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Colonial Cases

R. v. Dyan, 1875

[criminal procedure]

R. v. Dyan

Police Court, Shanghai
9 February 1875
Source: The North China Herald, 11 February 1875

Feb. 9th

Reg. v. JOSEPH DYAN.

   The defendant was summoned on the joint complaint of three likin runners, named Le See Fang, Ku-qua-cue, and Yen Teah-kuien, for assault and robbery, on the evening of the 28th January.

   Mr. MYBURGH, for the defendant, who is a native of Aden, and does not understand much English, said that before going into the case, he must take an objection to the summons.  There were three distinct offences charged in one summons, - assault, larceny, and robbery, which he submitted was quite irregular.  In the second place, there were three prosecutors named in one summons, and that he submitted was also irregular, and asked that his objection might be recorded.

   His WORSHIP said that as to the first that the charge amounted to only one, robbery - robbery being larceny with violence.

   Mer. MYBURGH said that the fact of there being three prosecutors named in the summons was his chief objection.  He thought three different summonses should have been taken out in a case like this, because each of the three men appeared to have a cause of action against the defendant.

   His WORSHIP said there was no objection to a defendant being charged with robbing several persons, if it was all one transaction.  However, he did not think the defendant would be prejudiced by it.  Further, it was by far the more convenient course, for if three summonses had been issued, the testimony of each witness would have had to be taken three times over, whereas the whole case could not be gone into once for all.

   The Court then proceeded to hear evidence, Heding acting as Chinese interpreter.  The first complainant called was

   YEH TEUH-QUIEN, who deposed - I am a runner in the employ of the opium Guild.  On the 21st day of the 12th moon, (the 28th ultimo), about seven o'clock in the evening, a Chinese was carrying opium in a bag into the Mo-ta-kee opium hong, in the Canton road.  I and two other runners seized ten balls of opium from him, and had carried them some distance towards the Police Station, when three foreigners came up, and began to assault us.  They took away from us six balls of the opium.  One of the runners had a quantity of hair torn from his head, and another was injured on the finger.  We then went on to the Police Station with the other four balls, and one of the foreigners accompanied us.  The defendant came in afterwards.  The inspector sent a constable with us and the opium to the Mixed Court.  The defendant is one of the three foreigners who assaulted us.  He had a stick in his hand, which the Police saw.  We were waiting outside a tea-shop, watching the hong, which was some six houses distant, as we had heard a hint that opium was to be taken there.  The man had the bag under his arm.  A coolie who had been dismissed from the Mo-ta-kee hong, was with us, and told us it was opium that was in the bag.  When we saw the man with the bag enter the passage of the Mo-ta-kee hong we went and seized him.  He resisted and cried out that we were robbing him.  We said we would go with him to the Police Station. We took the bag from him, and looked into it.  There were ten balls of opium in it.  We told him we were runners.  I took possession of the bag, with the opium in it.  The two others runners were bringing the coolie along.  No other persons had come up at this time, - nobody from the hong.  We had got only three or four Chinese houses distant, when three foreigners came running after us.  They did not come from the Mo-ta-kee hong.  They did not say anything, but commenced to beat and kick us.  In the assault, the bag fell and burst. I picked up three of the balls, another of the runners one.  I do not know what became of the other balls.  There were many people round.  The three foreigners kept the people back, and were picking up the balls.  The defendant was taking an active part in this, and was using a stick, beating us with it. Two of the foreigners went away, the third took hold of one of the runners by the hair, and went to the police station.

   Cross-examined. - We did not go directly to the police station because there are so many dealers in smuggled opium in that locality.  I do not know where the opium came from, but the coolie who was carrying it, came from the Yung-tah hong. (A coolie was here called into Court, and witness said he was not the man who was carrying the opium.) The defendant was the man who assaulted me.  He kicked me on the back, while I was stooping down to pick up the opium.  The others did not assault me.  I burned round, and saw the defendant kick me.  All three foreigners were together, and there was a  crowd of people.  When the bag broke, the opium balls rolled about the ground.  The defendant picked up two balls.  A tall man also picked up some.  I did not see any Chinese pick up any.  We have a card from the likin Guild to show our authority.  We all showed them to the foreigners.  Our cards are given up at the end of the year.  We have not received new ones yet.  We could not seize opium without the cards to show our authority.  I charged the defendant, because he has assaulted us twice.  Did not charge the other man who went to the station, because I did not know his name.  The police told us to come here and lay a complaint.  I complained to the police of the robbery.  The defendant also struck Le Sien Fang's finger.  We had not taken the opium to the guild before the foreigners came up.  It remained in our possession until it was taken to the Mixed Court.

   His WORSHIP asked what the defendant's case was going to be?

   Mr. MYBURGH - I shall contend that there is not a tittle of evidence to show that the opium is the property of the guild, and in support of my contention I shall cite the case of "Reg. v. Rudick" - (Archbold's Criminal Pleadings, page 279) - on which it is decided that where property has not reached the hands of the master it shall be held to be the property of the servant who has it in charge.  Then there is the question of intent.  I can prove that the opium is the property of the defendant, and that he, seeing his property was being  seized by these people, merely went to its protection.

   His WORSHIP - But evidence of his ownership cannot come from him.  It must come through you.

   Mr. MYBURGH. - Yes, the defendant's mouth is shut; but I can prove that he paid duty upon this opium, and that it was in the possession of one of his coolies at the time it was seized.  That will be my defence.  I cannot identify the opium in any way, because balls of Patna opium are all of the same appearance, but I can prove he had paid duty on opium.

   His WORSHIP said he would consider the last point raised, and if he should be of opinion that it was correct he would direct a fresh summons to be issued, or amend the present one in that particular, after which the defence must go on to satisfy the Court that the defendant was retaking his own property.

   The case was then adjourned.

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