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Colonial Cases

R. v. Morbrook, 1875

[wounding]

R. v. Morbrook

Supreme Court for China and Japan
Hornby C.J., 15 January 1875
Source: The North China Herald, 21 January 1875

 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, January 15th.

Before Sir EDMUND HORNBY, Chief Jusge.

REG. v. SALIMAN MORBROOK

Wounding with a Knife.

   The prisoner was indicted, on three counts - 1st, for wounding with a knife, on the 23rd November, 18754, causing grievous bodily harm; and, for an assault, causing actual bodily harm' and 3rd, for a common assault.

   The prosecutor was a Chinaman, named Hsu Zin-sheng; the prisoner was an Arab, or native of Muscat, who had formerly served on board the P. & O. steamer Delhi.

   Mr. BROUGHAM MILLER appeared for the defence.

   The following answered to their names as jurymen, and went into the box, but were not sworn, the prisoner not being formally arraigned, for reasons which appear below: - Messrs. Rowley Miller, H. R. Hearn, R. Johnstone, T. G. Williamson, and F. T. Williams.

   The JUDGE asked if there was an interpreter present?

   YAN HEDING, the Consular interpreter, was in Court, to interpret for the prosecution; but there was no one present who could interpret Hindoostanee or Arabic.

   Acting Superintendent STRIPLING said he had despatched a messenger for one, who would probably be in Court presently.

   The JUDGE, after an expression of regret that the Jury should be delayed, tested the prisoner's knowledge of English, by reading the indictment over to him, and asking him if he was guilty of the offence imputed to him.

   The prisoner uttered some almost inarticulate sounds, but did not seem to understand what had been said to him.

   The JUDGE - The Court cannot proceed without an interpreter.  These men (alluding to the prisoner) serve in our ships a number of years, but they never understand English when it suits their convenience not to do so.

   The Court sat for some time in solemn silence, during which the jurors in waiting quietly departed, leaving their five lees fortunate brethren sitting in the box, one of whom, with much resignation, requested that a message might be sent to his mafoo to take his trap home.

   Another interval of silent waiting followed, during which three grave-looking, but dirty Chinese entered by the public door, followed in haste by a police sergeant.  This official whispered something to

   Mr. STRIPLING, who afterwards informed the court that the sergeant had been unable to find an interpreter.

   The JUDGE - Then I cannot detain the Jury any longer.  The prisoner must be remitted to prison. (To the Jury)- Gentlemen, you are dismissed.

   Mr. BROUGHAM MILLER - Would the Court, before the Jury are dismissed, consider the question whether the prisoner is a British subject or not?

  The JUDGE. - Have you been able to communicate with him?  No one else has.

   Mr. MILLER - No, I have not.

   The JUDGE - Then for his own sake the prisoner had better go back to gaol.  If that question is raised, and the prisoner prove not to be a British subject, nor the subject of any Treaty Power, he will have to be handed over to the Chinese authorities.  It will be better in the interests of the prisoner not to raise the question.

   Mr. MILLER asked if the adjournment was sine die? If so, it would be rather hard upon the prisoner, who had already been in gaol for some time.

   The JUDGE said the adjournment was not occasioned by the absenters of witnesses, for they were all present; but because there was no interpreter, and the trial could not proceed without one.  His Lordship added that if, ultimately, the prisoner be found guilty, he would of course take his previous imprisonment into account.

   Mr. MILLER - Yes, my lord, we none of us suppose you will do your worst.  But suppose he is found not guilty?

   The JUDGE intimated that he had mentioned the best course under such unlooked-for circumstances.

   It was stated that the prisoner had been detained in gaol because the prosecutor was unable to leave the hospital.

   Mr. MILLER said the wound appeared not to have been a very serious one.

   The JUDGE, referring to the surgical testimony taken at the committal, read to the effect that if the wound had been very little deeper, it would have been very dangerous.

   The Court shortly afterwards rose, and the accused was taken back to prison.

 

Hornby C.J., 2 February 1875
Source: The North China Herald, 11 February 1875

 

LAW REPORTS.

H.B.M. SUPREME COURT.

Shanghai, Feb. 2nd.

Before SIR EDMUND HORNBY, Chief Justice.

REG. v. SALMAN MORBROOK.

Wounding with a Knife.

   The prisoner, an Arab, or native of Muscat, was indicted on three counts:- 1st., for wounding with a knife, on the 2nd November, 1874, casing grievous bodily harm; 2nd, for an assault, causing actual bodily harm; and 3rd, for a common assault.

   The prosecutor was a Chinaman, named Hsu Ziu-sheng.  The case was fixed for trial on the 15th January, but was then obliged to be postponed for want of an interpreter of the Hindostanee language.

   Mr. BROUGHAM MILLER, who appeared to defend the prisoner, said before the jury were called he would like to make a statement, which the Court would act upon as it thought fit.  Since the prisoner was brought here on the last occasion, he had been taken out of the custody of the Sheriff - out of gaol - and privately cross-examined by an interpreter at Pooting.  It was at the same time perfectly well known that he was represented by Counsel, and he (Mr. Miller) would like to know after that, whether his lordship would think of trying the case at all?

   His LORDSHIP - What cross-examination was he subjected to?

   Mr. Acting-Superintendent Stripling replied that he was not aware there had been any cross-examination of the prisoner.  Nothing of the kind had been communicated to him.  The prisoner was taken from the gaol under and order, and then to Pootung to see whether a man employed there could understand his language, so as to be able to act as interpreter in Court on the trial.  The sergeant who took the prisoner over to Pootung told him (Mr. Stripling) that he was simply asked a question or two with that view.

   Mr. MILLER said it was a singular thing that the interpreter was not taken to the prisoner in gaol.

   His LORDSHIP suggested that the man could not be made to leave his work at Pootung to go to the gaol.

   Mr. MILLER still thought it was something strange that a prisoner in gaol should be taken our of the custody of the Sheriff, and cross-examined by an interpreter.  That might be strong language, but it seemed to him to have been the case.

   His LORDSHIP said it was strong language.  It had been stated that the man was taken to answer a few simple questions, to ascertain the interpreter's knowledge of his language.

   Mr. MILLER - And I say he was cross-examined.

   Mr. STRIPLING - Prove it, - I repeat he was not cross-examined.

   Me. MILLER - Your books will prove it - that will show where the sergeant was, on that day.  It is a strange proceeding to take a man out of the custody of the Sheriff, and afterwards try him.
   His LORDSHIP - Call the Jury.

   The Interpreter, a man of colour, from the Pootung signal-station, as was understood, was first sworn; Heding, the consular interpreter, acting for the prosecutor and witnesses, who were all Chinese.

   The following were then sworn of the Jury - Messrs. P. Fabris, F. Gillman, J. McGregor, J. Sharp, and W. H. Short.

   The prisoner, on being arraigned pleaded not guilty.

   Prosecutor, examined by Mr. Stripling, deposed - I am a carpenter, and live in Hong-kew.  I remember the evening of the 22nd November last, I was coming down from Shanghai in a wheelbarrow, and had got to the Garden Bridge.  I was in the act of paying the wheelbarrow man.  It was on the north side of the bridge.  While in the act of paying the wheelbarrow man, the prisoner stabbed me between the shoulders.  I was in the act of turning round, and saw two cloyed men, one was tall and the other short.  The prisoner was the short man.

   By his LORDSHIP - There was no quarrel going on between me and the prisoner.  I do not know if there was between any other persons.

   Examination resumed - After I was stabbed, I was placed on a wheelbarrow, and taken to the Police station.  I had cried out for help, and the prisoner ran away towards the bridge.  I was afterwards taken to hospital, where I remained thirty-five days.  The wound bled a good deal. (Two of three coats worn by the prosecutor on the occasion were produced, the third was said to have been left in hospital.) When I war stabbed, I fell down, and only saw the prisoner for an instant.  The tall man was about fifteen feet distant at the time, and there was nobody else near except the wheelbarrow man.  The wound is healed, but when the weather changes I feel pain, and also when I am at heavy work.

   Cross examined by Mr. MILLER - It was on a Sunday, and dark in the evening.  I did not see two other darker men than the prisoner pass by.  The prisoner was just behind me on the right hand side.  I only saw the two men I have named.  No doctor came to me at the police station.

   Mr. MILLER pointed out that, in the prosecutor's deposition before the Magistrate, he swore that a doctor did come, and questioned him upon it.

   Cross examination resumed - I did not say that a doctor came to the police station.  I was taken immediately to the police station.

   His LORDSHIP - It does not say so here.  It merely says, "I was put in a jinrikisha and taken to the station.  A doctor came.  I was taken to the hospital."

   Cross examination resumed - When I was stabbed, I fell down and did not know anything for the pain.  I remember what took place at the station. I did not hear the prisoner and the other man making a noise. They were standing upright.  I saw a flash as I was stabbed.  It was like a knife - I received a blow, fell down, and saw the flash.  It was a knife, but I cannot say if it was long or short.  It reached the bone, and caused great pain.  I do not remember a policeman coming up at the time.  When I fell down, I put my hand on the woodmen, and some one came up, said I was wounded, and called for the police.  I did not carry on a conversation with a native policeman.

   A Sampan man next deposed - On the night previous to the 22nd November, I was engaged by two men.  The prisoner was one of them.  They did not pay me.  I saw them next day in Hongkew, and asked for payment.  They did not then pay men.  I insisted on their paying, and the prisoner drew out a knife, stabbed another man and then ran away.

   By His LORDSHIP - When I saw the prisoner with the knife, I ran away.  It was at the foot of the bridge.

   Examination resumed - When I first met the men it was in Bamboo Town.  I followed behind them to the bridge.  I was still asking for payment.  Prisoner drew the knife, came towards me, and I ran away.  A man was getting off a wheelbarrow and was paying the collie, and the prisoner stabbed him.  I was then standing by, and saw the man struck and fall down.  It was moonlight and about half past seven.  I saw a knife in the prisoner's hand.  I pursued the prisoner, and a native policeman also joined in the pursuit.

   By His LORDSHIP - The two men were men of colour, and were a little intoxicated.

   Examination resumed - When I saw the prosecutor fall down, I saw blood on his back.  The prisoner was the shortest man of the two - the other man was a little distance off, and when the cry was raised, he also ran away.

   Cross examined - The prisoner and the other man had a bottle of wine with them.  It might have been water.  I live in Hongkew, and had fastened my sampan to the jetty.  On the night before, I took the prisoner and the other man to the P. & O. steamer.  I am not regularly employed for those ships.  When I asked them for payment, they beat me, and pushed me overboard.  I fell in the water, and was picked up by another sampan, which had also taken off some seamen.  They beat me with their fists.  On that night, there was no one on board to whom I could complain about it.  I was landed at the jetty.  Next day I saw the men in Bamboo Town.  The knife used was a clasp-knife.  Prisoner took it out from under his clothes.  It was a small clasp-knife, (pointing to about five or six inches in length.)  The blow was intended for me.  I saw the prisoner coming with the knife, and drew back.  I was 20 feet off, when I saw the other man struck.  There was only one blow.  I did not see two other dark men on the night the prosecutor was stabbed.  On the night before, there were two other dark men with them.

   A Chinese assistant in the hospital at Hongkew was next called.  He dressed the wound, which he described as on the upper part of the back, between the shoulder blades.  It was about half an inch deep, and was bleeding.  If the wound had been half an inch deeper, it would have penetrated the lungs.  The man remained in the hospital a little over five weeks.

   Cross-examined - It was inflected either with a knife or glass.  If it was done with a knife, it must have been a blunt one, as it was not a clean cut.  From the appearance of the edges of the wound, I believe it was a blunt instrument.  It did not touch the bone.

   The Native Constable, who took the prisoner to the police station, was questioned by Mr. Miller, and said he searched the prisoner.  He was given into custody on a charge of stabbing.  The sampan man made the charge.  Did not see if the prisoner's hand was stained with blood, nor winter there were any blood marks on prisoner's clothing.  Do not know of the prisoner was examined for those things.  He arrested two men who were pointed out by the sampan man.  Saw nothing of the knife.

   This closed the case for the prosecution, and

   Mr. MILLER briefly addressed the Jury on behalf of the prisoner.  He said that the line of defence he should adopt, was that the prisoner knew nothing at all about the matter.  It had never been clearly traced that there was a knife in his possession, neither was there any evidence tendered that he had ever been in the habit of carrying a knife.  He was a fireman and not a seaman.  There was no doubt the prosecutor was stabbed, but there was no proof that the prisoner carried a knife.  He was a man not likely to carry a knife, being a fireman employed down in the stoke-hold of a ship.  He (Mr. Miller) did not think he could say much more than the jury had already heard.  The prisoner was found close to the scene of the action, he was arrested not far away, and the sampan man said he saw the blow struck.  All the witnesses, it must be remembered were unsworn - and that was in their favour.  If the Jury or himself were in the wiriness box, they would have to be sworn, but Chinese witnesses had the advantage of not being sworn.  He did not think the evidence had brought the case home to the prisoner, and would remind the Court that the prisoner had been a long time in gaol already, which he hoped would be borne in mind.

   His LORDSHIP - Do you want the evidence interpreted to the prisoner?

   Mr. MILLER - No, I do not.

   His LORDSHIP then summed up the case to the jury very shortly, giving an outline of the principal facts as he proceeded.  The prisoner owed the sampan man some money.  The sampan man met him, and then followed him, importuning him for payment.  The prisoner did not like this, and resented it by drawing his knife, with which he struck a blow at the sampan man.  He avoided it, and the blow came down upon a third party who happened to be within its range, and was just getting off a wheelbarrow at the time.

   His Lordship had no reason to suppose anybody was telling a story in the matter.  It was just such a wound that would be given in that way.  The sampan man saw the knife and drew back, the other man received the blow instead.  The question was,  did the prisoner do it?  He was met by the sampan man, who asked him for the money, and then the blow was struck.  That was very strong evidence that he was there.  It was true the knife was not found, but the prisoner ran away; and if he had not done something there would have been no need for him to run away.  In a very short time he was captured.  The sum of it was that the sampan man asked him for money, he drew out his knife to frighten him, and wounded another man. 

   There was no other theory of the prisoner's innocence.  It was very likely the prisoner was a little drunk, and did not like to be importuned for money.  That was what the evidence indicated, unless the prisoner was able to explain in some other way, which had not been done.  He simply denied it, and said he know nothing about it.  If the Jury were of the opinion that the prisoner was the man who struck the Chinaman, and inflicted the wound, they must find him guilty; and if they thought he was not the man who struck the Chinaman, they would find him not guilty.

   The Jury, after some minutes deliberation, asked whether the prisoner was running away when he was arrested?

   His Lordship - The sampan man says so.

   The Jury almost immediately returned a verdict of "guilty."

   His LORDSHIP - You could come to no other verdict.

   The Interpreter, by direction of the court, asked the prisoner if he had anything to say why he should not receive sentence.

   The prisoner said he was not guilty, and knew nothing of it.

   His LORDSHIP, taking into consideration the fact that the prisoner had already been in prison for ten weeks, sentenced him to a further imprisonment of six weeks only.

   His LORDSHIP directed that $10 should be given to the prosecutor, as some compensation for his injury and consequent loss of work for more than five weeks.

   The Court then rose.

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