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Colonial Cases

Opium seizure, 1885

[opium seizure]


Opium seizure


Mixed Court, Shanghai
21 August 1885
Source: North China Herald, 28 August 1885


LAW REPORTS.
MIXED COURT.
Shanghai, 21st August 1885.
Before His Worship K'o, Acting Magistrate, and G. M. H. Playfair, Esq., British Assessor.
SEIZING OPIUM FOR LEKIN IN THE SETTLEMENTS.
  The Chinaman charged with having in his possession two balls of opium on which the lekin duty had not been paid, and which were claimed by Mr. G. Lindsay as his property, was brought before the Court on remand.  Mr. Drummond and Mr. Wainewright appeared to prosecute on behalf of the Likin Office, Mr. Tong Mow-chee, Head of the Likin Office, being also present; while Mr. Lindsay appeared in person to support his claim to the opium.
  Mr. Lindsay produced a letter from Messrs. Myburgh and Dowdall, his employers, in which they stated that he was not precluded by them from carrying on business on his own account.
  The Prisoner was then examined by His Worship K'o.  He stated that Mr. Lindsay was the proprietor of the opium-shop in which he (the proprietor) was employed, and was in the habit of going to the hop daily at four o'clock.  The books were kept in Chinese, but he knew it was a foreign hong because his master was a foreigner.
  The Runner who had seized this opium was then examined, and he stated that the prisoner was not employed at the opium-shop at all, but at a pawnbroker's shop in Fohkien Road.
  Mr. Drummond said this pawnbroker was the real owner of the opium-shop, of which Mr. Lindsay claimed to be the proprietor.
  The books of the opium shop, which had been handed to the Assessor by Mr. Lindsay, were then produced, and Mt. Tung Mow-chee examined then.  Each of them bore the name "G. Lindsay" in English on the cover; but their contents were entirely in Chinse.  Mr. Tong Mow-chee said they contained nothing to show who were the proprietors of the shop; but two of the principal books, which would no doubt contain the names of the partners in the business, were missing.
  Mr. Lindsay said he had handed over eleven books, whereas only ten were produced; but the Assessor said no one had touched the books since they were handed over to him.
  Mr. Drummond then requested that warrants might be issued to search the opium shop for the two missing books, and also to bring the pawnbroker and his books to the Court.
  The Assessor said the name of Mr. Lindsay appeared on the opium shop, and this was prima facie evidence that it was a foreign hong. Therefore unless Mr. Drummond could prove that it was a Chinese shop, he would have to apply to the British Court for a warrant to search it. With regard to the pawnbroker's shop, however, there was no objection to granting Mr. Drummond's request. Some Court runners, accompanied by a municipal police constable, were then sent to fetch the pawnbroker and his books, and it was arranged that on their return the case should be remanded till the following Monday, the prisoner being admitted to bail.
  Mr. Drummond then referred to the question of the right of the lekin runners to perform their duties in the Settlement.
  The Assessor said he knew unofficially that action had been taken at the instance of the Tao-tai with regard to the establishment of a lekin station in the Settlement; but he had seen no official notification that the establishment of such a station had been sanctioned.
  Mr. Drummond produced a copy of a letter addressed by the Senior Consul to the Chairman of the Municipal Council, as follows:
Shanghai, 14th August, 1885.
  SIR, - In the matter of legitimations in a foreign language to be given to a number of 32 runners, appointed by the opium tax-office, to be employed in and in the neighbourhood of the Foreign Settlement, which has already led to a correspondence between the Council and the Senior Consul in 1883, I have now the honour to inform you that a further dispatch has been received from the Tao-tai under the date of 6th August and requesting me to stamp and sign tickets for the legitimation of the above newly appointed runners, to facilitate their researches after smugglers in the Foreign Settlement.
 My colleagues and myself, after having carefully considered the question, decided to comply with the Tao-tai's request, and to have these tickets signed and stamped by the Senior Consul; but it has been reminded to the Tao-tai that offenders against the opium tax regulations, seized within the settlements, are to be taken to the Mixed Court according to the existing regulations; and that if researches for smugglers are to be made in houses of foreigners, the respective Consuls must be duly informed thereof.
  As I think I convenient that these 32 runners, to whom the legitimations in English language are to be given, should be personally known to the Municipal Police, I herewith allow myself to hand over to you the list of these 32 men (in Chinese) together with the 32 tickets, signed and stamped, which you kindly will deliver to the Municipal Police. The Tao-tai has already been informed by me about this, and requested to order the opium tax-office to send their men to the Municipal Police, where each one could receive his ticket.
I have the honour to be, &c.
  The Assessor pointed out that the copy was not certified in any way, and Mr. Drummond undertook to put into Court a duly certified copy.
  Mr. Drummond asked if Mr. Playfair was satisfied that a lekin station had been established in the Settlement with the consent of the Treaty Consuls and the Municipal Council.
  The Assessor said, yes, to prevent smuggling; but it would be necessary to define what smuggling as it might be broadly defined as being in possession of  dutiable articles, and neglecting p pay the  duty; and it would be for the prosecutor to prove that a duty was payable on this opium.
  Mr. Drummond said he should deal with that point later on.  He then proceeded to contend that the burden would lie on Mr. Lindsay to prove that this opium was his property.
  The Assessor though not.  Mr. Lindsay's name appeared on the paper in which the balls of opium were wrapped, and Mr. Playfair had been advised that the burden of proof that it was the property of Chinese and not Mr. Lindsay would rest on the prosecutors.
  Later on, the runners and constable returned, bringing an employee of the pawnbrokers and some of his books.  On these books being examined, however, it was found that they threw no light on the case; and it was stated that, as in the case of the opium-shop books, the principal ones were missing.  The runners stated that the pawnbroker himself was not to be found.
  The case was then adjourned till Wednesday.


Source: North China Herald, 11 November 185
 

LAW REPORTS.
  Another important case turning on the right of the Chinese to levy lekin duties within the Settlement came before the Mixed Court on Monday last, when Mr. Playfair was sitting as Assessor.  The case was of a similar nature to several which have already been before the Court, a Chinaman being charged with having in his possession opium on which lekin duty had not been paid.  Mr. Drummond appeared to conduct the prosecution on behalf of the Opium syndicate.  We learn that before the case came on, some of the high officials connected with the opium syndicate paid a private visit to the magistrate; and from the appearance of the Court it was pretty evident that there was a determination on the part of his Worship to keep the case in his own hands, and not to allow the prisoner to be taken charge of by the Municipal police; for a large number of extra runners were in attendance, and in addition to these, there was a crowd of lekin officers in the court.  It appears that he accused at the time he was arrested was carrying the opium from a shop where he had bought it - a shop which is nominally owned by a British subject, named Nail - to an opium den kept buy himself in the Canton Road.  These facts were admitted by the prosecution, and there was therefore no question whatever of the opium being taken out of the Settlement.
  On this ground, Mr. Playfair informed the magistrate that in his opinion there was no charge against the prisoner - that he had committed no offence by having in his possession opium on which the lekin duty had not been paid unless he was taking it out of the settlement. He therefore suggested that the case should be remanded, as the matter of the lekin duty within the Settlement was still under consideration by the British Consul-General and the Taotai, and no decision had been arrived at.
  Me. Drummond contended that the fact of the opium not being taken out of the Settlement was immaterial; and at this stage of the case he asked that the opium which had been found on the prisoner might be brought into Court.  He asked Mr. Playfair to request the magistrate to make an order for its production.
  Mr. Playfair said he knew nothing about any opium, beyond the fact that the prisoner was charged with having opium in his possession on which the lekin duty had not been paid.
  Mr. Drummond said he had reason to believe that the opium was in the hands of the police, and he again asked for an order that they should produce it.  Mr. Playfair, however, said he should certainly make no order of the kind; and Mr. Drummond then asked the magistrate to make a formal demand for the production of the opium.
  The magistrate proceeded to write out a formal demand, and Mr. Drummond asked him to hand the order to Mr. Playfair for him to hand to Captain McEuen, who was present.  Mr. Playfair and Capt. McEuen would certainly not act upon such an order unless it were countersigned by the proper authorities, and personally he declined to countersign it; and Mr. Playfair also told Mr. Drummond that if he had any complaint to make about the action of the police, the Municipal Council were the proper persons to apply to.
  At this point the Mixed Court runners seized hold of the prisoner and were dragging him towards the entrance of the Court, when Mr. Playfair asked the police to interfere, and the man was brought back again.
  Mr. Drummond then proceeded to argue that the Chinse had a right to levy the duty they chose on goods brought into the Empire; but Mr. Playfair said he could not concur in this argument, inasmuch as goods in a port were not the same as goods in other parts of China, the fact of their being in a Treaty port considerably modifying their status.  M. Drummond then asked Mr. Playfair whether the law of China did not prevail in the Settlement as well as elsewhere, and whether they were not these laws which regulated the business of the Mixed Court.
  Mr. Playfair replied that he did not consider that they were the laws of China pure and simple which regulated the business of the Mixed Court in cases which affected the status of the Settlement; in such cases he considered that the laws of China were modified by the treaties into which she had entered with foreign powers. In any case, Mr. Playfair was not prepared to admit the right of China to levy lekin within the Settlement, or that the mere fact of a man having in his possession opium on which the lekin duty had not been paid committed a criminal offence.
  Mr. Drummond asked, as that was Mt. Playfair's view, what action he considered he was at liberty to take as assessor; and Mr. Playfair replied that he wished the case simply to remain in abeyance, and neither the prisoner to be punished, not the opium confiscated, until some authoritative decision had been given on the question.
  Mr. Drummond then produced the Chefoo Convention; but Mr. Playfair said the stipulations of that Convention could not be taken as governing this case, since they had not been ratified.  Mr. Drummond replied that he did not intend to appeal to the Chefoo Convention on the question whether opium in the Settlement was liable to lekin or not; but he simply wished to draw attention to one of the clauses in which Sir Thomas Wade defined the power of an assessor, and the meaning of the expression [Chinese characters] "to sit in concert with." Mr. Playfair admitted that any opinion of Sir Thomas Wade as to the exact meaning of the Treaty of Tientsin, which Sir Thomas Wade had himself helped to draw up was entitled to great weight.  Mr. Drummond then said he did not wish to refer any more to the question of whether lekin might or might not be levied in the Settlement, as he supposed Mr. Playfair had already made up his mind on the point; but he merely wished to point out that the Chinese magistrate in the Mixed Court, having received no instructions from the Taotai to allow cases of this nature to remain in abeyance, was bound to deal with them through to the termination, and that the assessor had no power to prevent this, but only the privilege to protest against the magistrate's decision and action.
  Having examined the clause of the Chefoo Convention to which his attention had been directed, Mr. Playfair admitted that the arguments which Mr. Drummond had advanced appeared to be sound; and while reserving to himself perfect freedom of action in future cases of the kind, he said in this instance he should content himself with simply entering on the charge sheet his protest against the conviction of the prisoner, and reporting the matter to the Consul General.
  Mr. Drummond then repeated his application for an order that the opium found on the prisoner should be handed over to the Court.  Mr. Playfair again said he had no official cognizance of the whereabouts of the opium; and Mr. Drummond then asked Captain McEuen if the opium was at the Police Station, to which he replied in the affirmative, expressing his willingness to hand it over if asked to do so.
  Mr. Drummond then requested the magistrate to ask Mr. Playfair to apply to Captain McEuen for the surrender of the opium, upon which Mr. Playfair said that while, as he had said before, he could not male this case a precedent for his action in future cases of the kind, he had no objection, if this were understood, to permit the opium being brought to the court and handed over to the magistrate.
  His Worship, however, was not satisfied with this, and in rather an excited manner asked Mr. Playfair to pledge himself that the action he had taken in this case should be the rule in all similar cases which might arise in the future.  Mr. Playfair refused to give any such pledge; and the magistrate, turning to M. Drummond's clerk, asked him to repeat his request to Mr. Playfair in English.  Mr. Playfair told e magistrate that he was quite competent to understand what was said to him in Chinese and he strongly objected to being addressed by his Worship through Mr. Drummond's interpreter.  His Worship then endeavoured to conciliate Mr. Playfair by assuring him that his only object in asking Mr. Drummond's clerk to put the question in English was in order that Mr. Drummond himself might understand what was being said.  Mr. Playfair accepted the explanation, and the matter ended.
  The prisoner was accordingly left in charge of the Mixed Court authorities, and the opium was subsequently handed over to the Court. [See also 'Lekin Runners in the Settlement,' Editorial, 18 November 185; and 'Mr. Drummond as Magistrate,' same date.]

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