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Colonial Cases

Campbell v. Coutts, 1867

[wrongful dismissal]

Campbell v. Coutts

Supreme Court of China and Japan
24 April 1867
Source: The North-China Herald, 27 April 1867




April 24.

Before Sir E. HORNBY.

And Messrs. Daly, Campbell, Evans, Figges and Levy, Jury.

CAMPBELL v. J.  C. COUTTS and others

(Municipal Council of Shanghai.)

The plaintiff claimed Tls. 1,826 damages for wrongful dismissal from the police force.  Hr was unrepresented by Counsel, so at the suggestion of the Chief Judge, his evidence was elicited by questions from the Court.

... A. CAMPBELL. - I joined the police force on the 8th September.  I had then been in Shanghai two weeks.  One of the detectives picked me out from among the inmates of the Sailor's Home, and brought me to Mr. Penfold who admitted me for three months on trial.  After the expiration of the three months I entered into agreement (produced) to serve in the force for three years.  I served under that agreement to the 31st January, when I got notice that I was to be dismissed, in consequence of an affair that happened on the 15th January.  Mr. Penfold said he was sorry for me, and he would give me a certificate to enable me to join the force at home. [Certificate of good conduct, steadiness and sobriety, signed b y Mr. Penfold, produced].  I subsequently asked whether I could get my passage home from the council - Mr. Penfold said no.  The result was that I eventually brought this action. [Petition claiming the sum of Tls. 1,826 for wrongful dismissal, read.]  I received, undetr my agreement, the same pay as the other constables.  There was no complaint against me prior to the affair with the gentleman in Mr. Hayes' employ.  I have since been out of employ; but am now temporarily attached to the Consulate as constable.

To Mr. MYBURGH. - Mr. Penfold gave me a book called the Rules and Regulations of the Shanghai Police Force.  I read it.  Mr. Penfold explained it to me from time to time, and I always acted as he told me.  On the evening of the 15th January I did attempt to take Mr. Reid in custody for firing off crackers.  I asked him his name and he struck me, Mr. Smith also struck me.  At the time I attempted to take him into custody he did not tell me his name.  I did not know where the gentleman came from till I had been struck.

To a JURYMAN. - I attempted to take him into custody because he did not tell me his name.

To Mr. MYBURGH. - I was held by two of the party, and struck.  I did not strike him till he had struck me several times.  I did not strike Mr. Smith till some one threatened to throw me over the bund.  My instructions are that when I can ascertain who people are, I am not to apprehend them except for a very serious offence.  I am instructed not to make use of my truncheon unless in case of extreme emergency, or I am in danger of my own life.  Mr. Penfold told me I would have done much better not to use my truncheon.  I was earning L. 4 a month, on board the Peter Denny, as able seaman.  I am not fir to work on a ship now.

TO COURT. - Mr. Johnson told me if I would write an apology for what had done to Messrs. Hayes & Co., he would ask that I might be taken back.

This closed the plaintiff's case.

Mr. MYBURGH would not detain the Court long by the observations he had to offer.  The whole affair lay in a nutshell.  The jury had already heard the terms on which the plaintiff had agreed to serve in the police force; and would have gathered that the Council felt justified in dismissing him from their service in consequence of his conduct on the 15th January.

THE CHIEF JUDGE here wished to suggest that, had the plaintiff been represented by Counsel, he probably would have been advised to put in evidence the proceedings at the trial which took place before the Assistant Judge, in connection with this case.

Mr. MYBURGH would object to their being received.  That was a mere summons for assault.  There might have been such provocation as justified a magistrate in dismissing the case as against the policeman; and yet sufficient blame attaching to the latter to justify the Council in dismissing him.

THE CHIEF JUDGE only wanted the Jury to be out in possession of the facts of that trial.  Perhaps Mr. Myburgh would not object to refer to them.

Mr. MYBURGH would do so, and read the decision then delivered.  But the issue before the Jury was, whether the Council were justified in dismissing the man from their service.  There was no doubt that they were so in cases of disobedience of instructions, or if he had been guilty of such conduct as rendered him unfit for his duties.  They would have to consider whether, under the instructions he had received, the plaintiff was justified in attempting to arrest gentlemen for so trivial an offence.  The plaintiff declared that the gentlemen in question had not given their address.  This would be distinctly denied by Mr. Reid, who would day that he was told they belonged to Olyphant & Co's house.  If he (Mr. M.) could succeed in establishing that the plaintiff did know where they came form, it would prove that the plaintiff had been guilty of a clear breach of instructions.  Also if he could succeed in showing that he had, on the night of the 15th Jan., assaulted Mr. Reid, it would show clearly that he was not a fit and proper person to discharge the duties of his office.  It was clear that he had lost his temper and inflected most unjustifiable blows with his truncheon.  Even if the gentlemen concerned had chaffed him or made us of bad language, that was no excuse.  The duties of a policeman in a settlement like Shanghai were arduous, he admitted.  But looking at the difficult position of the Council, it behoved them to give most strict instructions, and constables to act in such a way as not to render their office odious.

In the event of the jury finding that there had been no such clear breach of instruction as would justify dismissal, they must not give vindictive damages.  A man was not entitled, as a matter of principle, to full wages for the unexpired term of his services.  Looking at the fact that the plaintiff was an able-bodies man, it was for the jury to say what wages he would be likely to earn during the remainder of his time of his agreement with the Council; and if they thought his position with the latter more lucrative, to award him the difference between what he was likely to earn and what he would have earned in their service.

... C. PENFOLD, Superintendent of police. - The instructions are that no one shall be arrested for trivial offences, especially gentlemen who can easily be found, unless they persist in creating a serious disturbance.  The truncheon is never to be used except a man's life is in danger, or for the purpose of arresting a man for felony.  These instructions I have communicated to the plaintiff.  The rules and instructions which prevail here are generally similar to those prevailing in the police at home.  With the exception of his conduct on that night, I had no fault to find with the plaintiff.

TO PLAINTIFF. - You asked whether I would give you a certificate.  I never told you that Mr. Hayes was the cause of your being dismissed; [???] [???] Mr. Hayes could have nothing to do with it.  You had a black eye, a mark on the nose and one on the side.  I don't know whether Mr. Reid bit you on the nose.  You had a mark on the nose.  Your cutlass was taken from you at Olyphant's compound.

F. REID, a clerk in Olyphant & Co. - on the evening of the 15th January I went to see a friend off.  In pursuance of an old custom we were letting off crackers in Nanking road.  I did meet with the plaintiff.  He spoke to me, telling me to stop letting off crackers.  I told him I wouldn't.  I continued firing off crackers.  He followed us to the Bund, and then told me he would take me to the Station House, if I didn't stop firing.  I did not stop and he attempted to take me.  I shook myself loose.  I did not strike him at that time.  He approached me again as I was bidding Mr. Seaman good bye, and knocked me down insensible.  I must have risen almost as soon as I was knocked down.  I judge from the circumstances.  [THE CHIEF JUDGE. - A sort of Autumn rebound.]  Another man was down when I got up.

Witness continued. -  I then went and pitched into him.  I gave him Olyphant & Co.'s address, before he knocked me down.  Some one else gave him Olyphant & Co.'s address when he first asked me.

TO PLAINTIFF. - You did not ask me for my address until I reached the Bund.  I did not throw crackers in your face.  I wish I had.  I did not bite your nose.  I don't think any one bit it.  I don't recollect your asking me for my address on the Bund.  I deny striking you and calling you an ugly name before you struck me.

E. U. SMITH. - I was one odf the party.  I did not see the policeman till we got on the jetty.  He asked for our address, or said he must take us to the Station. We eventually gave him our address.  He retired.  We fired off the remainder of the crackers, and were getting into a boat when he came up, collared Mr. Reid and insisted on his going to the station.  Before Mr. Reid could turn round, Mr. Seaman shoved the policeman and the policeman knocked Mr. Reid down.  I went to his assistance and the policeman knocked me down too.  I was in sensible for a second or too.  I did not strike him.

TO PLAINTIFF. - I did not see Mr. Reid strike you before you struck him.  I gave you my address loud enough to be heard.  You knocked us down on the end of the jetty.  They followed you up and caught you at the opposite end of the Bund.  I took away your sword myself.

TO COURT. - I saw the Constable on the ground; but did not see him knocked down.

OWEN BULLOCK. - I first saw the policeman on Heard's jetty.  He remonstrated at our firing off crackers.  I told him distinctly twice, before a blow was struck, that if he came to Olyphant & Co he would be answered any question.  [This witness gave much the same evidence as the others, as to the circumstances of the assault.] I never struck you.  I merely held your truncheon.

This closed the case for the defence.

THE PLAINTIFF urged, in  support of his case, that he was a stranger in Shanghai and did not know the gentlemen concerned; did not even know their names and addresses till he was summoned before the Court to answer to a charge of assault.  He had merely gone by the instructions he received; and it had been proved here before, that he was doing nothing but his duty.

SIR EDMUND HORNBY. - Gentleman of the Jury, I feel I need not warn you against the influence of any prejudice which is sometimes felt against policemen, arising out of the mode in which they sometimes discharge their duty.  It is not often an easy one to discharge, as it requires a combination of qualities not often combined in one individual.  In this case we have heard of the particulars of the affair which led to the dismissal of the Plaintiff from the force.  I am inclined, notwithstanding the evidence adduced to-day, to look rather at the result of the trial in which he was accused of having assaulted certain gentlemen on the 15th of January.  The summons was dismissed by the learned Judge who tried the case.  It was to be regretted he used his truncheon; yet great provocation had been experienced by him, and I am inclined to think that, looking at the time of night, and the convivial nature of the party which led to the affair on the Bund, if there was a want of discretion on the part of the Constable, there may also have been a want of very vivid recollection of the exact facts.  Be that as it may, however, I quite agree with Mr. Penfold's opinion that the Plaintiff was wrong in using his truncheon and that he ought not to have done so, and for many reasons I regret that he did so.  I think also that there was some anger and some violence, and one of the witnesses even now expresses his regret that he did not throw the lighted crackers at and under the nose of the policeman, shewing how strongly he then felt and now feels the latter's interference; but the question before you is not whether the plaintiff was justified or not in doing what he did do, but whether his conduct on this single occasion  justified his summary dismissal by the Municipal Council, whether a warning and a reprimand would not have been all that was required.

The man has an excellent character from Mr. Penfold and we are all liable to error.  It is stated that Mr. Johnson, the Chairman of the Council told the plaintiff that if he would write a letter apologizing for having struck the gentleman, he would get him reinstated in the force.  Now, if the man was discharged for unfitness, an apology would not make him one bit more fit for his post than he was, and his refusal to apologise is not the ground upon which the dismissal is justified.  There is no doubt that the man on the occasion referred to was severely punished by the persons he is alleged to have assaulted, and whom he undoubtedly struck.  The Council no doubt that that in the public interests the Plaintiff ought not to remain in the force.  Well then they had two courses open to them, to dismiss him at once as they have done, or to have dismissed him, making him some compensation.  It is for you to say what course they ought to have pursued.  If you think they were, in consequence only of the affair of the 15th January, justified in saying that showed him guilty of such misconduct as proved his incapacity to remain in the position of a police constable, then you must find you verdict for the Council; if however, you are of opinion that it did not justify that species of dismissal, then you must give the plaintiff such damages as he is, under the circumstances, fairly entitled to; not vindictive damages, for it must be supposed that what the Council did, was in the interest of the public.  They had no feeling against the man, who had, up to the event I have alluded to, conducted himself well.  You know what salary he was to have, and a comparatively small sum would be all that is necessary to send him home, to pay his wages since his dismissal, and to compensate him for the loss of a station, such as he held.  It is not a question of anger or haste on the part of the Council, but it simply is one of justification - was the offence one which must satisfy any one that the man was unfit for his situation?  If you think so, find for the Council, if you think it did not demand his summary dismissal, find for him, and compensate him in a spirit of fairness.

The jury retired, and in a few minutes returned, having found a verdict for the plaintiff, with 600 tales damages.

The JUDGE called Mr. Superintendent Penfold, and begged that he would wan the force under his command to be careful how they unwarrantably used their weapons, which they were certainly not entitled to do, except in the gravest case of self-defence, and that although the plaintiff had got a verdict with which he fully agreed, it was under peculiar circumstances and could not be held as a precedent.  Men were liable to be dismissed and it must, in the public interest be a very strong case, which would disentitle the Council to exercise a discretion and dismiss a man whom they thought unfit.  The judge trusted therefore that the force would take this warning as it was meant, and not  fancy because a jury had given this plaintiff damages on account of his dismissal - that they were at liberty to so conduct themselves as to merit dismissal and, when dismissed, get damages.

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