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Colonial Cases

Walker v. Malcolm, 1875

[opium trade]

Walker v. Malcolm

Supreme Court for China and Japan
Hornby C.J., 5 April 1875
Source: The North China Herald, 8 April 1875



Shanghai, April 5th.

Before R.A. Mowat, Esq.


Alleged Detention of Opium.

   Mr. H. BROUGHAM MILLER appeared for the plaintiff.

   Mr. W. V. DRUMMOND, instructed by the Municipal Council, for the defendant, who is a sergeant of police.

   Mr. MILLER, introducing the case, said what pretence there was for detaining the plaintiff's opium he did not know, but the defendant simply refused to give it up.  There were four balls of opium, valued at Tls. 50, and the facts were that on the evening of the 18th March, two of plaintiff's servants were set upon by some ruffians, and pillaged of the four balls.  The drug was taken to the Hongkew Police Station, and the defendant, who was on duty at the time refused to give it up.  The action was therefore brought to compel him to give it up, or, if he had parted with it in a way he had no business to, to make him pay its value.

   Me. DRUMMOND said he was instructed by the Municipal Council to appear for the defendant, who denied that he had detained the opium.

   Plaintiff was then called, and deposed - I am a merchant.  I believe I am registered as a merchant.  I recollect the night of the 18th March.  Between six and seven in the evening, I was taking four balls of opium for sale in Hongkew.  I had two servants with me, carrying the opium.  I walked faster than they did.  I missed them, and went home to my house to see if they were there.  They were not there, and I waited a little time, when they came, and said the opium had been taken from them and to the Hongkew Police Station.  I went there, and asked the man on duty to return to me my property - the opium.  He said the opium was not there.  Next morning I went to Mr. Stripling, and asked him the name of the officer who detained the opium.  He told me it was Sergeant Malcolm.  I have not got back the opium.  It is my property.  I value it at Tls. 50.

   By Mr. DRUMMOND - I had two servants in charge of the opium.  I believe they were seized at the Hongkew Bridge.  I believe the defendant is the man I applied to for the return of the opium.  I asked him for my property, and he said it was gone.  I do not recollect the exact words I used.  I stated that the property was four balls of opium.  Nothing more passed.  Next morning, I asked Mr. Stripling for the name of the officer who had detained my property.  He said it was Sergeant Malcolm.  He looked in the charge-book for the name.

   Mr. MILLER thought he need not carry the case any further, and that the evidence given was sufficient.

   His HONOUR - I think not.  You must trace the opium to the defendant's possession, and the evidence of the plaintiff's servants will probably be necessary.

   One of the coolies was then called, and through Heding, the interpreter, deposed - I am the plaintiff's coolie.  I remember the evening of the 18th of March.  I and another coolie were ordered to carry four balls of opium to Hongkew.  The purchaser went in front and my master followed behind.  My master's chop was on the balls of opium.  At the foot of the bridge, on the other side, there were about ten men in wait for us. These men took us to the Police Station.  They were runners, and they tried to snatch away the opium.  The purchaser ran away.  The opium was taken with us to the Police Station.  A policeman was sent with us and the runners to the Mixed court.  They were ordered to leave the opium, and go away.  We went back to the plaintiff, and reported the matter.  When at the Hongkew Police Station, the "head of the police," took the opium, looked at it, and then sent a foreign policeman with us to the Mixed Court.  The runners did not seize the opium at the foot of the bridge.  There was a struggle, and a native policeman came up, and took us and two of the runners to the station.  The other runners dispersed.  The opium was inspected at the Hongkew police Station, and then handed to the runners, who carried it to the Mixed court.  The opium was fastened round our waists, and of our own accord we unloosed it.  The police told the runners to take the opium to the Mixed Court, and a foreign constable was sent with then.  Our tails were tied together.  The runners' tails were not tied.  Our tails were tied at the foot of the bridge, by the native policeman.  I had done nothing more than carrying the opium.  My master's name was on the paper that was round the balls.

   By Mr. DRUMMOND - My master was not in sight when we were seized at the bridge.  He left us at the Garden bridge.  I am sure my master was not in front of us at the time.  I reported the matter to him immediately after we left the Mixed Court, at my master's hong.  I do not know the exact number of runners - they were about ten.  They seized us, and in the struggle a native policeman came up.  None of the opium was taken from us in the struggle.  It was round our waists when we got to the Police Station.  We were told not to take it out - we took it out of our own accord.  I can't be sure it was the defendant I saw at the Police Station.  Boysen went with us to the Mixed Court; our tails were untied before we went into the Police Station by the runners.  Boysen told the runners to tie our tails again, inside the Station.  He made signs with his hands that we were to be tied.  We did not see the Magistrate at the Mixed Court.  We were placed inside the court, and one of the officers came.  We were not taken before Chen.  It was then past seven o'clock.

   By Mr. MILLER - There was no charge made against us at the Police Station or at the Mixed Court.  We were told at the Mixed Court, to leave the opium and go away.

   The second coolie was not examined, it being stated that his evidence would be merely a repetition of that given by the last witness.

   Mr. MILLER wished to know whether the police intended to produce the charge-book?

   Mr. DRUMMOND said it could be produced if wanted.

   His HONOUR asked if an entry of the cases had been made?

   Mr. STRIPLING said there was no charge made, but an entry had been made in the occurrence book.

   His HONOUR said Mr. Miller should have given notice for the book to be produced.

   Mr. MILLER said he merely wanted to see what had been entered, and then intimated that his case for the plaintiff was closed.

   Mr. DRUMMOND said he would simply put the defendant in the witness box, to state what occurred at the Hongkew Police Station.

   ALEXANDER MALCOLM then deposed - I am a sergeant of police, and defendant in this case.  About 6.20 on the evening of the 18th March, the native constable at the Station gate informed me that two liken runners had brought four balls of opium to the Station.  I immediately went into the office.  I saw the runners and two other Chinamen there.  Four balls of opium were lying on the floor.  I did not examine them.  I told Boysen to get ready to go to the Mixed Court.  They all left at 6.29 - in a very few minutes. The runners carried the opium.  I examined the runners' cards.  They bore the seal of the Municipal Council, a number, and the signature of the Acting Superintendent, Mr. Stripling.  When I saw the collies in the Station, their tails were not tied.  They were standing six feet apart at that time.  They were tied by the runners when they left the Station; by the runners, without any direction from the Police.  I did not see any motion made by Boysen with his hands. I did not interfere with the opium at all.  The runners lifted the opium from the floor, and put it into their dress.  The plaintiff came to the Police Station about 8.45 the same night.  He said some opium of his had been stolen from two men in his employ, somewhere in the Hongkew Settlement.  He did not ask me to return it to him.  He said his business was worth Tls. 600 per month, that money was no object to him, and that he would give Tls. 10 reward for its recovery.

   Mr. MILLER objected to this evidence without a written statement to support it.  That was why he wished to see what was written in the charge book.

   Witness, examined by Mr. MILLER, said - I was in sole charge of the station on that night.  I knew the men were li-kin runners by the card.  If I had chosen to have forbidden the opium being taken from the Police Station, it might not have been taken away, but it was not in my power to detain it.

   His HONOUR said that the defendant was first sued for having detained the opium, and it appeared that fault was found with him for not having detained it.

   Mr. MILLER said his contention was that the opium should have been kept at the Station until it was claimed by the rightful owner.  Now, that the defendant had allowed it to be taken away, he was sued for its value.

   Examination resumed - My instructions are that when people come to the Police Station, and show their card of authority, to send the opium on to the Mixed court.  That is what is done in all these cases.  If I had seen that this opium bore the plaintiff's chop, I should not have detained it.  It was not my province to do so, and I know no more about it.

   P. C. BOYSEN deposed - I was instructed by Sergeant Malcolm to see the coolies and runners to the Mixed Court.  The coolies' tails were tied together, but they were not in my custody.  The Municipal Police had nothing to do with the matter.

   By Mr. MILLER - I believe I was sent to see that they were not molested on their way to the Mixed Court.  My instructions were to see them to the Mixed Court, and I had no more to do with them.

   This closed the case, and

   Mr. DRUMMOND said he should ask the court to dismiss the plaint. It was formerly the practice that opium seized in this manner was taken into the city to the Chinese Court there, but now these cases are taken to the Mixed Court within the Settlement, and brought before the Chinese Magistrate and Foreign Assessors, and the assistance of then Municipal Police is given to Chinese runners, as Revenue Officers, just as assistance is given to the Officers of any Consular Court  here.  That was the simple fact of the case.  The defendant had nothing more to do with it than that.  The opium had never been in his possession, and it was impossible for him to have detained it.

   Mr. MILLER said he did not know that the case was, if it was not as the plaintiff had stated it.  His servants were molested, taken into custody and then to the Police Station, where their master's property was taken from them.  Next, their tails were tied together, and with the runners, they were taken by Boysen to the Mixed Court.  If that was not being in custody, what was?  At the Police Station the defendant did not take the trouble to look into the matter at all, although the opium bore the chop of the owner, the plaintiff, and it had been detained so long now that the owner could not get it back again.  If there was any quibble in the case, it was a quibble to say that this was not a detention.  If, on the way to the Mixed Court, the coolies had tried to run away, Boysen would have stopped them, and yet he  said they were not in his custody.

   What power the Chinese police had in this Settlement, he (Mr. Miller) could not see.  They might as well come and  seize a man's watch and chain while he was walking in the Settlement, for money said to be owing to the Chinese Government.  Then there was an allusion to this class of cases.  What class of  cases?  This was a case in which the plaintiff had been pillaged, and his property taken away from him.  Mr. Stripling's telling the sergeant to send the opium to the Mixed Court constituted no authority, nor did it establish the fact that the property was in the possession of the runners; for the defendant had put it out of the owner's power to recover his property at all.

   His HONOUR - It is in the Mixed Court, is it not?

   Mr. MILLER - The owner does not know where it is.

   His HONOUR - I was informed this morning that the taotai and Mr. Medhurst would sit to decide as to who was the real owner.

   Mr. MILLER - That is more singular still.  Why should they sit to decide upon the ownership in such a case?  We do not say that Malcolm has done wrong, but that he had behaved carelessly and negligently, and so put it out of the plaintiff's way to obtain possession of his property.  What he should have done, was to have detained the opium in such a w ay that the owner might have got it again.  That he did not do.

   His HONOUR - It seems he did not detain it at all, but got rid of it as soon as he possibly could.

   Mr. DRUMMOND said the plaintiff went to the Mixed Court, on the following day, and made application for the opium, so there was no excuse for saying he did not know where it was.  He (Mr. Drummond) called to the recollection of the Court, the case of Mr. Loureiro, to which this case was precisely similar.

   His HONOUR commenced by reading his judgment as reported in the Herald of September 26th, [1974] and then went on to say that he did not see that he could decide differently in this case.  All the evidence showed that the runners and not the Police, had treated this man's servants as though they were criminals, but that did not amount to anything as affecting the case itself.  The Police Sergeant said he did not know whose property the opium was, and so sent it to the Mixed Court.

   Mr. MILLER - But you will remember that this opium bore the owner's mark.

   His HONOUR - Any hong name might be stamped on any thing.  Then, why did he not carry it openly?  Why should it have been concealed, and carried around the coolies' girdles?  Why not have carried it in an open and bona fide manner?  I must decide in this case as in the former one.  It is the second case of the kind, and I would recommend that the question should be decided once and for all by an appeal to the Chief Judge.  If my decision is not right, you can have it put right, and then there will be an end to these actions.  If the police are right, there will be no more of these harassing actions brought against them, and they will know their duty clearly.  The present is a case for costs, because the same point has already been decided, but I will gibe you the option of bringing it before the Supreme Court.

   Mr. DRUMMOND asked for costs.

   His HONOUR - I will not make an order for costs, if Mr. Miller will take the case further; but if he does not take the case further, then I shall consider that he acquiesces in my decision, which he must have known beforehand (the facts being the same as in the earlier case) - and that consequently he ought not to have brought the action.  In that event I shall give costs for the defendant.

   Mr. DRUMMOND - Will your Honour mention the amount of costs?  There is, too, a limit of time for bringing an appeal.

   His HONOUR - The time is fourteen days; and if the case does not go any further, I shall fix the costs at $25.  Meanwhile Judgment will be for defendant.


Source: The North China Herald, 1 May 1875



Shanghai, 27th April, 1875

Before Sir EDMUND HORNBY, Chief Judge.

2 p.m.


Alleged detention of Opium

   Mr. MILLER for plaintiff.

   Mer. DRUMMOND for defendant.

   Mr. MILLER explained that this was a re-hearing of the case Walker v. Malcolm, tried before the Magistrate on the 5th April, in which His Lordship was sitting on the bench with Mr. MOWAT.  He took it therefore that His Lordship was familiar with the details.  The summons had in that instance been dismissed, with costs against the plaintiff.

   His LORDSHIP was perfectly familiar with the case, and did not wish to hear any evidence.  All Mr. Miler need to do was argue that the Magistrate was wrong in his decision.

   Mr. MILLER would then take the evidence as reported in the N-C Daily News, and comment upon it.  The case was that, on the 18th March, the Plaintiff and his servants were proceeding along the street, the servants carrying on their persons certain opium valued at Tls. 50.  They were seized by eleven ruffians, nine of whom fled, leaving two on the scene of action.  And the two undertook to tie the coolies' queues together and took them to the Police Station.  And now he came to the question of detention.  The Defendant Malcolm was the sergeant in charge of the station on that night.  He says that when the men came in, finding the Runners' cards bore the Municipal seal, he ordered P.C. Boysen to escort the whole party to the Mixed Court.  Now that, he contended, was detaining the opium in such a way as to lose the plain tiff his opium, and as regarded the coolies it was for his Lordship to judge whether men sent two miles with their queues tied were or were not in custody.  Mr. Miller quoted and commented at some length on the evidence; and asked his Lordship to decide, upon it, that Malcolm had, by his action, caused the opium to be lost.  The time of detention did not signify; whether it was kept in the Police Station two minutes or five.  He was responsible if by his conduct he jeopardised the opium.  If he had cast the whole party out into the street

   HIS LORDSHIP - In that case there would probably have been a further breach of the peace.

   Mr. MILLER - That would have been another case which would have come before the Court in another way.  But the Sergeant did not do so.  He dealt with the case; he sent a Policeman up with the men to the Mixed Court, and that was detention.

   HIS LORDSHIP - Let me put a case.  Suppose I am sitting in my dining room, and hear a row.  I see four men pitching into two.  I go down and drive them all into my yard and say: "What is all this about? I don't like a breach of the peace, and shall not allow it."   Two of the men produce opium, as a cause of quarrel.  I say I have nothing to do with that, and send my servant with them to the nearest Police Court.  Would you say I had detained the opium?

   MILLER - I certainly should.

   HIS LORDSHIP - I thought you would be driven to do so.  And the case is exactly on all fours with the present one.

   Mr. MILLER said - If people choose to kick up a row they must take the consequences, but you have no right to interfere.  You cannot take a man's goods and make them deviate.  They are going one way, and you make them go another.  Defendant all along says he had nothing to do with the matter.  But as a matter of fact he dealt with it.  He ordered Boysen to take the party to the Mixed court.  There had been an unjust attempt to slur this case because it involved opium.  But he hoped His Lordship would not allow that to weigh.

   HIS LORDSHIP said he would like to hear Mr. Drummond on the question of costs.  In order to get costs, he must justify the conduct of the Police.

   Mer. DRUMMOND contended that they had acted according to national comity.  He thought the Court would find nothing in the case to show that they had been doing otherwise.  Suppose the officers of any Consulate wished to execute an order of that Consular Court, - the police were deputed by the Council to be guardians of order, and the officers would fall back on them to carry out the order.

   HIS LORDSHIP - Then you liken Lekin runners to the constables of a Consular Court.  They are supposed to be the agents of a guild to protect it against smuggled opium. But how if the people carrying the opium were not smugglers?

   Mr. DRUMMOND submitted that the Treaty gives the Chinese power to take any steps they see fit, to prevent smuggling.  Art. XLVI says "The Chinese Authorities at each port shall adopt the means they judge most proper to prevent the revenue suffering from fraud or smuggling."

   HIS LORDSHIP agreed, and said the Police ought to go even further and detain the opium.  But about the smuggling?

   Mr. DRUMMOND said the question what was smuggling was, by the same clause, to be decided by the Chinese.

   HIS LORDSHIP - They may say a man was smuggling; but they must give primal facie evidence of it.

   Mr. DRUMMOND - The Municipal Police are under the orders of the council, and the Council are responsible for their conduct.  In order to enable them to have a guide whether men calling themselves Lekin runners are authorized servants of the Guild, they have take steps from time to time to enable the Police to identify them.  The latest method had been by issuing to the Runners, cards bearing the Municipal seal.  The question whether the opium was smuggled or not, had to be decided by the Court to which it was given up.  The men were brought to the Station charged with smuggling, and the Police passed them on to the Court.

   HIS LORDSHIP - Were they so charged?

   [It was shown that there was no entry made on the charge-sheet.  But Sergeant Malcolm had entered the incident in an "occurrence" book.]

   Mr. DRUMMOND - They were brought in in charge of Lekin runners and sent on in charge of the Police to the Mixed Court, to prevent a breach of the peace.  They say we do not know whether the opium is smuggled or not.  We have nothing to do with that.  We merely send the whole case to the Mixed Court.  Large sums are often involved in these cases, and if the Police were not to go, it would be width the while of smugglers to employ a large force to carry off the opium.  To prevent this, to prevent the party being attacked in the street, the Police lend assistance.

   It appeared to him that this was the only course they could pursue, and they had done so for a long time.  If a case were brought to the Station without evidence that the men were Lekin runners, it would be another thing.  The Police would have to take stronger action.  They might then, as had been remarked, be simple thieves.  But in the present case, the Police simply said we will protect you from the station to the Mixed Court, and see that you are not attacked in the streets where we are bound to preserve order.  A similar case, Loureiro v. Stripling, had been decided by the Magistrate from that point of view; and the principle had been adhered to in the present case.  Whether or not it was proper that a case of the kind should be brought once at least to the Court for His Lordship's decision, he would not argue; and would not press for the costs of this Court, either one way or the other.

   HIS LORDSHIP then delivered judgment as follows:

   Besides reading the evidence adduced before the Magistrate, I had also the great advantage of hearing the case in his Court, and I am clearly of opinion that there has been no detention by the Police of the opium, the property of the claimant, which will support the claim made.

   I think it will be well, however, for me to explain why I do not think the course pursued was a right one.  The Police of this Settlement base their right of interference between persons employed in carrying opium within the port, and the Lekin runners - who appear to be persons in the employment of certain farmers of the taxes - simply on the ground to prevent breaches of the public peace, and to maintain order in the streets of the settlement.  Now, how do they do this?  They see ten men set upon two in the public highway, they permit the ten to tie the tails of the two, and they escort the two as criminals, leaving it in the option of any of the ten to accompany the latter to the Police Station.  This is a species of non-interference, which I do not understand.  The ten commit the assault, for it is an assault in the eyes of the police, and yet the two upon whom the assault is committed, are the only persons who are treated as wrong-doers.  Then, when the parties arrive at the police Station, no charge is made.  They are not charged with smuggling opium, but they are shown to have opium on their persons, upon which the persons who assaulted them are allowed to take possession of the opium, and again the two victims are taken as criminals through the streets, under the charge of a Police Officer, to the office of the native Magistrate; and what becomes of them or the opium, I do not know.

   [It] certainly has never been in  the possession of the Police; and they are not, therefore, liable for its detention; but I think if they knew there was any dispute about the opium, and of course they did know this, they ought to detain it, so that, at any rate in those cases where it turns out, as it  mostly will do, that it is the property of the Foreigner, it may be returned to that Foreigner, and not be confiscated for the benefit of those who have no right to it.

   As the facts are in this particular case - they look very much like this: a man is walking in the streets with a watch in his pocket, or a servant is taking his master's watch to a watch-maker - half-a-dozen men set upon him and endeavour to take the watch from him - the Police seeing this, interfere, handcuff the possessor of the watch - walk him off to the station, allowing, if they feel so inclined, those who have attempted to deprive him of his property, to accompany them, but in no way compelling them.  Arrived there, the watch is produced, upon which it is coolly appropriated by the persons who attempted to take it by force.  Why or wherefore is not stated, and the pick-pocketing, robbery, or whatever it may be called, is, as it were, conducted respectably, under quasi-official sanction.

   I must now consumer what offence, if any, the men having possession of the opium are supposed to, or have in fact, committed, because, if they have committed an offence, the Police are right in facilitating their removal to the proper tribunal for trial.  And in doing so, I must necessarily enquire if their master has been guilty of any offence, because if he has, they cannot screen themselves by simply saying they acted under his authority.

   I am not going to consider this case from a sentimental point of view.  Of all the nonsense that is talked, there is none greater that that talked here and in England about the immorality and impiety of the opium trade.  It is simply sickening.  I have no sympathy with it, neither have I any sympathy with the owner of a gin palace; but as long as China permits the growth of opium throughout the length and breadth of the land, taxes it, and pockets a large Revenue from it - sympathy with her on the subject is simply ludicrous and misplaced.

   Now, it is not pretended that the opium which is seized by these Lekin runners is smuggled.  It has in fact paid the Import duty - at least it is not pretended it has not; but it is seized because it is alleged it is liable for other duties.  Is it?  I have only the Treaty before me, and to it I refer, and by it I can alone judge of the asserted liability.  By the 5th Rule, made in pursuance of the Treaty, it is stated:-

"Opium will henceforth pay 30 Taels per picul import Duty.  The importer will sell it only at the port.  It will be carried into the interior by Chinese only, and only as Chinese property; the Foreigner will not be allowed to accompany it."

   Now it is clear from this that opium, which has paid the impart duty, is free from any other duty whatever within the port, and as if to make this more clear, it is expressly stated that it can only leave this Port to go into the Interior as Chinese property and unaccompanied by Foreigners - the object being to make it subject in the interior to all the duties, squeezes, &c., &c., which in the interior are levied legally and illegally on produce in transit or in course of consumption.  In the part it is free, but the moment it leaves the port, it is taxable to any extent, and the Foreigner has no right to interfere; but to say that it is taxable within the port under the Treaty, is to strike a fatal blow at the root of all commercial treaties, because it is to gibe another meaning to the infliction of "import duties." If immediately goods are imported, they are open to taxation, then the consideration for the payment of the duty vanishes and is lost, for it is quite possible to impose such taxes as will render the article unsalable, and this destroy the very object with which the import duty is imposed.  In this Port, then, no duty can be charged or tax levied beyond the import duty of 30 Taels per picul. And the opium can be sold and delivered in the Port on these terms, and can be carried about in the Port from seller to purchaser so far free - there is nothing that I can see in the Treaty which renders it liable to further taxation within the Port, whether it be the property of a Chinaman or a Foreigner.  The Import duty has freed the drug within the Port.  This is my interpretation of the Treaty.  If I am right it is difficult to see what offence the servants of the plaintiff have committed.  Nay, it is clear that they have not committed any offence, and if they have committed no offence, they certainly ought not to be treated as if they had.

   So far on the Law of this case, as far as I understand it.  But if the conduct of the lekin runners is an infraction of the Treaty, it does not follow that British subjects are to take the enforcement of what they consider the particular meaning of the Treaty into their own hands.  That is for the government to do.  It is for the subject to complain, for the government to rectify, and, under ordinary circumstances, to indemnify or obtain indemnification; but I cannot and will not approve of, or permit, any attempt to enforce by violence or force any interpretation which an individual may attach to a Treaty right.

   I think the Police should continue to interfere to prevent any breath of the public peace, and to prevent the lekin runners from openly attacking persons carrying opium; and when they do take any such steps, they should take all persons engaged in such breach of the peace to the Station, and retain the opium until the true owner presents himself.  I conceive they do not lay themselves open to action by doing so.  But persons engaged in this trade will do well to remember that, if it is found that they are mere nominees - men of straw - neither they nor the real owners of the drug will have any cause to complain of it, if in the false pretences they make - they fail to satisfy the Pollute, and fail to get back the opium.  They have no business to complain of unfairness if they are themselves unfair: This Court will not assist them.  A trade carried on in disguise - clandestinely and in secret, by men who are notoriously not in a position to carry it on, is open to grave suspicion and is sure to come to grief.

   Disapproving, therefore, of the course pursued, I shall confirm that part of the judgment of the magistrate in which he dismissed the case, and simply order the cased to stand dismissed without costs.


Source: The North China Herald, 1 May 1875. 

'LEEKIN SQUEEZES IN THE SETTLEMENT', "The decision of the Chief Judge in the case of "Walker v. Malcolm" will, we believe, give general satisfaction. "  [Long editorial.]

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