Chan Hing-cheung and Others v. The Queen
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CACC000579/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 579 OF 1973 -----------------
----------------- Coram: Full Court (Huggins, McMullin and Pickering, JJ.) Date of Judgment: 26th April, 1974. ----------------- JUDGMENT ----------------- Pickering, J. : 1. The three appellants were originally jointly charged together with one CHENG Pak in an indictment containing two counts of murder and one of arson. CHENG Pak, the first defendant, was acquitted upon the trial. 2. It was the case for the Crown that these four had combined together and executed a pre-concerted design to set fire to the dwelling house in which the two victims on the murder counts were living, together with a number of other persons, on the night of the 15th of July 1972. It is not in dispute that in the early hours of the morning of the 15th, a fire broke out on the 10th floor of the Sincere Building, at No. 56, Forbes Street, Kennedy Town involving flat No. 56 upon that floor which was owned by the witness CHAN Man-cho, familiarly known as "Tai Ngau". This flat was in normal occupation by Tai Ngau and his family but on the night in question Tai Ngau was absent and the two victims of the fire were his daughter, CHAN Man-fan and his wife's aunt LUK Siu. 3. There was evidence which was not seriously challenged that the fire was caused by the pouring of petrol under the door of the flat and it was the case for the Crown that the four original defendants had conspired to set fire to the premises being aware that it was at the time occupied. 4. On the Crown's showing the background to this affair is one of almost inconceivable triviality. The first defendant was the proprietor of a gymnasium or boxing school at Tak Lee Mansion, Woo Sung Street, Yaumatei. In the year 1966 he became involved in a minor altercation in a tea house in Western District. In the course of it he assaulted a person called HO Mui and was thereafter prevailed upon by some of those present at the table to apologise to HO Mui by offering him tea. Among the persons present at the time were Tai Ngau and a man called TSE Tak-ming also known as "Fei Ming". The first defendant offered tea in a glass to HO Mui. Fei Ming objected to the use of a glass and accused the first defendant of being unfamiliar with the ritual niceties of the occasion alleging that the tea should have been offered in a cup. He also snatched the glass away from the first defendant who felt deeply insulted but did not wish to cause trouble at the time because of the number of people who were present. He committed Fei Ming's face to memory and would appear thereafter to have brooded upon the matter for some five years. Then in 1972 being together by chance with the fourth defendant, who was an occasional visitor to his gymnasium, he encountered Fei Ming in the street near the Oriental Opera House and assaulted him, according to Fei Ming, without provocation but according to the first defendant himself as a result of had language used by Fei Ming when he enquired as to the reason for the unpleasant incident five years earlier. Fei Ming denied having ever been present at the occasion of the tea ceremony and both men appeared to have agreed that they should seek out Fai Ngau to confirm whether or not Fei Ming had indeed been present then or whether the first defendant had in fact gratuitously assaulted a stranger. It was resolved between them that if Tai Ngau confirmed that Fei Ming had been the person involved, Fei Ming would do nothing further about the assault upon him by the first defendant; if on the contrary, Tai Ngau were to support Fei Ming and say that he had not been present the first defendant undertook to offer an apology for the assault. Thereafter both of them appear separately to have sought out Tai Ngau and it was not in dispute that Tai Ngau refused the first defendant's request to be his witness in this matter, although, according to the first defendant, Tai Ngau confirmed to him that Fei Ming had been present on the occasion of the tea ceremony. According to Fei Ming, Tai Ngau was prepared to be his witness to the effect that he had not been present. At all events, thereafter the first defendant formed the opinion that Tai Ngau was hostile to him and both the first defendant and Fei Ming gave evidence to the effect that the first defendant anticipated trouble from Tai Ngau involving the possible use of violence against either his person or his premises. 5. It is against this curious background that the events took place which are the immediate occasion of the charges against the three appellants. No question has been made at the hearing of this appeal as to the causation of death. It maybe taken not to be in dispute that the victims named in the first and second counts of the indictment died as a result of extensive burns sustained by both of them in the course of the fire at the flat on the night of the 15th of July. 6. The principal witness for the Crown was a young woman called WONG Shuk-han and it is in relation to her status that the principal point has been made upon the appeal on behalf of all the appellants. Her evidence was that she had lived for some years with the first defendant (who was aequitted) and from the very outset of the trial the point was made on behalf of the defence that she stood in the relationship of wife to husband as regards the first defendant and was therefore neither a competent nor a compellable witness for the Crown against him or against any of the other defendants. [See R. v. Mount(1).] 7. It was the substance of Madam Wong's evidence that the four defendants, following upon the occurrence of the events which have been briefly detailed above, foregathered in a flat containing the first defendant's gymnasium on the night of the 13th of July and conspired together to take steps to injure Tai Ngau either by beating him up or, if that should fail, by setting fire to his premises. She described in detail how thereafter, the first of these plans having miscarried, the second and the third defendants together with a person called SHUM Chai, at the instigation of the first defendant and the fourth defendant, went in the early hours of the 15th of July to Tai Ngau's flat taking her with them and how the three men went up into the building where the flat was situated carrying a plastic container full of petrol while she waited for them in a car in a street. Originally, the Crown had sought to introduce statements made by the first, second and third defendants after arrest and recorded in police officers' notebooks. These statements were challenged as to their voluntariness and after the usual trial of that issue they were ruled inadmissible. A statement made by the fourth defendant after arrest was admitted as was also his statement in answer to a charge of conspiracy to commit arson. Neither of these statements contained admissions of guilt in relation to any of the charges. There were also admitted in evidence the third defendant's answers to the three charges which, although containing matter which might be regarded as admitting knowledge of the commission of the offences and presence thereat, were, although obliquely confessional, nevertheless of an almost wholly self-exculpatory nature. It was not contested by Mr. Stapp for the Crown that upon the remaining evidence, including these statements, this court could safely sustain the convictions of any of the three appellants in the absence of the evidence of Madam Wong. Her evidence, of course, also fell under the criticism that it was that of an accomplice and this was the second major point presented upon the appeal in relation to all the appellants. There were also other subsidiary points made upon the appeal. 8. The learned judge found - and this has not been in issue before us - that Madam Wong was what has been variously described as a tsip, concubine and secondary wife of the first defendant. She went through some kind of ceremony and there can be no doubt that she regarded herself as being in a subordinate position to at least one, if not to two, other women in the family. 9. As to the status of Madam Wong, Mr Litton, for the appellants, contended that there was prima facie evidence that she was the first wife, or tsai, of the first defendant in the court below, and submitted that the Crown had failed to rebut that evidence. Alternatively, counsel argued, even if Madam Wong only had the status of a concubine, under Hong Kong law she is his secondary wife and as such falls within the provisions of s.54 of the Criminal Procedure Ordinance (Cap. 221) which render the spouse of a person charged with an offence a competent witness for the defence and thereby, by implication, not competent as a witness for the prosecution. In more specific terms s.6 of the Evidence Ordinance (Cap.8) provided that nothing in that Ordinance should render a spouse competent or compellable to give evidence for or against the marital partner in any criminal proceedings. 10. The case of Mount(1), the argument continued, was strong authority for the proposition that a wife could not give evidence even against the co-accused of her husband. Basically counsel's submission turned upon the exact status of Madam Wong vis-a-vis the first defendant; there was, counsel argued, a presumption in law that when a man and a woman live together as man and wife they are doing so lawfully within the context of a marriage, that marriage in the present instance being a customary marriage; the evidential rule had to be applied in the context of law and custom as recognised in the Hong Kong courts and, on that basis, the rule was applicable to a customary marriage. The case of Sastry Velaider Aronegary v. Sembecutty Vaigalie & Others(2) was authority for the proposition that where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. In the present case there was ample evidence that a form of ceremony had taken place, that the two had cohabited and that Madam Wong regarded herself as the wife of the first defendant; in those circumstances there was prima facie evidence of a valid customary marriage but what was alleged to have displaced Madam Wong's status as a "wife" was the reference to the existence of a first wife of the first defendant with the result that the court had held that Madam Wong must be a concubine. As to this, counsel argued, there was no evidence beyond what Madam Wong had said and this had not been enough to show a previous marriage of the first defendant, there being no evidence of cohabitation between him and the alleged first wife. We would say at once that we are unable to accept this contention since it was Madam Wong's evidence that the first defendant took her to see his first wife, introducing the two women in the presence of some eight children who were acknowledged by the first defendant and the first wife to be their children. That acknowledgment places the question of cohabitation beyond doubt. Moreover at the inception of the union between Madam Wong and the first defendant Madam Wong attended a ceremony at the home of his parents when his ancestors were worshipped and tea was offered by her to his parents, all in the presence of a lady whom Madam Wong described as the first defendant's first wife. There could be no doubt that Madam Wong's status was not that of a principal wife. 11. Having concluded that Madam Wong was not the monogamous wife of the first defendant it becomes necessary to ascertain her exact status. Counsel cited the case of CHEANG They-phin v. TAN Ah-loy(3) in which it was held that a secondary wife or tsip had the status of a wife and that although some sort of ceremony was usual when a tsip was taken, proof of the performance of the ceremony was not essential to establish the relationship. Moreover, in the case of In the Estate of CHAN Yan(4) it was held that a tsip was entitled on intestacy as a widow and entitled, after the death of first wife and in precedence to a brother of the deceased, to a grant of administration. 12. Those cases, counsel suggested, went a long way towards a construction of s.54 of the Criminal Procedure Ordinance (Cap.221) and s.6 of the Evidence Ordinance (Cap.8) which includes a concubine within the term "wife". Moreover, s.19 of the Affiliation Proceedings Ordinance (28 of 1971) defined a wife as including the union of concubinage although the Marriage Reform Ordinance (Cap.178), in s.2 defines the "parties to a customary marriage" as meaning the husband and the principal wife to the exclusion of a tsip or concubine. The inference which Mr. Litton sought to draw from this latter definition was that before the day appointed for the purposes of the Marriage Reform Ordinance the parties to a customary marriage would include a tsip. The "appointed day" was the 7th of October 1971 and the relationship between Madam Wong and the first defendant had commenced in 1970. The position of Madam Wong, as of any other tsip or concubine, was that she was entitled to maintenance equally with the principal wife, her children were legitimate, she was entitled to administer the estate and was part of the family. It was her position as part of the family which constituted the important test, the reason for the rule as to evidential competence stemming from the court's wish to promote harmony within the family (Stapleton v. Croft(5)). Other factors influencing the courts in regard to the rule were the desirability of confidentiality between husband and wife and the temptation to perjury which would exist on the part of a spouse compelled to give evidence against his or her partner. Those considerations ought as a matter of principle to be applied to concubines having regard to their position within the Chinese family. 13. Counsel drew our attention to the case of Mawji v. Reg.(6) in which the fiction that husband and wife are one had been held to apply to a potential polygamous marriage in Tanganyika. It was true that in the case of Robin v. R.(7) it was held that the rule had never applied to a native polygamous marriage in Kenya, but that authority was wholly out of context in Hong Kong where the authorities establish very clearly that a concubine is accorded a status which the courts do recognize and it would be impossible in Hong Kong to dismiss a concubine as "a native wife". 14. In the Canadian case of R. v. Tom Williams(8) it had been held that a wife under native custom was incompetent as a witness for the prosecution and the case tended to reinforce the suggestion that the reference to a wife in the Hong Kong legislation was not intended to include only a monogamous wife. The term "wife" in the context of the Common Law was a very wide term and there would appear to be nothing to justify the exclusion of tsips or concubines from that term. The point was a very important one for the next generation in Hong Kong since the Marriage Reform Ordinance recognizes the validity of existing unions of concubinage. The case of R. v. Chapman(9) was autherity for the proposition that ambiguity in a criminal statute should be resolved in favour of an accused person. The judge had not done that, although the flexibility of the Common Law had long embraced unions other than those to which the Crown would restrict the rule. 15. A subsidiary ground of appeal was that in any event the issue of coverture was a jury question. Mr. Litton conceded that it would be difficult for him to argue that this was so but he did contend that at any rate the issue should have been decided in the presence of the jury. 16. Mr. Stapp, for the Crown, conceded that Madam Wong had the status of a secondary wife. He would not, he said, argue that a tsai, the principal wife of a customary marriage, was a competent witness for the prosecution against her husband but in the present instance we were dealing not merely with a customary marriage but with a customary second marriage. Having pointed out that the Tom Williams(8) case did in fact involve a monogamous marriage and that the marriage in the Mawji(6)case was in fact monogamous though potentially polygamous, Mr. Stapp rested his main argument upon the interpretation to be accorded to s.54 of the Criminal Procedure Ordinance. The relevant portion of that section, counsel urged, was taken word from s.1 of the Criminal Evidence Act 1898 and came into force in Hong Kong on 18th January 1899. There could be no question that in the English Act the term "wife" referred to the female partner of a monogamous marriage. It was in that sense that it had to be understood in Hong Kong in 1899 when the Criminal Procedure Ordinance reenacted s.(1) of the Criminal Evidence Act of 1898. Concubinage had always been recognised in Chinese law and custom and was so recognised in 1899 in Hong Kong; it was not a system of which the legislature was unaware. It was an everyday fact of life in Hong Kong and had it been the intention of the legislature that the term "wife" in this connection should be understood to include tsips or concubines nothing would have been simpler than to have said so. But neither in 1899 nor at any time since had the legislature chosen so to define the term "wife" for this purpose. We would here mention that in the assertion that it was the Criminal Procedure Ordinance of 1899 which introduced s.1 of the Criminal Evidence Act of 1898 into Hong Kong, counsel was mistaken. The relevant Ordinance was the Criminal Evidence Ordinance of 1906. But the slight error in no way detracts from the point of counsel's argument. 17. It will be convenient to set out both s.54 of the Criminal Procedure Ordinance and s.6 of the Evidence Ordinance. The former section reads in part as follows:-
There follow certain provisos which are not material to the present problem. 18. Section 6 of the Evidence Ordinance reads:
and forms an exception to the provisions of the preceding s.5:-
19. It is apparent that under s.5 husbands and wives were, on the face of that section, rendered competent and compellable to give evidence for or against each other in all proceedings, including criminal proceedings. Section 6 however demolished that construction in regard to criminal proceedings by providing that neither husband nor wife should be either competent or compellable to give evidence for or against the other in such proceedings. These provisions date back to the Evidence Ordinance of 1889. Section 54 of the Criminal Procedure Ordinance however, which first saw the light of day in Hong Kong in s.2 of the Criminal Evidence Ordinance of 1906, restored part of the prima facie construction of what is now s.5 of the Evidence Ordinance, which construction had been demolished by what is now s.6 thereof, by providing that husbands and wives should be competent witnesses for the defence in criminal proceedings against their spouses. The apparent conflict between the total prohibition of evidence by spouses in criminal cases contained in what is now s.6 of the Evidence Ordinance, and the recognition of such evidence when it was for the defence, contained in the present s.54 of the Criminal Procedure Ordinance is resolved by s.58 of that latter Ordinance, which provides that s.54 shall apple to all criminal proceedings, notwithstanding any other provision in force at the time of its enactment. 20. The effective bar, therefore, to the giving of evidence by one spouse against another in criminal proceedings, is contained in s.6 of the Evidence Ordinance. That section cannot however be read in isolation. As we have seen, its effect has been whittled down by s.54 of the Criminal Procedure Ordinance which permits evidence for the defence by a spouse, and s.6 is it self, a statutory exception to s.5 of the Evidence Ordinance. Stripped down, the present effect of s.6 is that a wife may not give evidence against her husband, and vice versa, in criminal proceedings. 21. Our task therefore is to determine what is meant by a wife in s.6. Mr. Stapp argued that the crux of the matter lay in the interpretation to be accorded to the word "wife" in s.54 of the Criminal Procedure Ordinance the relevant portion of which had been taken from the Criminal Evidence Act of 1898. With respect, we think that is not so for it is not s.54 which prohibits a spouse from giving evidence in a criminal case against the (or an) other spouse. That section merely sanctions defence evidence by a spouse. It is s.6 of the Evidence Ordinance which, by its surviving exception to s.5, contains the prohibition. 22. Much turns upon the interprotation of ss.5 and 6 of the Evidence Ordinance. Section 5 amounts to a massive interference with the Common Law position as to evidence by a husband or wife. The section says that from now on, anything goes; a husband may give evidence for or against his wife and a wife for or against her husband, in all types of proceedings. Section 6 however, immediately excludes that rule in regard to criminal proceedings. The drafting is cumbersome. It would have been simpler, instead of creating an overall rule under s.5, which rule was expressed to be "except as hereinafter excepted", and then providing a formidable exception thereto in s.6, had s.5 simply commenced "In all proceedings 'other than criminal proceedings'." But that is not how the legislation was drafted and we must construe it as we find it. 23. The Ordinance must be construed as a whole and these two sections together. Their net effect as we see it is that by virtue of the exception provided for in s.5 and spelt out in s.6, the old Common Law rule in regard to the incompetence of a wife to give evidence for or against her husband in criminal cases, remained undisturbed. Moreover the competence of a wife to give evidence for her husband in criminal proceedings, subsequently conferred by s.54 of the Criminal Procedure Ordinance, did not affect the Common Law rule in regard to her incompetence to give evidence against her husband in such proceedings. In other words, whilst the three provisions which we are considering made enormous inroads upon the old Common Law position, they left undisturbed the prohibition of a wife giving evidence against her husband in criminal proceedings. 24. We have stated our task to be that of ascertaining what is meant by a wife under s.6 of the Evidence Ordinance. Analysis of that section and of s.5 together with s.54 of the Criminal Procedure Ordinance reveals that the meaning of the word in s.6 must necessarily coincide with that of Common Law since the effect of the section is to leave the Common Law unscathed in this regard. 25. There can be no question that at Common Law in England a "wife" meant the female parther of a monogamous marriage. But our problem does not end there; for we are concerned, not with the meaning of a "wife" under English Common Law but with the meaning of that word in the context of Hong Kong - and the application of the English Common Law to Hong Kong was by no means undiluted. From the earliest days of the Colony, the impracticability of importing English Common Law naked and without embellishment was recognized, and continues to be recognised to this day. The present position is governed by the Application of English Law Ordinance (Cap.88) s.3 of which reads, in part:
26. The precursor of that section was s.5 of the old Supreme Court Ordinance which came into force in October 1873 and which read:-
27. Interrupting, and indeed reversing, the backward chronology of this line of legislation which we have so far adopted, the original relevant provision was in Captain Elliot's original "Proclamation" of the 2nd February 1841, upon the cession of Hong Kong to the Crown which included the phrase
28. Ordinance No.15 of 1844, establishing the Supreme Court of Judicature in Hong Kong, provided in its third section:-
29. This enactment was renewed by Ordinance No.6 of 1845 which Ordinance was amended by Ordinance No.2 of 1846 providing that
30. This last enactment related to statutory law leaving it to the local legislature to extend to the Colony only such laws passed by the British Parliament, after 5th April 1843, as it might deem expedient from time to time. 31. Thus when the origins of what are now ss.5 and 6 of the Evidence Ordinance were introduced into the Colony, the law of England was in force except where that law was inapplicable to the local circumstances of the Colony or its inhabitants. Today, by virtue of s.3 of the Application of English Law Ordinance (Cap.88) the Common Law is in force so far as applicable to the circumstances of Hong Kong or its inhabitants and subject to such modifications as those circumstances may require. 32. The overwhelming "circumstance" with which we are faced is that in Chinese law and custom, secondary wives have always been regarded as lawful rather than bigamous. Concubinage continued to be recognised until the 7th October 1971 and the status of existing secondary wives at that date, including Madam Wong, continues to be recognised. 33. What then is the status of such a woman for the purpose of the Evidence Ordinance? Is she a "wife" for that purpose and thus debarred from giving evidence against her husband in criminal proceedings? In attempting to answer that question we think it legitimate to look, as Mr. Litton looked, at the status accorded to her in other directions. We have seen that Madam Wong is entitled to maintenance equally with the principal wife, that her children are legitimate, that she would be entitled to administer the estate of her husband, and that she is part of the family. These considerations are certainly not without importance as pointing, by virtue of local circumstances, to a considerable enhancement of Madam Wong's family status as compared to what that status would have been under the English Common Law. 34. At this stage it will be apparent that we are tending to the view, a view derived from internal Hong Kong sources in the form of its customs and legislation, that Madam Wong was not a competent witness. That preliminary view is however powerfully reinforced by external influences. 35. In our view the decision in Mawji v. Reg.(6) strongly favours the view that Madam Wong was not a competent witness. That case was concerned with the question whether under the law of Tanganyika the spouses of a potentially polygamous marriage could be guilty of conspiracy with each other. The marriage in question was valid by the law of Tanganyika. Section 101 of the Penal Code provided:
Section 4 of the Code was as follows:
It was pointed out that in other statutes the Legislature had expressly distinguished between spouses of monogamous unions and those of polygamous unions and the Board concluded:
We appreciate that the courts in that case were concerned with the interpretation of a statute but it is significant that the Privy Council thought it reasonable to hold that the unity of husband and wife extended to the partners of a potentially polygamous marriage. 36. The question for us is whether the circumstances of Hong Kong or its inhabitants require modification of a rule applicable only to the spouses of monogamous marriages to the spouses of polygamous marriage. In our view they do. We have no doubt that prior to the enactment of the Marriage Reform Ordinance (and, indeed, since) a person in the position of Madam Wong would have been regarded as a "wife" by the Chinese inhabitants. In CHEANG Thye-phin v. TAN Ah-loy(3) it was held that a tsip was entitled to share as a widow in her husband's estate. We see no reason to think that whatever may have been originally the practical reason or reasons for the rule rendering spourses not competent as witnesses against each other (reasons conveniently enshrined in the Christian concept of the marriage union) those reasons which have been suggested are not equally applicable to a Chinese customary marriage. The fact that in some respects a tsip is of lower status than a tsai and, therefore of the wife of a monogamous union does not affect the basic similarity arising from the fact that she is a wife. It is true that in In The Estate of CHAN Yan (Deceased)(4) Sir Henry Gollan, C.J., was unable to agree that a tsip "was his wife if that term is used in its ordinary meaning which limits its application to a kit fat or tin fong" but, with respect, we are unable to accept that the ordinary meaning of the term is so limited and, indeed, the advice of the Privy Council in CHEANG Thye-phin v. TAN Ah-loy(3) is inconsistent with the view that it is. Nor is it relevant that the Legislature in the Marriage Reform Ordinance has defined "parties to a customary marriage" for the purposes of that Ordinance as excluding a tsip. In other jurisdictions legislation has declared that the spouses of customary marriages shall not have the privileges claimed in the present case, but our Legislature has been content not to deal with the matter expressly. If it be thought desirable to limit the rule in Hong Kong we think that must be done by the Legislature and not by the courts. 37. We do not think it assists us to consider in detail the cases decided in other territories to which we have been referred where it has been held that the wives of polygamous unions contracted otherwise than in accordance with Chinese customary rights were competent to give evidence against their husbands. 38. In R. v Mount(1) it was held that where three prisoners were jointly charged the wife of one of them could not be called by the prosecution to testify against the other two. The decision was based upon Reg. v. Thompson(10) where the reason for not allowing the wife to give evidence against her husband's co-accused was stated to be that the wife "stands in the same position with respect to the admissibility of her evidence as her husband". Here we see another application of the fiction that husband and wife are one, an application which is even more open to criticism because the domestic peace of the spouses is not endangered. In the present case Madam Wong did not give evidence against her husband and he was acquitted: her evidence was against the Appellants. Of course the first defendant, as a co-accused, was not a competent witness against the appellants and the ultimate question is whether the relationship between a tsip and her husband is such not only that there are practical reasons for not allowing the one to give evidence against the other but that they should be regarded as having the same unity as exists between the spouses of a monogamous union. In our view the arguments drawn from the customs and legislation of Hong Kong together with the case of Mawji v. Reg.(6) are decisive of the point and, despite the doubts expressed in the article at (1971) 1 H.K.L.J. 80, we are fully satisfied that any relevant decision of the Privy Council is binding upon us. 39. In the circumstances we have no alternative but to allow these appeals and to quash the convictions. It is unnecessary for us to consider the other points which were raised in argument. Representation: H. Lition, Q.C. and Sanguinetti (Hastings & Co.) for appellants. Stapp, C.C., for respondent. (1) (1934) 24 C.A.R. 135 (2) 1880 6 A.C. 364 (3) 1920 A.C. 369 (4) (1925) 20 H.K.L.R. 35 (5) 1852 L.J.Q.B. 367 (6) 1957 1 All E.R. 385 (7) 12 L.R. Kenya 134 (8) 37 Can. Cr. Cas. 126 (9) (1931) 2 K.B. 606 (10) (1872) L.R. 1 C.C.R. 377 |
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