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Colonial Cases

R. v. O’Shea, 1892

[libel]

R. v. O'Shea

Police Court, Shanghai
Jamieson AJ, 12 November 1892
Source: North China Herald, 18 November, 1892

LAW REPORTS.
H.B.M.'S POLICE COURT.
Shanghai, 12th November.
Before G. Jamieson, Esq., Assistant Judge.
R. v. O'SHEA.
  Mr. Henry D. O'Shea, editor of the Shanghai Mercury, appeared to answer a charge of having published false and defamatory libels of and concerning the Club Liberal Portuguese, and the members thereof.
  Mr. W. V. Drummond appeared to prosecute, and the defendant was represented by Mr. A. P. Stokes.
  His Worship at the commencement of the proceedings read the summons, which was as follows:
  To Henry D. O'Shea, Editor of the Shanghai Mercury, -
You have been charged before this Court, for that you contriving and unlawfully, wickedly and maliciously intending to defame, injure, vilify and aggrieve the Club Liberal (Portuguese) and he members thereof, and to bring it and them into contempt and disgrace, on the days hereinafter mentioned, unlawfully, wickedly, and maliciously, did write and publish, and cause and procure to be written and published, false malicious and defamatory libels of and concerning the said Club and the members thereof, containing (amongst others) the false malicious and defamatory words and statements following, that is to say:
  "Gambling houses kept and frequented by certain Portuguese in Hongkew."
  (Meaning thereby that the said Club Liberal is a gambling house kept by Portuguese and frequented by the members of the Club fior the purpose of gambling.)
  "These disgraceful and dangerous dens."
(Meaning thereby that the said Club is an ungodly place for respectable persons to go to, and dangerous on account of the unfair play which is carried on there.)
  "In the evenings, filled with young Portuguese gambling for all they are worth and for a good deal more besides."
  (Meaning thereby that young Portuguese every evening resort to the said Club to gamble recklessly.)
  "He (meaning Mr. Valdez the Portuguese Consul-General) knows where the dens are very well, one is the so-called Liberal Club."
  (Meaning thereby that the name or term, Club Liberal is used as a cloak for the purpose of hiding the real nature of the place which is alleged to be a common gambling house.)
  "A list of the frequenters."
  (Meaning thereby that the place is a common gambling house and is thrown open to every one who wishes to gamble.)
   And on the 15th day of September last.
  "The Portuguese gambling hells."
  (Meaning thereby that the Club Liberal is a gambling hell kept by Portuguese, and frequented by them simply for gambling and not for social purposes.)
  "A list of Lusitanian hidalgos who frequent these gambling dens."
  (Intending thereby to apply to the members of the said Club a very offensive epithet and to charge them with being inveterate gamblers.)
  And on the 16th day of September last.
  "The very constitution of the Club makes it pretty evident where the profits were expected to come from."
  (Meaning thereby that by the way in which the rules of the Club were in the first instance drawn up, it was intended that it should be a Club for the purpose of gambling and should be supported by the profits obtained by permitting and encouraging gambling by the members.)
  "Though the Club is not the only resort in the neighbourhood where gambling is carried on, and where professional gamblers exercise their profitable skill in the intricacies of Kobachoa."
  (Meaning thereby that the Club is used only as a gambling resort and that the members are card sharpers and make a living by cheating in a game called Kobachoa.)
  And on the 17th day of September last.
  "By arming the Police .  .  .  .  to make raids on these dens."
  (Meaning thereby that the said Club is simply a resort for gamblers and therefore liable to be visited by the police, and the members summoned to answer the charge of keeping a house for gambling purposes.)
  "Shameful subject."  "Disgraceful affair,"
  (Meaning thereby that the said Club is not a fit place for respectable persons to visit, and that the habits and practices of the members are subjects about which it is discreditable to speak, and that the said Club is a disgrace to everyone connected with it.)
To the great scandal infamy and disgrace of the said Club and the members thereof and to the evil example of all others in the like case offending, and against the grace of our Lady the Queen, her crown and dignity.
  Therefore you are hereby commanded, in Her Majesty's name to appear before this Court on Saturday the 12th day of November at ten o'clock in the forenoon at Shanghai to answer to the said charge, and to be further dealt with according to law.
  Mr. Stokes raised a preliminary objection.  The title of the summons was Regina (Upon the application of Francisco Maria da Costa) v. Henry D. O'Shea.  Here was a private prosecution in which no prosecutor was disclosed. The words of the summons showed that the defendant was charged with defaming, injuring, and vilifying the Club Liberal Portuguese and the members thereof. There was no information as to what individuals were the prosecutors, and they had no legal status as a Club. As therefore it was a private prosecution, he submitted he was entitled to have the fullest details of all the names forming the prosecution in this complaint, and if it was a prosecution by Mr. da Costa on his own behalf, then the case assumed a different shape. As his Worship had the power of dealing with the question of costs, in the event of the prosecution failing to succeed, it was a matter of importance to know against whom to recover costs in that event.
  Mr. Drummond in reply, contended that the present form of summons was perfectly in order. In accordance with the terms of the Newspaper Libel and Amendment Act of 1881, and as amended in 1888, the Judge in Chambers had granted permission. The present summons was simply, therefore, a subsequent stage in the case. It would be quite impracticable for the whole of the members of the Club to attend and become prosecutors, so they had delegated Mr. da Costa to appear as the Secretary of the Club and undertake the duty of prosecuting.
  His Worship, after some further argument, decided to allow the case to proceed, at the same time taking a note of Mr. Stokes;' objection.
  Mr. Drummond having stated the nature of the alleged libel, said that in the last few days the case had assumed an even more serious aspect. The case was ready to come into Court on Friday, and the witnesses were all ready, when Mr. da Costa was forbidden to attend and give evidence under pain of losing his situation. It therefore became necessary for him to obey the order of his employers or abandon the case. The consequence was that he lost his employment, as he had had to send in his resignation that morning because he had to come and give evidence. That was a very serious matter indeed, and added very greatly to the gravity of the position, which was a very unfortunate one for all parties. It was, however, impossible to avoid it, as it could not be expected that members, many of whom were employed in the mercantile hongs in Shanghai, could rest under the imputations contained in the alleged libels.
  Before evidence was given all witnesses were ordered out of Court.
  Mr. F. M. da Costa was then called and sworn.
  Mr. Stokes objected to the witness being sworn on a Protestant Bible, as he was a Catholic.
  His Worship said the Court had not got a copy of the Douai version; and he was not aware of any legislative enactment making a difference in the administration of the oath to Catholics or Protestants.
  Mr. Stokes assured His Worship that Catholics were sworn on the Douai version.
  Mr. Drummond said he did not know Mr. O'Shea's religion, and he did not know whether he proposed to take the same objection.
  Mr. O'Shea remarked that he should take the same objection if it came to his turn to be sworn.
  Hs Worship (to Witness) - That is the Bible; you understand you have been sworn on it. Do you consider the oath binding on your conscience to speak the truth?
  Witness - Yes.
  His Worship - That is quite sufficient.
[Evidence not transcribed.]
  The Court at this stage adjourned until Thursday morning.

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