September 27, 1909.]
arrived at the wharf he was arrested by the police. Witness asked the constable why he was arrested. The constable told him to " shut up," and he would hear all about it when he got to the station. “How can people accuse a hard-working man like me of committing an offence of this nature?" asked the witness, “when I have not got time to go into the street?"
In cross-examination accused said he did not write a letter instead of going to Macao, because he was not sure that it would reach its destina- tion. Further he could not write, and would not ask anyone to do it for him, as it would be too much of a favour.
Would it be more of a favour than asking your master for the loan of 83 ?
On the question being put the interpreter announced that the accused was talking at ran- dom about his master's business being a dye- shop.
Mr. Alabaster-It doesn't matter, leave it at that! (To accused)—Did you go to the wharf
at Macao alone ?—Yes.
You did not take any coolies with you?— No. If I had the police could have called them to bear witness against me.
Another witness, a brother of the accused, was questioned concerning certain statements he had made before the Magistrate.
On being pressed regarding one of his state- ments, the prisoner passed a remark in Chinese which the interpreter translated. It was, "If you did say so, stick to it.”
The jury found the prisoner guilty, and his Lordship sentenced him to two years' imprison- ment with hard labour.
Thursday, September 23rd.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
EXTRADITION PROC/ DURE: A PRISONER DISCHARGED.
His Lordship delivered his decision in the case in which the Captain-Superintendent of Police was called upon to show cause why Sun A Wan, at present detained in Victoria Jail, should not be delivered from custody.
Mr. M. W. Slade, who was instructed by Mr. Otto Kong Sing, made the application for habeas corpus, and Mr. C. G. Alabaster, who was instructed by Mr. H. L. Dennys, from the office of the Crown Solicitor, appeared on behalf of the Acting Attorney-General to show cause.
His Lordship said he was sorry in this case to have again to pick a hole in the procedure followed in extradition cases, but he was bound to. On the three important points raised the prisoner was entitled to his discharge on habeas corpus. Two of the points appeared to be very formal, but one of them seemed to His Lordship to go down to the very roots of the administra- tion of justice. A magistrate had no right, nor had any judge, to delay justice. When he had. -made up his mind, he was bound in duty to deliver his judgment. This, of course, could not be dealt with in any formal way; it was left entirely to the judicial discretion of a judge or magistrate. There was in France a well-known offence which was called denial of justice, but such an offence was very difficult to prove. In this case he had a letter before him in which it was distinctly stated by the Crown Solicitor that the magistrate had made up his mind. The magis trate stated that he was not prepared to convict on the first trial, as there was only one witness who identified the prisoner as taking part in the robbery. Yet the prisoner, thereupon be coming entitled to his discharge, was brought up on the 4th and remanded again till the 10th. Apparently the second remand was in order that another warrant should be served upon this man.
He thought there was a tendency to complaisance in the administration of the law of extradition, and certainly the second warrant could have been undoubtedly executed on this prisoner, and he would not then have been entitled to his discharge. Being entitled to his discharge meant being entitled to be free, and he was not free in prison. The other point was that the magistrate was not sitting in Court. This again appeared to be a very technical point, though it was certainly an im. portant one. A magistrate had both minis
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CHINA OVERLAND TRADE REPORT.
277
a different class of evidence on every count.
His Lordship-Iwee a little shadow of differ- ence between the actual crime and the accessory before the fact.
terial and magisterial duties to perform, and the magisterial fnnotions could not be performed anywhere else except in Court. In taking the preliminary inquiry there were two points; first, the ministerial taking of evidence, and secondly, Mr. Potter-Apparently there is a difference the magisterial decision as to whether the ma-between piracy and robbery at sea. If there is, gistrate should commit. In an extradition case the difference is this: The Crown must prove the last duty laid upon the magistrate was mas that these mariners were put in fear, and by gisterial, and no magisterial or judicial reason of that fear the goods were taken, and functions could be performed out of Court. taken against the mariners' will: that is piracy. Without the proclamation proclaiming a cer- Robbery at sea has nothing to do with putting tain place to be a Court, no place was a mariners in fear of their lives, and that must Court, and this could be decided by the embarrass the defence. simple fact of how the offence of contempt of court could be committed. It could not be committed in the verandah of a prison, or per- haps in the street. He had been referred to the Magistrates' Ordinance, two sections of which dealt with the place or building in which a magistrate sat. In both places the reference to a court itself dealt entirely with a Court. Therefore he was of opinion that of the steps, The Attorney-General then informed the certainly the last one taken was not in Court at Court and jury that the charge was brought all, and that vitiated the whole of the proceeding-under sub-section 2 of section 31 of Ordinance and entitled the prisoner to his discharge. 5 of 1865, robbery by two or more persons
armed.
Mr. Potter, on behalf of Mr. Slade, asked that the prisoner be discharged without being brought formally before the Court.
An order was accordingly made for the dis- charge of the prisoner.
IN CRIMINAL JURISDICTION.
ALLEGED PIRACY.
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Leung Shiu and Lai Fong were indicted on charges of piracy and receiving pirated goods. Prisoners pleaded not guilty, and the following jury was empanelled:-E. M. Hazeland (fore man), J. J. Lossius, S. E. da Luz, J. Rodger, W. Schmidt, F. F. Barretto and W. L. Leask.
Sir H. S. Berkeley, K.C., Acting Attorney. General, instructed by Mr. F. B. L. Bowley, Crown Solicitor, prosecuted, and Mr. Eldon Potter, instructed by Mr. M. Reader Harris (of Messrs. Wilkinson and Grist), appeared for the first defendant. The second was not represent- ed.
Mr. Potter said he wished to call his Lord- ship's attention to the indictment, which con- tained six counts. The first was piracy: the second, accessory before the fact; the third, receiving pirated goods; the fourth, robbery on the sea, the fifth, accessory before the fact of this robbery; and the sixth, the ordinary charge of receiving. It was a well-known and established rule that where there was more' than one felony -on one indictment the prosecution should elect as to what charge they would proceed with, because it would be obviously embarrassing to the defence if the prosecution were allowed to add as many felonies as they liked. In point of law they were quite entitled to add twenty felonies, but in point of fact the presiding judge invariably compelled the prosecution to state on which charge they would proceed, and Counsel asked his Lordship to do so in this case.
His Lordship-I understand these to be different ways of looking at the same facts?
Mr. Potter-Robbery on the sea and piracy cannot be the same thing, because the prosecu- tion would be obviously embarrassing us by putting in the same thing under different counts.
His Lordship-It would be very embarrassing if you had to meet two sets of facts, but the facts are the same. Between piracy on the high seas and robbery on the sea there is no difference.
Mr. Potter-There is a very substantial difference. If there is any distinction at all between piracy and robbery on the sea, the offence will be entirely different.
His Lordship The offence is only the facts that occurred.
Mr. Potter-But the two charges are entirely different.
His Lordship-The facts are the same.
Mr. Potter-That cannot be so. The prose- cution have two counts; one of being accessory before the fact, and one of piracy. To be an accessory before the fact a man must have been absent; to be a pirate he must have been present. Your Lordship will notice that they have indic- ted the same man as an accessory and as pirate. The whole point of my objection is this: if the prosecution wish to establish these six counts they must of necessity bring forward
a
His Lordship-It seems to me that a simple way is to charge them with robbery within the waters of the Colony.
The Attorney-General-I will do that to save time, but I am not bound to. I will make the charges "robbery in the waters of the Colony, and receiving stolen goods," and will enter a nolli prosequi as to the other charges.
His Lordship Is not there any clause in this Ordinance about Admiralty jurisdiction?
The Attorney-General-I don't think there is in this larceny Ordinance. We are not dealing with an offence within the jurisdiction of the Admiralty. Proceeding, the Attorney- General said the story the jurors would hear relate by witnesses was one which showed a carefully, coolly-planned attack upon a junk, skilfully executed and safely accomplished. That the prisoners had been subsequently brought before the Court was due to the activity, the intelligence and the skill of the police: in handling the charge after the facts which were brought to their knowledge, which was not for several days after the offence was committed. The facts shortly were as follows: On the 18th July last a junk named the San Fuk Hop left Hongkong harbour for Suitung with a large cargo on board, valued at about $14,000. She left the harbour about 3.30 in the afternoon and reached Chungchau or Dumbbell Island, about 6 or 7 p.m. on the same day. There being then no wind, she anchored some short distance off the island. She had on board á orew of thirteen men, including an ac- countant who had charge of the cargo on behalf of the owners thereof. About nine o'clock that night the people on the junk heard_two_blasts of the whistle of a steam launch. The launch next ran alongside, and three men boarded the junk. One or more of them informed the accountant, whom they came across first of all, that they were officers of the law, and de- manded to see his permit for carrying arms. As a matter of fact, in the cargo of the junk there were four revolvers, 20 rounds of ammunition, and a number of pounds of powder. accountant said he had a permit, and turned to get it. As soon as he turned, however, a bag was thrown over his head, and he was bundled Four or five of the crew into a sort of cabin. were put in with him, and the place was fastened up. The next thing he became aware of was the trampling of many feet on the deck above him, then the sound of the anchor being hauled up, and after that the movement of the junk through the water, which continued for some hours. Then followed the rattling of a chain and the anchor- ing of the junk. After many hours the anchor was hoisted again, and the junk sailed away, and ultimately, after several days' confinement in this cabin, where he and the other people were from time to time fed by rice being let down, there was a bump and jolt, and subsequently they were let out to find that they were stranded on a sandbank miles down the coast. That was all the accountant could tell, and the history was taken up later when the The accountant police made investigations. was only one of the thirteen on board the junk who could be called as a witness. The others were dispersed over all parts of China, and had not returned to the Colony. The accountant, however, made a complaint to the Chinese Authorities and in due course he was for warded on to Hongkong, where information was laid with the police, and inquiries were set afoot. The result of those inquiries led to the arrest of the two prisoners in Hongkong, but that there were a good many others engaged in this bold, daring and successful robbery the
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