings in an inferior court, he had not in fact any real cause of complaint:
The Chief Justice The convictions quashed.
are
The Attorney-General --Having regard to your Lordship's decision. I have now to say that I intend preferring an indictment on the charge of murder against both prisoners.
The Chief Justice-You are at liberty to do that. The administration of the criminal law is in your hands, and you may instruct the police as you think fit
Mr. Calthrop asked for the discharge of the prisoners.
The Chief Justice-I have discharged them. Mr. Calthrop stated that in a case recently decided by the Court of Crown Cases Reserved it was held that prisoners could not be re-arrested after their discharge.
The Attorney-General-My friend can argue that when the case comes on for trial.
The prisoners were re-arrested leaving Court.
A QUESTION OF DOMICILE. Judgment was given in the appeal against the decision of the Chief Justice on the point of jurisdiction raised in the bankruptcy of Chan Yu Shan. Sir Henry Berkeley. K.C., instructed by Mr. Otto Kong Sing, appeared for the appellant. The Ten. Mr. H. E. Pollock, K.C., instructed by Messrs. d'Almada and Smith, appeared for respondents. The Chief Justice in the course of his judgment said I have given my best consideration to Sir Henry Berkeley's careful and concise little argnment on a point which seems still open to argument on my judgment from which he appealed, but I think the conclu- sion of fact at which I arrived was warranted and that having specially in view the aspect of the bankruptcy jurisdiction which I endeav- oured to elucidate, the conclusion of law based on the conclusion of fact was sound. Before
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giving judgment a few days ago, however, the attention of the Court, was drawn to ordinance 6 of 1902. which apparently had been overlooked by all of us, Our attention was properly drawn to it. because the Court is bound to take official cognizance of the laws of the Colony, and solicitors, being officers of the Court are bound to assist the ourt in the perfor mance of this duty, which, in the case of a Colonial Statute book is often a difficult one, We therefore deferred our judgment in order to see whether this Ordinance has any bearing on the question before us, so as to induce us to alter our judgment. It provides that the word debtor as used in section three of the Bank- ruptcy ordinance as revised, section 4 as it was then, is included a person who, though not himself personally within the Colony, carries on business by an agent within the Colony and possesses assets therein, and tl ere is a further explanation of the definition which I shall refer to presently. Now if in this case, the debtor had still remained in Annam, merely sending up his cinnamon to his agent the Kwang Mow, in this Colony, for sale, he would have within the meaning of this definition. 4 fortiori he would have come within the bank- ruptcy jurisdiction when, instead of remaining in Annam he comes himself to the Colony to take some part in the transaction of his business. But I do not base my decision on that ground, because I believe that consistently with the fundamental principles of jurisdiction as I have explained them, and consistently with the remarks I have already made, and must presently make, on the extraterritorial provisions of the colonial bankruptcy law, this debtor is properly subject to that law. As I have endeavoured to explain it. I have not held that he is clearly with n it, but having given the matter very careful con- sideration I use the word "properly" advisedly. This really disposes of the case before us, but the question I have now in my mind is whe- ther this Ordinance 6 of 1902, having
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