MAGISTERIAL.

Timaru Herald, Volume LXXXI, Issue 12480, 17 September 1904, Page 4

MAGISTERIAL.

TIMARU—FRIDAY, SEPT. 16th, 1904. (Before Messrs D. Stuart and M. White, J.P.'s.) DRUNKENNESS. Cornelius Collins, an old offender, pleaded guilty to drunkenness, and was fined 10s, in default 48 hours' imprisonment. THE OPIUM CASES. Walter Probar, W. Miller, James Mackenzie, John Doyle, Ah Sing, Ah Say and Ah Lun were charged with offences under the Opium Prohibition Act, 1901, and Amendment Act,: 1902. Mr Raymond and Mr Hay appeared for defendants, and' Mr Nixon, Collector of Customs, prosecuted. Fong Moy, of Christchurch, was present as interpreter. .W. Probar and Ah Sing were charged with having opium in their possession, and pleaded not guilty. Mr Nixon pointed out that the possession of opium was far more serious than merely smoking it, and any person found in the possession of opium was liable to a penalty not exceeding £SO. He called— Sergeant Warring, who said that at 8.30 p.m, on the 7th instant he, Detective Fitzgerald and Constable O'Halloran went to Wilson street and entered the back door of Ah Lun's house. In the kitchen they found Ah Lun and another Chinaman. Paesing through to another room, they found all the other accused. Ah Say had one of the pipes produced, one of the little horn vessels containing opium, and a slush lamp, and had evidently been smoking. Probar and Miller sat together on the floor. All the Europeans in the room said that the Chinese living in the house were not to blame; some of the opium was brought from Dunedin and Christchurch by Ah Say and Probar. •»' To Mr Raymond : Saw no actual smoking. but the whole house smelt of opium. Probar and Ah Say each had a pipe in their hands,, and both pipes were quite warm._

To Mr Hay: Ah Lun had told them he knew the smoking was going on, but as" he was not smoking himself, he thought it was all right. Detective Fitzgerald stated that he went into the room immediately in front of Sergeant Warring. Doyle and Ah Say were lying on a bench; Miller and Probar lay on sacks on the floor, and Mackenzie sat on a seat behind the 1 door. Between Doyle and Ah Say was a slush lamp and a pot of opium; Ah Say had the' pipe to his mouth when witness entered. Probar also had a pipe, a jar of opium, and a tray and lamp ji .both lamps were alight. The apparatus.-jjjroduced made up the orthodox npium-smoiing paraphernalia, and he had no doubt the business was in full swing when ; he-entered. Asked Ah Say if it was his opium,' and he replied that some of it was. Prpbar had his opium between his legs on the floor.

Constable O'Halloran gave corroborative evidence.

Mr Raymond raised a legal question, and drew attention to the legislation upon the; m-itfer. There were two classes of offences,' 'lio.>e connected with the importation and • s- session of opium, and those of smok'"!7 opium. The former were practically 'vcfhes of the Customs regulations. He submitted that accused were not in possession of opium which the statu! e pro- j ' ihi'cri them from having. Section 2 of 'he Act of 1902, which dealt- with the -ni'Mer. said: 'from and after the 31st day of December, 1902, any opium or pre- *«:■!! lion of opium prohibited by the prin"i.i-: 1 t 0 lj e imported, and found in the n-'fisessii.n of any persor, shall' 1? forfeited"; while the.-penalty fixed by the Mime section was limited to £SO. He sub-

mitted thai it would be necessary before a conviction could be recorded,, for the prosecution to prove that the opium had been imported since the date mentioned in the Act; otherwise there would be no breach of the Statute. The simple possession of opium was not an offence; it was only an offence to be in possession of opium imported after December 31, 1902. Mr Hay supported Mr Raymond's contentions.

Mr Nixon gave evidence that the opium produced was smoking opium, and not the opium of commerce at all,. and as such was entirely prohibited from importation. He put in a report of an appeal case on a similar matter, in support of the prosecution. In this case ten tins of opium, imported before the end of 1902, were forfeited at Wellington: Mr Raymond would not accept this as of any weight, as the case was not officially reported. At this stage counsel and Mr Nixon conferred, and it was afterwards announced that this charge would be withdrawn. The accused would, however, plead guilty to smoking opium. - Mr Raymond asked that the fact that Ah Say had no means be taken into consideration, and Mr Hay asked for. lenient treatment for Probar, who had only tried opium smoking two or three times, out of curiosity. A fine of £3, and costs 7s, was imposed against each accused. J. Doyle, W. Miller and J. Mackenzie were charged with abetting the offences of the last accused. Mr Hay for defendants.

Mr Nixon stated that the charge was laid ttnder section 9 of the Act of 1901.

Detective Fitzgerald gave , evidence as in the previous case. Doyle, he understood, was not there for smoking, but was in the-, house. To Mr Hay : There was nothing to show that they were encouraging smoking; but all except! Doyle admitted that they had come for a smoke.

Sergeant Warring repeated his evidence, and added that from the positions of all the men, and from what he knew of opiumsmoking, it was probable that they were taking turns at the pipes. The accused Doyle gave evidence that every time he came from Christchurch he put up with Ah Lun. Had not smoked opium for :18 months, since he was convicted for opium-smuggling. He could not swear that Miller and Mackenzie were smoking opium. They were not encouraging Probar to smoke; old enough to look'out for himself.

The Bench dismissed the charge, against Doyle. As for . the others, it was evident that they were there for the express purpose of smoking opium, or of abetting itThey would be fined 4.0s each. All Lun was charged with permitting the smoking of opium in his house. Mr Raymond defended him, and pleaded not guilty. Sergeant Warring said that accused admitted to Detective Fitzgerald that the other men were in the house for a smoke, but that he was not a smoker himself.

Mr Raymond called the landlord of tlie house to show that accused had only lived in the house four months, and was a quiet, respectable man; and Mr Raymond said there could be no suspicion that accused kept an opium den. _ Ah Lun was called, and gave his evidence through the interpreter. He said lie had beeriionly four months in Timaru, having come from Temuka. He had been to the races on the day of the offence, and same home in the evening. ; 'Put. up his horse, and went in to prepare his tea. Found the • white men and the others already in the house, but- did not see them. It was usual on such occasions for an informal call to be made upon him, and he did not bother about them. Knew they were there, beciiU.se he heard them. Ah Say had. brought the Europeans to the house. Had no opiiim. of his .own, and did not smoke opium. Heard someone say that one pipe belonged to Mackenzie agd the other to Ah Say. Did not know smoking was going on; did not notice the smell.

Tu Sing eaid he went into the house with last witness,and he corroborated most of his statements. Ah Lun did not order the people out of his house, or say anything to them. Witness did not notice any smell of opium, and did not know the others were smoking it. He and Ah Lun sat in the kitchen all the time. Mr Raymond, in closing _ his case, said Ah Lun's case was most serious, the others having come yithout his invitation. Mr Nixon said the Act was framed to protect the Chinese themselves. Opiumsmoking was the curse of towns where it got any hold. The Bench said they had no hesitation in convicting Ah Lun "of this very serious offence. With a view to stopping the matter altogether, they imposed the maximum penalty of £lo.''' • -- All accused were allowed time in which to nay their fines. TTie Court then rose.