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Colonial Cases

R v. Wilson [1891]

[shipping, endangering ship - criminal procedure]

R. v. Wilson

Police Court, Shanghai
Mowat AJ, February 1891
Source: North China Herald, 27 February, 1891

H.B.M.'S POLICE COURT.
Shanghai, 21st February, 1891.
Before R. A. Mowat, Esq., Assistant Judge.
R. v. WILSON.
  George Wilson, able seamen of the P. and O. steamer Bengal, was charged on a summons with committing an unlawful act tending to the destruction or serious damage of the ship, to wit smoking in the hold of the vessel in close proximity to inflammable cargo.
  Mr. R. E. Wainewright appeared to prosecute on behalf of the P. and O. S. N. Co., and Mr. H. P. Wilkinson was for the defendant.
  Mr. Wainewright, in opening the case, said the charge was brought by Captain Barratt, master of the Bengal, against George Wilson, an able seaman who was acting as quartermaster. It arose out of a fire which broke out on board the ship on the evening of Saturday, February 14th, in the main hold. This part of the ship had been occupied during the day by coolies who were unloading cargo and sending it upon deck to be taken on shore. The cargo consisted among other articles, of bales of Bombay yarn. Accused was the quartermaster in charge of the hold at the time during which the coolies were at work, His duty was to look after them and to prevent smoking; and the charge was that he himself smoked. The coolies ceased work at 5.30, and at eight o'clock some Bombay yarn or the coverings of it were discovered to be on fire. Fortunately any serious damage was prevented by prompt measures; but it would be shown that the accused was leaning against bales of yarn, smoking, and the inference was that the fire was caused by ashes or lighted tobacco from his pipe. It was however, unnecessary to prove that the fire was actually caused by the act of the accused, all that was required being to show that he did an act calculated to injure or cause damage to the ship or cargo.
  Mr. Wainewright then read the 239th section of the Merchant Shipping Act of 1854, which provides that "any master of or any seaman or apprentice belonging to any British ship who by wilful breach of duty or by neglect of duty or by reason of drunkenness does any act tending to the destruction of or damage to such ship or tending to endanger the life or limb of any person on board of such ship shall for every offence be deemed  guilty of a misdemeanour, etc." The learned counsel added that it must be evident that smoking a pipe among the ship's cargo was calculated to lead to a fire, and the fire was calculated to lead to the destruction of the ship or a portion of it.
  George Killwick Wright, chief officer of the Bengal, said - I was on board on the 24th. The coolies in the main hold left off work at 5.30 p.m. Accused was on duty in the hold. He was not told to prevent smoking, but it is well known in the service that it is the duty of a quartermaster to prevent smoking in the hold. Fire was discovered at eight o'clock in the hold, at a point at which Manchester goods were stowed underneath and Bombay yarn on top. One of the stewards reported smoke coming up the hatchway; and on lifting up the tarpaulin, I found the hatchway full of smoke. On examining the hold after the fire had been extinguished, I came to the conclusion that the fire had originated in a case of camlets and a bale of Bombay yarn, which were next to each other. They were both badly burned, and their appearance was consistent with a light having been dropped between them. I do not think that a man smoking t this place could have been seen from above, but I am doubtful on the point. I questioned the accused the same evening.  He said he was sure there had been no smoking. Accused came to me on Monday morning with the inspector of police, who had a pipe exactly similar to the one produced. Accused said it was his pipe.
  Cross-examined - No report was made to me that the accused had been smoking. There were two or three tiers of bales above the two bales in which the fire apparently began; in fact there were bales all round these two.
  Re-examined - A light dropped on top of the bales might fall down between the corners. The fire lasted until 9.45.
  Albert Borlase Armitage, third officer of the Bengal, deposed - I was on board on Saturday. I was at the scene of the fire three minutes after it was reported. The discharge of cargo had been going on since Thursday.  The fire broke out three feet forward of the hatchway, in the starboard wing. There were two or three, I am inclined to think three, tiers of bales above the bales in which the fire appeared to have originated. There was a stanchion against which these two bales were stowed. Lights and tobacco might have fallen down the side of the stanchion, and the fire might have run along the gunny-bag, in which the Bombay yarn was packed, to the centre of the bale.
  Cross-examined - I was last in the hold at a quarter to four. About half the bales in the hold had then been cleared out, and the coolies were taking out lead. There was nothing to prevent the quartermaster from being on the fourth tier of bales, but he was not likely to be in such a place. There were three or four Chinese coats on the bales when I left the hold. After the fire, accused and I had a conversation about it, and we agreed that it was probably caused by the ignition of matches which the coolies carry in small boxes. I had previously formed thisd theory on my own account. Accused told me on Sunday that he had prevented several coolies from taking away horse-shoes under their coats on the day of the fire. As far as I know, no charge had been made against him at that time.
  At the conclusion of the witness's evidence, the court adjourned till Monday at ten o'clock.
23rd February.
  The hearing of this case was resumed.
  Albert Borlase Armitage, recalled, said he now recollected that it was on the Monday morning that accused said he had stopped coolies from carrying away horse-shoes. Accused had previously said his pipe had been taken away.
  The witness Wright, recalled by Mr. Wainewright, said - On  Monday morning I was present when some pipes were shown to the stevedore's men at the Police Station.  About a dozen pipes  were placed on a table, and the men, of whom there were about five, were asked to pick out the pipe which they had seen in accused's possession. One of the men identified the pipe which was similar to the one produced.
  William Barratt, master of the Bengal, deposed - I went down into the hold before the fire was put out. I looked to see where the fire had begun, and I came to the conclusion that it had originated near one of the stanchions. There was room for lighted tobacco to fall down between the bales at this point. I do not think the fire could have been caused by a box of matches falling out of a coolie's pocket.
  Cross-examined - It did not strike me that the fire was caused by lighted tobacco, until it was reported by the coolies that accused had been smoking. There was a large opening, large enough to put a baby down, near the stanchion. I do not think the bales were moved before I came. My own idea at the time was that the fire was due to spontaneous combustion.  I do not think so now, because I could find nothing to support the theory.
  Obaldo Kluth, inspector of police, deposed  - I caused the stevedore's men who had been working in the hold, to be arrested on Sunday morning.  They have been detained ever since. I suspected they had caused the fire.
  Cross-examined - I had the men searched, first of all. No matches were found on them. I put questions to them. They denied having smoked in the hold. I detained them. In the afternoon three of them told me through an interpreter that the quartermaster had been smoking in the hold. These three were separated from the others. Later on two more said the quartermaster had been smoking.
  Frederick George Keeling, detective inspector - I questioned the stevedore's men after they were taken into custody. I called them into another room, one by one, to identify accused's pipe from several others.  The coolie now in court picked out the pipe produced as being one which the accused had been smoking on Friday and Saturday. In all, ten of the men said they had seen the accused smoking.
  Cross-examined - Accused made no difficulty about producing his pipe when I asked to see it.
  Hu Pao-lu, one of the stevedore's coolies, deposed - On Saturday I was in the hold of the Bengal, where I saw accused smoking a pipe. (Witness here selected accused's pipe from two others in court.) Accused was sitting or leaning on the bales, close to the mast.
  Cross-examined - I saw accused smoking behind the mast between decks on the afternoon of the second of the three days (ending on the Saturday) during which cargo was being discharged. He was not smoking when I went down into the hold on Saturday. I did not see him light his pipe at any time. He smoked several times. No other foreigner came down to the hold  that afternoon while I was there. When accused was smoking he was lying down on top of the bales. There was no loose iron on top of the bales. My coat was hung up. I did not see where the other coolies' coats were.  I do not smoke and do not carry matches. I have not talked about the matter with the other coolies. I have been with them for two or three days.
  By the Court - Accused could not have been seen from the deck.
  The Court adjourned till next day at ten o'clock.
.  .  .  
24th February.
R. v. WILSON.
  The hearing of this case was resumed.
  Mr. Wilkinson pointed out that, according to a text-book on the Merchant Shipping Act, the Court might have refused to hear evidence, it having been stated by the captain that no report was made to him of the charge against the accused, and it being a fair inference from this that no entry was made in the log-book as the Act required.
  His Worship said the point should have been raised at the beginning of the case, and even then it was a question if he would have refused to receive evidence, as it was doubtful whether the provision regarding an entry in the log-book applied to proceedings under section 239.  Besides, nothing had been asked in evidence about the log-book.
  The Court then proceeded with the examination of the stevedore's men.
  A coolie, (No. 2) deposed that he saw accused smoking in the hold on Saturday, and also on the two previous days. On Saturday afternoon accused was smoking, off and on, from three o'clock till five. Witness himself was not a smoker, and had not talked with the 1st witness or any one else at the police station about this case.
  Wong Ah-nih, native detective, stated - I  went to a tea-shop on Sunday morning. Twelve of the stevedore's coolies came there. I asked if any of them had been smoking in the hold. They all denied having done so. They were taken to the station, where I searched them. Neither tobacco nor matches  nor pipes were found on therm.  Nothing was found on them.
  No. 3 coolie deposed that he saw accused smoking in the hold on each of the three days.  On Saturday afternoon he was smoking a pipe near the mast at 4.30.
  Cross-examined -  Witness never smoked. He denied that he was smoking on the ship's deck at two o'clock on Saturday afternoon. He saw only one foreigner in the hold on Saturday. He had not discussed the matter with any of the other coolies.
  No. 4 coolie stated that he saw accused smoking in the hold on Saturday afternoon near the mast. Accused sometimes put his hand, with the pipe in it, into the pocket of his coat.
  Wong Ah-nih, recalled by order of the Court, said he told the head stevedore on Sunday morning that there had been a fire on board the Bengal. The head stevedore then sent for the three coolies, and started with witness to a tea-shop where they expected to meet the coolies. On the way to the tea-shop they met one of the coolies, and the head man told this coolie to go and tell the others they were wanted by the detective. Witness did not say why he wanted the men until he reached the tea-shop. They came there afterwards.
  No. 5 coolie deposed that he saw accused smoking a wooden pipe in the hold on Saturday afternoon. No other foreigner came into the hold during the afternoon. The coolies were afraid to smoke in the hold.
  Cross-examined - Witness usually smoked on the wharf or at the tea-shop. On Saturday three coolies smoked on the wharf at tiffin time. They obtained a light for their cigarettes from a coolie on the wharf.  None of them carried matches. Witness did not see the foreigner light his pipe.
 Collie No. 6 testified to one foreigner having been in the hold on Saturday. Witness did not see him or anyone else smoke.
  Coolie No. 7 swore that accused smoked in the hold on Saturday.
  Collie No.8 said he saw smoke coming from the foreigner's mouth and nose.
  After some further evidence of the same character from other coolies,
  Mr. Wilkinson called a coolie named Pao Ah-ching, who deposed that he saw accused go down into the hold. Witness did not see that accused had a pipe.
  Captain Barratt, recalled, sad the mast acted as a ventilator, there being holes cut in it below the deck of the hold, causing a strong draught upwards, which would draw smoke with it. Near the mast would be an advantageous position for anyone who wanted to smoke without being observed.
  Cross-examined - I do not suppose that this would occur to the quartermaster.
  At the conclusion of the case for the prosecution, Mr. Wilkinson asked his Worship to say whether the accused would be allowed to give evidence on oath in such a case.
  His Worship replied in the negative. There was nothing in the Merchant Shipping Act to allow accused persons to give evidence on oath.
   The Court then adjourned till next morning.
25th February.
  The hearing of this case was resumed.
  Mr. Wilkinson called
  John Richards, who deposed - I am a quartermaster on the Bengal. This is my second voyage on the Bengal. I know the accused. He smokes a wooden pipe like the one produced. I have only seen him use one pipe. If he had used another pipe during the voyage I must have seen it. He smokes the ordinary plug tobacco. The accused and I mess together. I have seen him smoking in the quartermasters' cabin  and on deck, between working hours. On Saturday, the 14th, he was smoking from 12 to 1. He was smoking in the cabin at half-past two. The other quartermaster and I were talking, and woke Reed, who grumbled about it. Accused then threw his pipe into his bunk and went out. I was in the cabin most of the time after that, but did not see him again until the coolies finished work at 5.30, when he came back to tea. After that I saw him cutting up some tobacco and I think he lit his pipe and went out. Only one in the cabin, Reed, keeps his tobacco ready cut. Plug tobacco is hard to light, and generally requires more than one match. The jacket produced is Wilson's.
  Mr. Wilkinson called his Worship's attention to the jacket having no pocket on the right hand side, and having such a large hole on the left hand side pocket that it would be impossible to carry anything in the pocket.
  Mr. Wainewright, after examining the jacket, said the hole seemed to be an old one recently enlarged.
  Examination continued - A man would not be likely to carry a pipe in his trousers pocket, for fear of breaking it. Wilson's habit is to keep his pipe in his bunk. When the alarm of fire was raised I believe accused was in the cabin. Reed was first in the hold and I was second. When the hatches were taken off the flames burst out. Reed and I went down into the hold each with a hose. It was necessary to break the bales away from each other with a crowbar, they being tightly packed. I do not think lighted tobacco could fall down between the bales. From the position of the bales I should say it was impossible for fire to run from the stanchion to the centre of the bales which were badly burned. The point was about six feet from the stanchion. The bales came close to the deck above, and it would be necessary to crawl at one point to get on top. I do not think a man would be likely to smoke lying down abaft the mast, with the cargo sloping from forward to aft. It would not be a comfortable position. The coolies at the mizzen hold were smoking about the deck during Thursday, Friday, and Saturday. The hatchway coolie was one of those who smoked. I was present when accused was asked for his pipe by the detective. He went straight to the bunk, took out the pipe and gave it to the officer.
  Cross-examined - On Saturday afternoon I went out of the cabin at about a quarter-past three, for a quarter of an hour, Wilson came up from the hold at half-past two and had a smoke. This was not unusual if there was an officer in the hold to look after the coolies. I am sure the jumper produced is the one which Wilson was wearing.
  Re-examined - Wilson on this day had to look after two holds.
  Robert Reed, quartermaster, deposed -  The pipe produced looks like the accused's. He has only one pipe. The quartermasters usually keep their pipes in their bunks. At half past two I was asleep in my bunk, and was aroused by accused and the last witness talking. I complained about it, and Wilson threw his pipe on his bunk and went out. I remained in my bunk, reading. Wilson did not return that afternoon. The pipe was lying on the bunk from a quarter to three o'clock till five. I saw Wilson take the pipe out of the bunk at tea-time and smoke it.
  By the Court - When the detective inspector showed me accused's pipe and asked my whose it was, I declined to answer. I thought it would be better for Wilson if I said as little as possible. I said to the detective, "Least said soonest mended."
  His Worship - In certain cases it is desirable to say at once what you know.
  Examination continued - The bales were so tightly packed that I could not get the chain-sling round one of them.
  Cross-examined - Richards went out of the cabin shortly after Wilson, and did not return. I refused to tell the captain to whom the pipe belonged. I have been a policeman and I know it is necessary to be very careful about such matters.
  Detective Inspector Keeling, recalled by Mr. Wainewright - On Monday morning I asked Reed if he knew the pipe. He said, "No." I asked him if he knew it was Wilson's pipe.  He said, "No." The chief officer said that was nonsense; Reed must know whether the pipe was accused's or not. Reed replied that a little was made a lot of in a policeman's hands and that he had been a policeman himself. Reed also said he would not tell the captain whose the pipe was, as he might as well tell witness. Reed added that he did not want anything to do with it.
  The hearing was then adjourned till next morning.

 

Source: North China Herald, 6 March, 1891

LAW REPORTS.
H.B.M.'S POLICE COURT.
Before R. A. Mowat, Esq., Assistant Judge.
R. v. WILSON.
  The hearing of this case was resumed, Mr. Wainewright again appearing for the prosecution, and Mr. H. S. Wilkinson for the defence.
  Armitage, the third officer, recalled, said he had given instructions to the accused to look after the reserve hold as well as the main hold. Accused was in the reserve hold from 15 to 30 minutes at a time. It would not be right for a man to come up from the hold and go and smoke in his cabin when on duty.
  The witness Richards, recalled at the request of Mr. Wilkinson, gave some further particulars as to the quartermasters' cabin. There was a curtain in the cabin, so hung that witness might have come in to his bunk without being seen by Reed from his.
  Mr., Wilkinson, before proceeding to address the Court on behalf of the defendant, asked that his client might be permitted to make a statement.
  His Worship refused the application, quoting the case of R. v. Millhouse, tried in 1885, reported in 15 Cox's Criminal Cases. In that case, which was tried before a jury, Lord Coleridge  said that where, in accordance with a resolution of the majority of judges, an accused person was allowed to make a statement, the proper time for him to do so was after his Counsel had addressed the Court; but where the accused had had witnesses called on his behalf, he could not be allowed to follow with a statement of his own, and perhaps ingeniously supply what was omitted in the speech of his counsel or the evidence of his witnesses; such a course would, to a clever man, be an unfair advantage, and could not be allowed.
  Mr. Wilkinson - May I comment upon that case?
  His Worship - Comment is argument, and I have already refused the application.  I now merely give you the case as my authority.
  Mr. Wilkinson then began his speech for the accused. He said that it had been shown that accused had smoked after breakfast, after dinner, and after tea.  Was it likely that a man, with opportunities of coming up out of the hold and smoking without blame, would risk his whole career and the safety of the ship for the sake of a few minutes' smoking in the hold? The learned counsel proceeded to comment upon what he called the slovenly way in which the prosecution had been conducted as regards the Chinese witnesses. These coolies were roused out of their beds on Sunday morning, were told that there was something wrong, and that they were wanted by the detective. Having been working in the hold of the Bengal the day before, they must have very soon known that there had been a fire on board when they were asked if they had been smoking in the hold.
  With their knowledge of the methods of Chinese justice they naturally came to the conclusion that it was better that any one should suffer but themselves, and they agreed to throw the blame on the foreigner. Three of them came forward with this story and found salvation, and the others followed suit. At the station, one of them, asked to pick out accused's pipe, made a false guess. Another of them recognized accused's pipe or hit upon it by chance in Court, but Mr. Wilkinson did not ask any of the others to select one pipe. It was a test which the learned counsel for the prosecution did not like to risk.
  Mr. Wilkinson went on to point out that the position near the mast indicated by the coolies as being where accused was smoking would have been very uncomfortable, and was one in which the smoker would be liable to be caught at any moment by an officer coming down. The statements of the coolies at to the time at which accused was smoking were quite unreliable. Different coolies had stated that accused smoked from 12 to 1.30, from 1 to 2, from 2 to 3, at 5, at 4.30, and at 5 - in fact the accused had been persistently smoking all the afternoon to an extent sufficient to ruin his constitution.  It might be argued that the coolies had no watches and could not tell the time with exactness; but he suggested that men who were telling the truth would not have been so anxious to state hours. No doubt the coolies lied when they said that none of them smoked. One of them admits that they did smoke on the wharf at tiffin time.
  As to the evidence for the defence, it had been shown that it was the accused's habit to keep his pipe in his bunk. One of the coolies, asked to say where accused carried his pipe, said he put it in a pocket on the right-hand side of his coat. The coat (a jumper) had been produced in court, and it was shown that it had no pocket at all on the right-hand side. The left-hand pocket had so large a hole in it that it would be impossible to carry anything in it; while no smoker was likely to carry his pipe in his trousers pocket. The evidence, too, that accused's pipe was left in his bunk from three o'clock till five was absolutely unshakable. It was in evidence that accused said he had caught some of the coolies trying to steal scrap iron; and this would supply a motive for them to bring this charge against accused.
  Mr. Wainewright, in summing up the case for the prosecution, said the evidence showed that the fire was caused either by accused or the coolies. The theories of incendiarism and spontaneous combustion were virtually out of the way. There was nothing to support the ingenious suggestion that the fire might have been caused by a coolie drooping a box of matches. None of the coolies carried matches on board, and their head man was not at all likely to let them do so. As to the suggestion that the evidence for the prosecution was a concoction, it might be retorted that there was nothing easier than for the two quartermasters to agree to do what they could to get their companion off.  These two witnesses for the defence had really destroyed themselves like the historical Kilkenny cats, as would be seen if their evidence were put together. A vague theory had been started regarding a curtain; but it was exceedingly improbable that one man who was moving about sorting clothes at one end of the cabin should not have been heard or seen by a man who was wide awake at the other end.
  His Worship, in giving judgment, said - The accused is charged with smoking in the hold of the Bengal. It has been shown that a fire took place shortly after the time of the alleged smoking, but it is only incidentally necessary that I should come to a conclusion as to what the origin of the fire really was.
  Mr. Wainewright has observed, and I agree with him, that there is nothing to support the theory of spontaneous combustion and nothing to show anything tending in the direction of incendiarism. There are only two theories left; either that the fire was caused by matches being dropped from the coolies' pockets or by smoking. There has been a great deal of evidence called by the prosecution, and unfortunately, in the nature of the case, it is only Chinese evidence, which is always received with a certain amount of caution.
  On the part of the defence there have been two witnesses called, and I think it will be convenient that I should deal with the witnesses for the defence first, because if I believe the witnesses for the defence there will be an end of the case. Reed and Richards were the two men who were called in accused's favour.  Are they telling the truth? That is the question I have first to consider.
  As to Richards' evidence I will not say much but as to Reed's I am bound to say I disbelieve it. It seems to me that the evidence is that of a man who had made up his story. He pledged his oath that all the time from 23.30 or 2.45 to 5 o'clock the pipe of the accused as lying in accused's bunk. He said it had been left there. Now, that is the man who did not see Richards remain in the cabin. I am asked to believe that he could see a small pipe but could not see Richards in the cabin at all. His manner impressed me unfavourably. He fenced with the detective. A man who has a simple straightforward story to tell would never hesitate to tell it.  I cannot conceive a man who would not, if he could truthfully, clear his name by saying, "Why, the pipe was lying in the cabin the whole afternoon from three o'clock till tea time." If he could have said that with truth, he would have said it at once. Instead of that he will admit nothing. He says he will give no information at all, and adds that he thinks it will be better for Wilson to say as little as possible. If the pipe was lying there the whole of that time, why should be not have said so at once? I believe he had made that part of the story up. He could have made his statement just as well on Monday morning as ten days later to me here. What Mr. Wainewright has suggested about the pipe is precisely what passed through my mind when the evidence was given. The man goes to his cabin when he should not have done so, for he is supposed to be in one of the other of the holds. He leaves the hold and, instead of going to the other in the discharge of his duty, he goes off duty into the cabin  and takes a smoke about an hour and a half  after he had had a smoke at meal time. He talks to Richards and they wake up Reed, who grumbles, and accused goes out, in a pet as Mr. Wainewright suggests, and then when in the hold he wants his pipe, for he seems to have been in the habit of smoking very frequently. I am quite prepared to believe - and this will save Richards from any imputation of untruthfulness - that the accused might very well have gone back to where he might have thrown the pipe down, picked it up and taken it down into the hold.
  If I do not believe the story for the defence, I have nothing to do but believe the evidence for the prosecution, for I do not see anything to make me believe that that story is made up. Some of the coolies did not say the man was smoking.  Not one of them said he saw the man light his pipe. I think that if they wanted to bring it home very conclusively, some of them would have said this. Not one of them did.
  Nothing has been said to make me doubt the story of the prosecution. The coolies were taken quite unawares in the morning. The fire had occurred at eight o'clock the night before. These men were fetched in the morning and brought to the tea-house, knowing only that the detective wanted to see them. There was nothing to suggest to them, and they could not have known, that there had been a fire; and when they were taken from the tea-house to the station and were searched there was nothing upon them in the nature of matches or materials for smoking. I mention that now because it entirely disproves the theory set up by Mr. Wilkinson in his very ingenious and very clever speech for the accused, that the fire was produced by matches carried by the coolies.  I am sorry I should have to come to the conclusion I have done, but I am not able to come to any other.
  It seems to me that this man is addicted to smoking and cannot go very long without it. He has his smoke at one o'clock and is smoking when he should not do so, in the cabin at half-past two. He is interrupted there, and he goes after another smoke. It was put to me by Mr. Wilkinson that all the accused had to do was to go back to the cabin and have his smoke out. If he had he would have been rebuked, as his presence had already been objected to by Reed.
  Mr. Wilkinson - I thought your Worship did not believe Reed's evidence.
  His Worship - I can believe some of it. Moreover, Richards' statement was the same - when they woke Reed up he objected. Accused would not go back after having experienced that. I do not entertain any doubt that the man is guilty of the offence and it is my duty to convict him.
  His Worship, addressing the accused, then passed sentence as follows:
  Your counsel has done everything counsel could do for you, but I have come to the conclusion, and I am sorry for it, that the charge is made out against you. It is a very serious offence you were guilty of, in the circumstances in which you were placed. A fire took place which in all probability was the result of your smoking. It might have been from ashes or from half-burnt tobacco or from the matches you used.
  This tobacco requires, it appears, a great deal of lighting, and you may have had to strike several matches and one of these may have fallen down and set fire to the covering matting which smouldered on. That is how I believe the fire occurred, and it was a gross breach of duty for you, who were sent down to prevent other men from smoking, to smoke yourself.
  Considerable loss has resulted, I presume, from this act of yours. It might have been attended with far greater loss. If the fire had made more headway, or if the steamer had been less well supplied with appliances for extinguishing fires, or if there had not been a sufficiently large body of men at hand, the fire might have destroyed the whole ship.
  The punishment to which you are liable is to be imprisoned for six months or to be fined. I think it is a case, entertaining as I do no doubt about it, in which I must pass such a sentence upon you as will not only make you remember it but will cause all other quartermasters to take it as an example of the danger of such acts as yours. I shall imprison you for a period of three months with hard labour.

 

Source: North China Herald, 13 March, 1891


LAW REPORTS.
H.B.M.'S SUPREME COURT.
Friday, 8th March, 1891.
Before Sir R. T. Rennie, Chief Justice, and R. A. Mowat, Esq., Assistant Judge.
  In the matter of a special case stated under Section 121 of the China and Japan Order in Council of 1865, on the application of the defendant in Reg. v. George Wilson.
  Mr. H. P. Wilkinson for the accused.
  Mr. R. E. Wainewright for the prosecution.
  The special case stated by the Assistant Judge was as follows:-
  The defendant appeared before me on the 21st February, 1891, on a summons charging him that he in Saturday the 14th February, 1891, at Shanghai in China, then being an able seaman on board of a certain ship called the Bengal, unlawfully and by wilful breach of duty did a certain act tending to the destruction or serious damage of the said ship, to wit, smoked tobacco in one of the holds of the said ship in close proximity to inflammable cargo.
  The charge, which was brought under the 239th section of the Merchant Shipping Act of 1854, was heard on the 21st, 23rd, 24th, 25th, and 27th February.  Counsel appeared on both sides throughout the hearing and witnesses were called for the defence. At the conclusion of the case I considered the charge proved, and sentenced the accused to three months' imprisonment with hard labour.
  I found as facts that the accused had in wilful breach of duty smoked in the hold of the ship in close proximity to inflammable cargo, and that  such act tended to  the destruction or serious damage of the ship. In giving my decision I stated that the fire which occurred in the hold where the accused was proved to have been smoking, might very well have been caused either by burning tobacco filling from his pipe, or from still burning matches which he had used for the purpose of lighting his pipe, having been dropped down amongst the bales of cargo. No other reasonable or probable cause of the fire suggested itself to my mind, or was suggested to me on the accused's behalf.
  At the conclusion of the evidence for the defence, the counsel for the accused asked me to hear the accused's statement. On the authority of R. v. Millhouse (15 Cox Crim. Cases, p. 622) - the accused being defended by counsel and having called witnesses, - I refused to allow this course. That, however, was a jury trial, and upon consideration I am now  of opinion that the proper course under our Rules and under what appears to be the practice in Magistrates' courts at home, would have been to have heard the accused's statement and declined to hear any speech from counsel in defence.
  It was also not in accordance with our own Rules or with the home practice before magistrates to allow (as I did) the prosecuting counsel to make any observations in reply to evidence adduced by the accused - though no objection was raised to this by the accused's counsel.
  In both these particulars the proceedings were inadvertently based on the practice at jury trials instead of that in summary proceedings before magistrates.
.  .  .
Mr. Wilkinson now applied that on the special case stated by the Assistant Judge, an order should be made quashing the conviction.
  Mr. Wainewright assented.
  The Chief Justice, in giving judgment, said - In this case it is admitted that there have been two technical mistakes made.  Magistrate and counsel alike have joined in conducting it as if it had been a jury trial instead of adhering closely to the practice in Magistrates' courts.  It may seem curious to the lay mind that the fact of a police case having been dealt with and conducted on the lines of a trial before the Supreme Court should invalidate the proceedings, but so it is. Had the prisoner been put on trial before me and a jury, I might very likely have ruled, as the Assistant Judge did, - that the statement of the prisoner could not be received when he was represented by counsel and had had witnesses called on his behalf; and at such a trial a summing up in reply by counsel would of course have been strictly in order. In the Police Court, however, it is quite clear that the prisoner should, both according to our rules and the practice at home, have been allowed to make a statement, whilst the functions of counsel should have been confined to examination and cross-examination of witnesses and no summing up in reply been heard from them. The conviction must be set aside and the prisoner discharged.
  The Assistant Judge - I wish to add a word or two. On several grounds I regret extremely what has happened. It is not at all likely that anything which the accused could have said would have altered the opinion which I formed on the evidence, and which I still hold. Where his counsel failed, he himself could scarcely succeed. Still, as it is possible that he might, he ought to have had the opportunity instead of his counsel. It follows therefore that the conviction should be set aside.

Source: North China Herald, 13 March, 1891


MISCELLANEOUS ARTICLES.
THE CASE OF THE BENGAL 'S QUARTERMASTER.
7th March.
The greatest satisfaction will be generally felt that the man Wilson, the able seaman acting as quartermaster on the P. and O. steamer Bengal, who was  sentenced by Mr. Mowat to three months' imprisonment for smoking, has been discharged by the Supreme Court, though only on technical grounds.
[Continues with comment on Assistant Judge and Protest Meetings.]

 

Supreme Court for China

Shanghai, 6 March 1891

Source: Supreme Court of China (Shanghai), Judges' Notebooks, Vol. 3 (1880-1893), The National Archives (U.K.), FO1092: 340, p 333

 

R. v Jas. Wilson.

In the matter of a special case stated under Section 121 of O. in C. on application of the prisoner.

Mr. H. P. Wilkinson, for prisoner.

Mr. R. G. Wainwright, for prosecn.

Special case submitted.

Mr. Wn asks that conviction be quashed.

Mr. Wt doesn't oppose.

Quashed accordingly.

R. T.  Rennie,  CJ. & R. A. Mowat,  A.J.  6.3.91

 

Source: North China Herald, 13 March, 1891


MISCELLANEOUS ARTICLES.
THE CASE OF THE BENGAL'S QUARTERMASTER.
7th March.
.  .  .  on technical grounds. Even on this ground Sir Richard Rennie's judgment cannot have been very pleasant hearing to the Assistant Judge who is virtually told that he made a flagrant mistake in the conduct of the case; so difficult is it for a potential chief judge and leading counsel to realise that they are only in a police court.
  The conviction and sentence of Wilson seemed to most people in Shanghai to be a sad miscarriage of justice. The only evidence that Wilson smoked in the hold was that of the coolies, whose evidence was of the slightest value under any circumstances, and many of whom cheerfully swore that they never smoked,  while one of them at least saw Wilson put his pipe in a pocket which, it was proved, had no existence. There was no proof whatever that the fire on the Bengal was caused by Wilson's pipe, and as Wilson had charge of two holds, it is quite possible, if the fire was caused by smoking, that the coolies took a surreptitious smoke in one hold while he was engaged in the other.
  How the captain of the Bengal and the agent of the P. and O. Company ever allowed the action to be brought is a mystery. The Bengal has, we presume, five officers; and yet the supervision of two holds , while she is discharging, is left to an able seaman acting as quartermaster. Meanwhile, the P. and O. Company having got their servant three months' imprisonment, on the ground that he set fire to their steamer, deny the consignees, some of whose cargo was injured by the carelessness of their own servants, their cargo unless they sign a general average bond. If it is said that Wilson was sentenced for smoking, not for setting fire to the ship, we can only say that the sentence, even if the crime were proved, was excessive; and we ask our readers to note the following extract from the issue of the Hongkong Telegraph of the 18th February:-
  "At the Harbour Office, before Comdr. R. Murray Rumsey, Marine Magistrate, Michael McCarthy, boatswain, was charged with disobeying the lawful commands of Captain Thomson, of the British steamer Benlomond, on the 16th instant. The defendant admitted the charge but pleaded he was sick and wished to be discharged. He was sentenced to seven days' imprisonment with hard labour."
 The Assistant Judge, we observe, holds to his opinion that Wilson was smoking in the hold; we are sure that the vast majority of people in Shanghai do not believe that the evidence of the coolies was sufficient to convict him of the crime; and there is an equally general conviction that his punishment, from which he had nor fortunately escaped, was inordinately severe.
.  .  .  
THE PROTEST MEETING. - I
9th March.
All British residents are invited to meet at the Shanghai Club at a quarter before noon tomorrow "to consider a petition and protest against the proposed changes in the Judicial Establishment and Consular Services  in China." Better late than never.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School