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Colonial Cases

R. v. Singh, 1893


R. v. Singh

Supreme Court for China and Japan
Hannen CJ, 12 July 1893
Source: North China Herald, 14 July, 1893

Shanghai, 12th July.
Before N. J. Hannen, Esq., Chief Justice.
Bhaywan Singh surrendered to answer an indictment charging him with having on 13th June last stolen two pieces of silk belonging to Zee Kwong-loh, and with having received the same knowing it to have been stolen.
  Mr. H. P. Wilkinson prosecuted on behalf of the Crown, and Mr. Brutton defended.
  Mr. Wilkinson, in opening the case for the prosecution, said it was the duty of the Jury to try whether the Sikh constable, Bhaywan Singh, No, 101, was or was not guilty of stealing two rolls of silk the property of a Chinaman, and again whether he was or was not guilty of receiving the silk knowing it to have been stolen.  It was unnecessary for him (the learned Counsel) to point out at any length what stealing meant.  It meant feloniously taking away the goods of another with intent to deprive that other of the ownership of them.
  The evidence that would be called for the Crown would be that this Sikh constable, in company with another, who was also indicted for stealing and receiving the silk, went into the store of Zee Kwong-loh in Hongkew. It appeared that they had been in the habit of going there to get refreshments. On the night in question they went to the store and had a drink of some sort. Whilst they were there the two pieces of silk were lying on a teapoy, and a witness would be called who would say that as the constables were leaving, he saw the prisoner take away the rolls of silk.  It would also be proved that when one of the witnesses accosted the prisoner, he asked the value of it and offered to pay for it. After referring to other evidence to be called, the learned counsel said that necessarily it was to a great extent Chinese and would have to be interpreted. But that fact should not influence the jury in believing or disbelieving it more than they would foreign evidence.
  Zee Kwong-loh, proprietor of the Yuen Tah store in the Broadway, was then called. He said that on the night of 12th June the prisoner came into his shop accompanied by another Sikh constable. They went into the inner room and had a drink of lemonade. Two pieces of silk belonging to an apprentice in the store were in the room. He identified the silk produced. The Sikhs remained in the house not quite half an hour, and after they left, witness's apprentice pointed out that the silk was gone.
  Cross-examined by Mr. Bruttion -
  Did you state in the Lower Court that the silk belonged to you? - I did not say anything about it.
  Mr. Brutton - According to the depositions you said - "I recognise the two pieces of silk produced. They are my property. They are worth about $8. The silk was bought by me. It was not for sale. I only sell provisions."
  Cross-examination, resumed - The accused when they came in bought a bottle of whisky from the apprentice for 30 cents. They came in about half past nine. As they were leaving his attention was called to them by his apprentice. He did not see them carrying anything out.
  Zie Leh-sung, shroff in the employ of the last witness, deposed to the accused and the other constable coming into the shop on the night in question and purchasing a bottle of whisky. They remained some time and as they were leaving witness who was checking the accounts looked up and saw the prisoner No. 101 carrying the silk.
  Mr. Brutton, at this stage, objected to the indictment as bad. It alleged the silk was the property of the proprietor of the store, whereas the proprietor had stated it belonged to an apprentice.
  Mr. Wilkinson said statements had been made by other witnesses as to the ownership of the silk, and Mr. Brutton could not now object to the indictment.
  His Lordship - I think, Mr. Brutton, the better plan would be to go on with the case and you can raise the point afterwards.
  Witness resuming repeated his evidence given at the Police Court as to following the Sikhs, and meeting No. 66 carrying the silk. The latter threw the silk into the Hongkew Creek from whence it was eventually retrieved.  Witness could not say whether in the accounts of the store there was any entry of the accused having purchased whisky.
  Cross-examined - Prisoner wrote down in his pass book 30 cents for a bottle of whisky. At first the apprentice wanted 40 cents for the whisky.  When he met No. 66, the latter was trying to hide the silk in his trousers. The bottle of whisky was taken away by No. 66.
  Mr. Brutton - Are you allowed to sell whisky in this store?
  Witness - We are allowed to sell it by the bottle.
  Mr. Brutton - Not for it to be consumed on the premises.
  Witness - No.
  Witness resuming said there were five other people in the shop when the accused was there. As the Sikhs left they went out at an ordinary pace. No. 66 carried the bottle of whisky and No. 101 had the silk. When the prisoner was leaving with the silk witness asked to whom it belonged. A man named Wang said it was his.
  Mr. Brutton - Who is Wang?
  Witness - He is one of the men stopping in the store; he is learning English.
  Mr. Wilkinson - Is he a member of the hong?
  Witness - No. He does not get any wages but he gets his "chow" free.
  Mr. Wilkinson - What does he do?
  Witness - Sometimes he helps in the shop and at the end of the month in making out bills.
  Mr. Wilkinson at this stage called attention to Mr. Brutton's objection, and quoted authorities to show that the Court had the power of amending  the indictment in various particulars at any time.  In order to simplify matters he applied that the name of the man Wang be substituted as the owner of the silk.
  His Lordship allowed the amendment, and subsequently intimated that Mr. Brutton, if he wished to have the point argued could move the Court.
  Liu Li-tseng, assistant in the store, said that after the Sikh constables came in he went next door. He returned at about a quarter to ten, and they had gone. Being informed that the silk had been taken he went in search of the constables.  He met the prisoner who asked him where he was going. Witness then repeated the pidgin English conversation he had with the accused, in which he alleged that the latter offered him a watch as security for the payment of $10, the value of the silk, on condition that witness did not go to the station. Witness refused to settle in this way and went to the police station.
     Cross-examined - The silk had been purchased from Ningpo in the first moon of the Chinese year. Since then, until the day it was stolen, the silk had been in a box. It was taken out of the box on that day for the purpose of being sent to the dyer's. There had been some dispute when the accused was in the store about the price of the whisky.
  Inspector Reed, in charge of Hongkew Station, said that in the morning of the 13th June the prisoner was brought in and charged with stealing the silk. Prisoner said "I never steal silk. I went to the store last night to buy a bottle of whisky." He added "What for the Chinaman won't take my watch? "Subsequently the silk, the subject of the charge, was produced. It was wet.
  Cross -examined by Mr. Brutton - Accused has been in the police force five years. There had been no serious complaints against him., beyond drunkenness, and if he were not convicted of this charge he would get his deferred pay, as his time of service had expired.
  This closed the evidence.
  Mr. Brutton proceeded to address the Jury on behalf of the accused. He pointed out that the prisoner when he was charged with the offence, was within a few days of  completing his term of service as a policeman, which would entitle him to about $300 in deferred pay, and his passage back to India.
  It was the duty of the prosecution to prove conclusively he charge made, and on the evidence could the Jury say that had been done? The proprietor of the store, who was doing nothing at the time and therefore in a good position to see everything, declared though he saw the constables leaving his shop he did not see them carrying the silk.  If they had taken the silk he surely would have seen them. Although there were some five people in the store at the time only one came forward to say that he had seen the silk being carried away.
 The prosecution had not suggested a motive for the offence, but it would not be difficult to suggest a motive for the charge. It was probable that the Shroff having sold whisky to the policemen without a license  knew he was liable, in consequence, to punishment. There was not a very good feeling between the Sikhs and the Chinese. As to the evidence the time given by the witnesses varied, and two witnesses who were examined at the Police Court had not been called at the trial.
  In conclusion Mr. Brutton dwelt upon the serious consequences which a conviction would bring to the accused, and he asked the Jury to give the prisoner the benefit of any doubt they might have.
  His Lordship in briefly addressing the Jury directed them to disregard any consideration of the consequences of their verdict. Their duty was to say upon the evidence whether the accused was guilty or not. There was this strong point in the prisoner's favour - How could the prisoner, after four or five years of good conduct, sacrifice all the benefits which were to accrue to him, for the sake of those two wretched pieces of silk.  It was quite fair to take that into consideration, but if the Jury believed the witnesses spoke the truth, it might be difficult to understand how he could be so foolish, but still they must convict him.
  The Jury then retired to consider their verdict, and after an absence of half an hour returned into Court with a verdict of Guilty.
  The verdict having been interpreted to the prisoner, he said he knew nothing about the silk.
  Mr. Brutton on behalf of the prisoner asked his Lordship to take into consideration the length of service of the prisoner, and to bind him over to come up for judgment when called upon, under the First Offenders' Act of 1887.
  His Lordship - I regret I am unable to follow that course. I take into consideration the prisoner having forfeited his gratuity, and the least sentence I can give him under the circumstances, he being a policeman and more especially held to be honest and to take care of other people's property, I cannot pass over such an offence as this without giving a substantial punishment to him; I therefore sentence him to  six months' hard labour.


Source: North China Herald, 14 July, 1893

Shanghai, 11th July.
Before N. J. Hannen, Esq., Chief Justice
  Mahan Singh was next arraigned on similar counts charging him with stealing the silk, and receiving it knowing it to have been stolen.
  The evidence was practically a repetition of that given on the former trial, the chief point being that the accused was alleged to have thrown the silk into the Creek, when confronted by one of the men belonging to  the store.
  The Judge having summed up, -
  The Foreman of the Jury (Mr. Dyer) said - May we ask a question? What we would like to know is why there is no defence. The whole thing is incomprehensible to us. We are bound to find him guilty on the evidence.
  His Lordship - Mr. Brutton says it is for the prosecution to prove that this is the man who took away the silk. Mr. Brutton says it has not been proved. If you think, however, the evidence is sufficient there is no necessity for any questions.
  The Jury then retired.  After an absence of a few minutes they returned into Court with a verdict of "Not Guilty" and the prisoner was discharged.


Source: North China Herald, 28 July, 1893

Shanghai, 20th July
Before N. J. Hannen, Esq., Chief Justice, and George Jamieson, Esq., Assistant Judge.
R. v BHAYWAN SINGH.    [Boghwan.]
  This was a motion on behalf of Bhaywan Singh, who was convicted in this Court on 12th inst., to quash the verdict and sentence, or in the alternative to quash the indictment under which he was tried.
  Mr. G. K. H. Brutton appeared in support of the application on behalf of the prisoner, who was in Court, and Mr. H. S. Wilkinson, the Crown Advocate, appeared on behalf of the Crown.
  Mr. Brutton, in making the application, said that the first grounds of his contention were that in administering the oath to the Jury the prisoner was not given in charge of the said Jury, the words "whom you shall have in charge" having been omitted, and this omission was thereupon pointed out by him (Mr. Brutton) to the representative of the Crown Advocate (Mr. H. P. Wilkinson). He contended that in a case of felony those words must be used, and in that respect the trial was informal.
  His Lordship - With regard to that, the first thing is how are we to determine the words were not used?
  Mr. Brutton - If I have made an affidavit to that effect, and Mr. Wilkinson has not put in any reply.
  His Lordship - Oh, no, the idea is that everything was properly done.
  Mr. Brutton - Well, unless my affidavit is contradicted I maintain [in] stands.
  His Lordship - Not at all; it cannot be now a question as to how the oath was administered, or else the trial of any person might be voided by getting a witness to swear he did not hear the words of the oath. The Court's attention ought to have been called to it, and calling the attention of the Crown Advocate has nothing to do with it. With regard to such an objection as this it is impossible now to have evidence as to those who heard the words and those who did not.
  M. Brutton - Is there the same objection to my next point? It is "that in the said indictment so read to the prisoner and to the Jury the necessary words and sentences 'feloniously stolen, taken and carried away' were omitted, and this omission was thereupon pointed out by me to the representative of the Crown Advocate, who called that attention of the Court to the fact and the indictment was ordered to be read again,  and upon such second reading the said words and sentences were again omitted and the omission  was again pointed out by me to the representative of the Crown Advocate."  Referring to the case of R. v. Aspinall and to Roscoe (page 908) the learned advocate contended these words were necessary.
  The third objection was "that in the said indictment the ownership of the property the subject-matter of the charge was laid in Zee Kung-loh," who denied that the property was his and stated that it was the property of an apprentice. It was essential that the name of the person against whom the offence was alleged to have been committed should be correctly given.
  The case of R. v. Clarke (C. and P. VII, page 298, Russell and Ryland, page 358) supported the contention. It was the case of the murder of an illegitimate child, described in the indictment as George Lakeman Clarke. The mother called the child George Lakeman, and there was no evidence that it was called by the mother's name of Clarke. The judges held that as this child had not obtained the mother's name by reputation, it had been improperly described, and therefore the conviction was quashed.
  The fourth ground of objection was "that the representative of the Crown Advocate applied at the time for leave to amend the indictment by substituting the name of Wang for the name of the said Zee Kung-loh, and that such leave was granted by the Court, but that such amendment was never made as required by law." In accordance with the Act 14 and 15 Vic., chap, 109, sec, 30, he contended that certain formalities which should have been gone through in amending the indictment were not carried out. The amendment should have been endorsed on the indictment or engrossed on parchment and filed among the records of the Court. He referred to the case of R. v. Frost (VI Cox's Criminal cases, p. 526).
  His Lordship - That is the case I was thinking about. You will notice that in that case an amendment was applied for and refused.
  Mr. Brutton said there was also the case of R. v. Larkin.
  His Lordship - In that case an amendment was not applied for until after the verdict. Now I want to know where is the rule which says that the amendment must be made at the time?
  Mr. Brutton said he could not find any cases, but he was simply going on the rules as to how the order should be carried out.
  His Lordship - We all know how things are done at home - at least we all have a vague idea. We know that in this Court it is done in the way in which it is done at home, and I am afraid you are beating the air, as it were, because there are objections against the whole proceedings. You say this indictment was not amended before the verdict and sentence. Now, we know leave was given, we do not know whether the indictment was amended, and we do not know that it is necessary that it should be done at that period.
  Mr. Brutton - Do you hold that the amendment need not be made at the time of the trial?
  His Lordship - I do not hold that because I do not know whether it was made or not. The ones you have quoted do not say that if an amendment is applied for, before the verdict, and granted, that then, before the time at which the verdict is given, the officer of the Court must make the amendment physically. You see it may well be argued that I am the officer of the Court. No one is recognised in this Court except the Judge who sits in it, and I have made the amendment on my notes.
  Mr. Brutton - If my affidavit is not contradicted am I not entitled to succeed?
  His Lordship - Not in a case where the Crown is concerned. With regard to this first point, that the oath was not properly administered, I am quite against you. We cannot try such cases as that after the trial. If anybody had any objection to make it should have been made at the time. The other people in Court may have heard the oath administered in a different way. Have you ever found any case or any suggestion of such a case as this?
  Mr. Brutton - No, I have not.
  His Lordship - I have never heard of such a thing as this, and you might upset every trial that was ever conducted, if you get somebody in the Court to swear an affidavit that he did not hear the oath.
  Mr. Brutton - Not at all; if I had not pointed it out to Mr. Wilkinson I should not have raised it.
  Mr. Wilkinson, in reply, said that even if it were true, as stated by Mr. Brutton, that those words were omitted, then the trial would not be invalidated in the slightest degree. It was stated that the words were omitted when reading the indictment. But it was not stated that those words did not exist in the indictment.  Mr. Brutton's objection could only be attained in one or two ways, either by showing that the Court had no power to make the amendment, or by bringing the record to the knowledge of the Court and pointing out that there was something defective in the record. The record had never been made up, and the authorities all went to show that the record, as a rule, was never made up.
  His Lordship - In this Court?
  Mr. Wilkinson - And in the Courts at home.
  His Lordship - Except where it is called for?
  Mr. Wilkinson - Except where it is called for, and "if it should become necessary at any time for any purposes whatsoever to draw up a formal record in any case, such record shall be drawn up in the form on which such indictment was made, without taking notice of the fact of any amendment having been made." There is nothing before your Lordship which your Lordship can take notice of, to show that those words were omitted. Continuing, the learned Counsel argued, that it was not necessary for the amendment to be physically made, and quoted the case of R. v. Sturge (Law Journal XXIII, Magistrates; Cases, 173).  The next case was that of R. v. Garboyle, in which an indictment charging a man with stealing 19s. 6d. was amended by charging him with stealing a sovereign, and the amendment was upheld.
  Mr. Brutton said Mr. Wilkinson had not replied to his argument about the omission of the words in the indictment.
  His Lordship - If you allege they were not in the indictment then we must look to see if they were or not.
  Mr. Brutton - I think Mr. Wilkinson ought to be asked the question.
  His Lordship - We cannot ask questions.
  Mr. Brutton said he had been speaking on the second count.
  His Lordship - He was not tried on the second count at all. I thought you had been arguing on the first count.
  Mr. Brutton - No, on the second count.
  His Lordship, in giving his decision said - With regard to this case, if these words had been omitted from the indictment on the count upon which the man was convicted, then, although I do not think you are right in your form, by and by you might apply in the proper form, but it is upon the count on which he was not tried, and in fact he was given in charge of the Jury on that count, because Mr. Wilkinson said he did not go upon that count, and what we have to see is that the conviction and sentence are correct.
  That conviction and sentence appear to me to have been perfectly correct. With regard to the first point, I say that such a point as that never has been raised, and never ought to be raised. The whole business of a Court of Justice would be impossible, if every time an oath was administered it was possible to swear an affidavit that the oath was not properly administered.
  Now with regard to the second count, my judgment upon that is that the prisoner not having been convicted and sentenced upon that count it does not matter whether the words were in or not.
  With regard to the third point, I have no doubt that the Court has power to make the amendment. The ownership of the property was improperly laid in the indictment, that may be true, but the amendment was applied for and leave to amend was granted, therefore the indictment upon which the prisoner was sentenced and tried was laid in the person who proved that he was the possessor of the goods.
  With regard to the fourth objection, I can find in no case that the amendment had actually then and there, at the very minute, been made upon the paper which is called the indictment.  If the postea in this case, or record, were made up then it would consist of the original indictment, of my note upon the trial, and of my notes of what the Jury found and the sentence that I passed. In those notes the amendment will be found.  If therefore the record is properly made up that amendment will appear. It is not necessary that the record should be made up except when it is called for by somebody.
  This Court has now been in existence for more than twenty-five years, and during the whole of that time the record has never been made up, except upon the demand of some person interested, and it is evident from the term that the postea and the record need not be made up except when the occasion arises for it.  When the occasion arises for this, whether that amendment will appear upon the indictment or not will have to be determined, still I think it will appear, because as I say the record will consist not only of the papers which were in existence before the trial, but also any notes in which the amendment will appear, because it was made. I must therefore refuse this motion.
  The prisoner was then removed in custody.

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