CHINESE IN TROUBLE.

Taranaki Daily News, Volume LII, Issue 175, 17 August 1909, Page 4

CHINESE IN TROUBLE.

WHAT POLICE FOUND IN A LAUNDRY. A couple of Chinese residents appeared before Mr. 11. 8. Fitzherbcrt, SS.IL, yesterday morning on remand, charged on sundry informations connected with the Chinese habit of consuming opium in its varied forms SMOKING OPIUM. Can Fun, an elderly man, was charged with smoking opium on August sth last iu premises occupied by Chinese ia Devon hired, whereby he had forfeited a sum not exceeding Sill). The ease was brought under the Opium Act. Mr. T. S. Weston, Crown Prosecutor, conducted the case on behalf of Mr. J. 11. Uempton, Collector of Customs, and Mr. D. Ilutchcn represented the accused. Mr. Chew Chong was sworn in as interpreter. Mr. Ilutchcn explained to the Court that the accused's name was not Gai Fun, but Charles Wong Sec, a naturalised British subject, lie was known as Gan Fun because some years ago he purchased a business from Gan Fun, and lie had retained that name for tile business.

The information was amended accordingly. Mr. Weston, in opening for the prosecution, stated that Mr. Uempton had ■been instructed to do his utmost to stop the importation, sale, and smoking of opium, and in pursuance of those instructions, and with the usual care and . ieilance of the police, certain facts were

•; I'nsrlit under his notice, with the resuit uhat these informations were laid. Mr. Hemptoon was not desirous of prosecuting Chinese or any other class of man, but while the ' law prohibited smoking, importing, and dealing in opium, that law had to be respected. The procuring of opium had been going on for a long time, and the Chinese were making it into a form suitable for smoking just as they wanted it. John H. Hcmpton, Collector of Customs, at New Plymouth, stated that part of his appointment was to prevent the importation, selling and smoking of opium. Constable Rowlands stated in evidence that accused was a lauudryman, carrying on business in Devon street. On tile afternoon of the sth August in company with Constable McDvor, he visited the Chinaman's premises. They went through the shop and kitchen to the first floor. As they were passing through the kitchen ft Chinaman there called oiu to someone upstairs. They had just reached the top of the stairs when they saw Joe Wah running along a passage. Constable Mclvor went after him, and witness entered the room Joe Wall had just left. There he saw the accused sitting on a bed. Just as witness jdntcred rtlfc door the Chinaman pulled from his mouth wliat witness took to be an opium pipe (produced). The room was smoky and smelted of opium. The accused and the room were searched, and witness found all' the appliances and materials used in opium smoking. The accused afterwards made a statement to the effect that the stuff had been given to him by a man passing through in the train. Cross-examined by Mr. Hutehen: He saw smoke coming from Gan Fun's mouth when he entered the room.

Constable Mclvor gave corroborative evidence, adding that there was a wnite woman in the kitchen when he went in. To Mr. Hutehen: He did not hear Constable Rowlands asking Joe Wah about the ownership of a small pot of opium witness found in a room where he had followed Joe Wah.

Sergeant Haddrell stated tiiat the articles produced (an opium pipe and the whole paraphernalia of the opiumsmoker) had been in his possession since tlicy were handed to him by the constables. They had been examined by Mr. Sykes, chemist. A. E. Sykes, chemist, gave lengthy evidence to the effect that iu the sinail boxes and tins produced were opium suitable for smoking, and extract of opium.

A suggestion was made that the evidence on this charge might be made to serve for a second charge agauist the same accused of having opium in his possession.

Mr. Hutehen agreed to this course. Addressing the Court on the first charge of opium-smoking, he said that the accused might be guilty, because the law made it an offence to smoke opium. But it was a trivial offence, not nearly

:,< serious as that of a man who be--.me drunk and obtruded himself upon ti.e notice of the public. This man was a nal'.iralised subject, who had resided in "ie .olony for 45 years, and had been i.; iiii-fiiests in New Plymouth .for a great many years. This .. is the first occasion upon which be ' i been charged with any offence, and :,c trusted that his Worship would take this into consideration, especially as the expenses of the defence were somewhat heavy. Mr. Weston said it was necessary for the good of the Chinese race, as'.well as for the safety and protection of our own people, that this opium-smoking should he put down. Of course, in a certain sense, one must sympathise wit'i the Chinese, but there was the moral effect of the prohibition. There was, as they well knew, the danger of females being drawn into the habit and ruined. Then, in order to prevent other Chinamen lulling into the habit it was necessary to punish severely whenever opiumsmokers were found. Mr. Hcmpton had been instructed by his superior officer to press for heavy penalties in these cases. •

Judgment was reserved. OPIUM IN HIS POSSESSION.

Iu reference to the second cuargc, of having in his possession opium sunaolc lor smoking, Gan Fun pleaded "not guilty." -ur. Hutehen said lie hao numerous defences, and one, he thought, was fatal. The information had not disclosed an offence under sub-section "g' of section 236 of the Act, lor there was no evidence that accused had acquired the goods within six mouths prior to laying lh u information. His Worship: But doesn't the onus fall on him'l

Mr. Hutehen: What, of proving that an alleged' offence had been committed in the lime lixed by the statute! No, certainly not. The Magistrate remarked that three years, and not six months, was the time itxcd by the Act.

Air. Jiutchcu said it was juimuturial. There was no evidence that the opium had been acquired within three .years. The Ji.il.: Air. Weston may prove it. Mr. Hutchen said Air. Weston iiud stated that he had 110 lurther evidence to adUuee.

Air. Weston said he wasn't going to attempt to prove anything of the kind, lie took it that " if a man acquired, he lias; if he has, then he 'has acquired. This handkerchief," he said,' and lie nourished a piece of snowy cambric, " 1 have it, so 1 must have acquired H by purchasing it, by stealing, or in some other way, and I must know that I acquired it." Air. Johnstone: Unless someone put it into your pocket. Mr. Weston contended that it lay with the defence to show that the opium had not been acquired during the past three years. His Worship concurred. Air. Weston suggested that the accused ha(d Iplepded guilty. Was his friend going on? Mr. Hutchen: Going on? Of course, I'm going on. I'm oofending the case, and I'm going to defend it. If I don't succeed here,.l'm going to take it t« the Supreme Court. Jfvc no intention of giving in. Air. Weston: Very well, then, let's get on. H'ut there's no occasion to threaten his Worship like ilmt. 1 never saw a man take up such an attitude. His Worship: I don't usually take threats. When a gentleman practising at the, liar savs anything like that dining the hearing of a ease I generally .<_<ivc him the opportunity of going to •be Supreme Court. The whole of the evidence taken on •he first information was then repeated. Mr. Ihitehcn addressed the Court, lie contended that the Crown had to prove that this opium was imported, and that it was in a form suitable for smoking when imported; and that the accused had knowledge of these facts when be acquired it. The frown had not proved that the goods were .imported contrary to statute. Then there was no proof that the goods had been acquired by

the defendant on the sth day of August, 1001), or at any time within three vcars' of that date. The Crown had failed to prove that the offence alleged had been committed.

Mr. Weston said it was not incumbent on the prosecution to prove what Mr. Hutehen had urged he had to prove. They need not show the man knew opium was prohibited as an import, for every resident of a country was supposed to know the laws of the country in which he lived. The prosecution did not know how the Chinaman got this opium, aud they didn't care; but as it was proved that he had it, and was using it, he must be held to have known that he had it. Knowledge must be assumed. He contended that the charge laid had been sheeted right home to accused.

ANOTHER CHINAMAN'S CASE. Joe Wah was then charged with -,uving in his possession on August sth opium suitable for smoking, he pleaded "mot guilty." He was defended by Mr. A. H. Johnstone.

The evidence in the previous cases was repeated. Constable Mclvor added that when he followed Joe Wan down the passage he saw him throw something, and a small jar rebounded from somewhere and rolled to witness' feet. He picked this up and showed it to accused, who denied all knowledge of it and denied throwing anything. Mr. Johnstone examined the polic; constables vigorously as to their sworn statement that the'stuff produced was opium. They replied that tney nad seen opium several times before, and had smelt it, and were able to say, though without expert knowledge, that it was opium.

Mr. "Johnstone protested against witnesses being allowed to give evidence upon matters that they could not possibly know anything about. Whilst Mr. Sykes was in the box, Mr. Johnstone drew from him the statement that to be certain of what the substance was it should have been submilted to analysis. Mr. Weston said he was willing to have the stuff analysed. Mr. Fitzherbert said that without the evidence of an analytical chemist t ..e

contrary Mr. Johnstone could not s,:i:-.e his belief, based on his own knowledge and upon that of Mr. Sykes, that the substance produced was opium. The Court adjourned for lunch. After the adjournment Mr. Sykes was further cross-examined. He did not know that the opium .produced was '•opium suitable for smoking." He did not think that opium suitable for smoking could lie made -from syrup of poppies, because it wouldn't contain sufficient morphine. He was unable to say what percentage of morphine it would contain. The cross-examination lasted over half an hour.

Mr. Johnstone addressed the Court at considerable length. He urged the Magistrate to bear in mind the seriousness of tlie case to the accused, and referred to the accepted law that where the penalties were so heavy the accused should be given the full benefit of even a shadow of doubt, lie quoted section 01 of the Customs Act, and made the point that the prohibition therein contained was the prohibition against the importation int New Zealand of certain goods, aud against importation alone. (Section 236, quoted in this case, was grouped with several other sections under the heading "prevention of smuggling." At the suggestion of His Worship, Mr. Weston said he would ask to have the information amended from a charge ol knowingly having opium in his possession to one of having knowingly acquired possession of the stuff. Mr. Johnstone objected, contending that this was not an amendment at all, but a fresh information. The information as at present laid disclosed no offence.

Mr. Weston said that acquiring aud possession were synonymous; he saw no difference. Mr. Johnstone: Then will my friend allow the information to stand, for I see a very great difference, and I'd be glad for him to leave it. Mr. Weston said he would prefer the amendment.

Mr. Johnstone continued his argument, again emphasising the point that only the importation of opium was prohibited. The Customs Act didn't prohibit manufacture.

His Worship added that the Opium 1 Act made the manufacture illegal. Mr. Johnstone: That is so, but this information is not brought under that Act, and we're not concerned with it at present. But the Crown has not proved that this stuff was imported. Mr. Weston: The onus is on you to prove that it is not. Mr. Johnstone repeated Mr. Hulclien's argument that the word "knowingly" threw the onus of proof upon the prosecution. He argued, word by word, against the expressed opinion of (he Uracil, that it was purely the business of the Crown to show that the accused knew that this opium had been wrongfully imported, and quoted a decision of Mr.' Justice Edwards in support, the case quoted being Johnston v. Fan Tu. (vol. 6 Gazette Law Reports, page 107), in respect of opium. Unless ids co i- ; teiition was correct, it seemed that the Crown could hale before the court on a charge of this kind any man with a piece of tobacco in his possession, for tobacco was included amongst prohibited goods unless imported under specified conditions. Summing up the argument to this point, Mr. Johnstone emphasised the view that the prohibition in the Customs Act was against importation onlv. and that after a certain point was reached knowledge of illegal importation had to be proved before a conviction could ba made. Again, the frown bad not only failed to prove that this slulV was imported illegally, but also that it was suitable for smoking, as staled in the information. In reference to the, amendment of the information, Mr. Johnstone said that if the amendment were not allowed he would ask for the dismissal of the information, because it disclosed no offence; if it were allowed, then it must fail, because it was not proved that the accused acquired possession, or that the opium was| imported, within three years prior to the date of the information. The, form of conviction in these cases might help his Worship. It read: "Be it remembered that is convicted before me for that he within three years now last past did acquire possession of" etc. ■

His Worship intimated that this point needed consideration. Mr! Johnstone concluded by stating thai, the Act had placed the onus on the Crown. It had not been shifted, nor hid it la-en discharged. Mr. Weston: Does your Worship re epiire to hear me? The Magistrate said he would like to hear Mr. Weston on the point in regard to tlift three years limit. "Mr. Weston said he would merely reiterate that the man had the opium on .">tli August, and must be held to have acuuired it (hen. His "Worship: Have you any authority for that? "Mr. Weston had not. It was pointed out by the S.M. that after three years the' accused could claim certain privilege under the Act. Mr. Weston: Then that throws the nuns upon the defence to show that he came within the bounds of the exemption. If we had to do that it would be impossible to carry the law into' eil'cct. ITow could the prosecution say when the stuff was imported'; The Magistrate said that if Mr. Johnstone was correct the section became a dead letter. If the. Crown had to } prove that the accused person knew the dale of the importation of opium found in iiis possession it would he a very dilVicult matter. In fact, it was almost impossible. Mr. Johnstone: If it's a difficult matter for the Crown, it's infinitely more.] dillieult for the accused, even if he were innocently in possession. Mr. Weston said that was not so. It win ipiite possible for the accused to -ay when and where he got the opium, lie conhl hardly conceive that in all the opium cases heard ill New Zealand juf recent years this point raised by Mr. Johnstone had not been raised' and dealt with before. . Mr. Johnstone said there were no repnried cases dealing with fnis point. The S.M. said he hud brought many -a*es himself for the Collector of Cus'oui-. at Wellington, and had succeeded. \o counsel had been 'cute enough to raise the points Mr. Johnstone had raised: or. at all events, no counsel had raised them,

Mr. Weston said he had been much struck with the great research that hisfriend had exercised in the preparation of his defence. His Worship also commented on this, and said there was no doubt that if Mr. Johnstone was right, then many Chinamen in New Zealand had beea wrongly convicted and lined. Mr. Weston applied to have the remaining cases against Joe Wall adjourned sine die, pending his Worship's decision in this ease, if a conviction were entered, he would proceed no further, but if not he would have to consider the matter. Mr. Johnstone objected to the eases standing over indefinitely, and he would strongly protest unless the cases were gone on with almost immediately, in the interest of his client. It was decided to remand the accused till next Morulav, bail being allowed. GAN FUN FINED. His Worship then intimated that Gan Fun (Wong'See) would be lined £5 and costs (.-US 2s 3d) for smoking opium. In the second information against him, and that against Joe Wah (for acquiring possession) judgment would be reserved.