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Colonial Cases

R. v. Burgoyne, 1899

[obtaining by false pretences]

R. v. Burgoyne


Supreme Court for China and Japan
Hannen CJ, 31 January 1899
Source: North China Herald, 6 February, 1899

LAW REPORTS
H.B.M.'S SUPREME COURT.
Shanghai, 31st January.
Before Sir Nicholas J. Hannen, Chief Justice and Messrs. A. P. Wood, A. F. Jones, J. Ferrier, F. L. Bickerton, and J. Smedley, Jury.
R. v. BURGOYNE.
  John William H. Burgoyne appeared to take his trial upon an indictment charging him with falsely representing that he was possessed of 1.650 pieces of lamb-skin clothing and furs then in a godown in Canton Road, by which means he obtained Tls. 20,000 from the Russo-Chinese Bank to be paid to his account, and further that he falsely pretended that a certain godown receipt or delivery note, given by him, was a valuable security, whereas it was not.
  The Crown Advocate (Mr. H. P. Wilkinson) prosecuted, the prisoner being defended by Mr. D. McNeil, (Messrs. Dowdall, Hanson and McNeil).
  Upon the Jury panel being called over, Mr. Marcus Woolff did not answer his name and was fined $50. As they came to the box to be sworn the Crown Advocate challenged Messrs. L. E. Walter, A. L. Robertson and A. Thorburn, and they were ordered to stand aside.
  The indictment having been read over by the Clerk (Mr. Burrows), the prisoner pleaded "not guilty."
  The Crown Advocate, in opening the case for the prosecution, said it was the painful duty of the Jury to say whether the prisoner was guilty or not guilty of the offences charged against him, and that it was his (the learned advocate's) painful and bounden duty to lay before them such facts as would, as he thought, prove to them that the accused was guilty. The accused was charged, in the first count, with obtaining from Mr. Werth, one of the managers of the Russo-Chinese Bank, Tls. 20,000, which was paid to the credit of his bank account in consequence of certain false pretences, and in the second count the allegation was that a certain godown order upon which he obtained the advance was not a good security, as he falsely represented it to be.
[Not transcribed.]

4th February.
  John William Henry Burgoyne, convicted of obtaining money by false pretences earlier in the week, was brought up for sentence.
  Mr. H. P. Wilkinson for the Crown and Mr. D. McNeil for the defence were in attendance.
  Mr. McNeil said - May it please your Lordship. When the case was last before the Court two points were reserved for argument one arising out of each count of the indictment. Had these points been decided in favour of the accused they might possibly have been discussed afterwards and even if I had succeeded in convincing the Court  in regard to them, I dare not say that I could establish his innocence in face of the verdict of the jury. Under these circumstances Mr. Burgoyne himself feels very strongly on the point and has instructed me with your Lordship's permission to abandon the argument, and leaves himself entirely in your Lordship's hands.
  Mr. Wilkinson - May it please your Lordship. I of course was prepared to argue these points but it is now unnecessary. But I may say that there are three other indictments alleging the same offence in a different form; but as regards these further indictments Counsel for the prisoner having withdrawn his argument the Crown will offer no further evidence.
  His Lordship - As the points have been abandoned it is not necessary for me to say more than this; while I think  they were both proper to be reserved by Counsel for the prisoner for argument yet I consider so far as the second point is concerned, that is to say, the question of the validity of the documents which the prisoner gave to the Bank, I cannot myself see even how even if it was found invalid, and I do not say whether it was or not,  it could have any effect upon the question  as to whether he was rightly convicted or not.
  With regard to the first count as to whether it was money that was obtained or credit, without saying whether if he had obtained credit or not, the act would not still have affected him, I may say that I have considered it and without hearing Counsel on either side, have come to the provisional conclusion and I must now call it the absolute conclusion, that it was money and not credit that was obtained. I say this much in order that it may be plain that to my mind the verdict of the jury was correct and the conviction of the prisoner upon the indictment in its present form was legal.
  The prisoner being asked by the Clerk of Arraigns whether he had anything to say why sentence should not be passed upon him according to law, said:
  My Lord, I confess I made a great mistake in handing the document to the bank and feeling that I had made the mistake I confessed the matter before the Magistrate.
  I assure you that when I went to Mr. Werth and asked him for a loan of Tls. 20,000 I had not the faintest inclination or wish to defraud the Bank. I had at that time, owing to me, monies far in excess of the Tls. 20,000 which I believed at that time would have been paid me. If those monies had been paid to me my debt to the Bank would have been paid off long ago and I would not have been here in the unfortunate position I now am. That is the only defence I make, my Lord, and I leave myself in your hands.
  His Lordship in passing sentence said - A case of this sort is most painful to everybody concerned, and I think it will do no good for me to make any remarks upon it. It has been of course a matter of the deepest anxiety to me to arrive at a just conclusion as to what should be your punishment under the circumstances. What all these considerations have been it is impossible for me here to say.
  I have given it the most anxious thought and this is the conclusion I have come to: John William Henry Burgoyne, You have been convicted by the jury  of obtaining money under false pretences. The only sum that was mentioned in the indictment with which we are now dealing was Tls. 20,.000 but at the preliminary hearing you were charged with obtaining Tls. 85,000 and you admitted the charge. Under these circumstances, and in thinking over what then took place, I consider it my duty to impose a sentence upon you of fifteen months' imprisonment.

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