‘If that is your defence, Mr Tan,’ said the judge, ‘then we are in for a very short hearing of this matter and I will make arrangements to clear other cases on the days that will not be required.’
That seemed to have everyone sitting down and being quiet, although not for long as Mr Davies, who I could see was amused by what the judge said, slowly stood up and threw his gown back to free his arms like he was getting ready for business. He said that he would be relying on statements of fact to prove that Liew Ek Ching led a group of men whose identities were unknown onto Essex Estate where they jointly and severally committed two acts of murder. He said he would be producing a witness to the actual event and a witness to the background of the event. That is, he said, a witness proving the actus reus of the crime, and a witness proving the mens rea of it, which I could see had people scurrying to their books, so I wasn’t alone in not having a clue what he was talking about.
It was not the last time that happened. Mr Davies enjoyed using words that I hadn’t even heard in my father’s office, although I saw that neither my father nor the judge ever went to the books themselves, so I assumed they either knew what he was talking about or thought it did not matter.
After about an hour, an hour in which I kept quiet and tried to concentrate, Mr Davies finally sat down. The judge made a few notes on one side of his sheet of paper and then said, ‘Mr Tan,’ and it was my father’s turn.
‘I thank my learned friend for the opportunity for us all to revisit our Latin books,’ he said. ‘Such exercises these days are all too rare.’ There was obviously more to this than was apparent to me, because Mr Davies and the judge and Uncle Hung Jeuk, in fact everyone, thought it amusing. ‘With your lordship’s permission and my learned friend’s indulgence, may I add one more to these proceedings – ei incumbit probatio qui dicit non qui negat. Now, I know there is no need to translate for your lordship, or for my learned friends at the Bar; however, for the sake of the record – the burden of proof rests on who asserts, not on who denies.’
Mr Davies stood up with a smile on his face. ‘If your lordship pleases, I am quite sure we are all here conversant with the principle of presumed innocence.’
‘I thank my learned friend for his assurance,’ Pa said. ‘However, le preuve hors de tout doute raisonnable.’
‘Mr Tan,’ the judge said, ‘can I assume that both Latin and French lessons are now concluded for the day and you will proceed in English?’
‘As your lordship pleases,’ Pa said. ‘Of course we should proceed in English as this is indeed Malaya.’ And then he said nothing for a moment, but from the look on the assembled faces, not to mention the raised eyebrows, I didn’t think he needed to. ‘May I draw your lordship’s attention to a particular phrase in English that my learned friend used in his opening remarks? Statements of facts. Are we to gather from this that the statements of the Crown’s witnesses are beyond any doubt? Are we to simply assume they are indeed facts beyond testing in this place? If that is the case, are these proceedings required at all? Is this justice being done or merely justice being seen to be done? Are we witnesses here ourselves to a …’
‘I’m going to stop you there, Mr Tan,’ the judge said, looking over the top of his glasses. ‘I will not have my court impugned, nor will I have its motives questioned. There is one motive here and I do not need to inform learned counsel such as yourself what it is.’
‘I beg your lordship’s pardon,’ Pa said, ‘but might I seek a further indulgence by suggesting that we are all here faced with two charges of duty – the administration of justice and the administration of the law. I intend to demonstrate in this case that they may be separate things.’
‘With respect, Mr Tan, you are rapidly approaching the limits of my patience,’ the judge said. ‘I suggest you adhere to your argument and leave the definition of my job to me and the Secretary of State for the Colonies.’
Pa shuffled through papers on the table in front of him and bent over to discuss one with Uncle Hung Jeuk. Meanwhile, there was some scraping of feet and a loud hoick from the back of the public gallery. Uncle Raja turned around to glower at a small Chinese man who was scribbling furiously into a notepad and obviously forgot where he was for a moment.
‘Casus belli,’ said my father, straightening up.
‘More Latin, Mr Tan?’ the judge said wearily.
‘If your lordship pleases,’ Pa said. ‘Casus belli is the basis of my argument.’
‘From that I have to take it that you intend to persist with your assertion that this crime was an act of war, whereas I was under the impression that I had already given direction on that matter.’
‘My lord, my client cannot be charged with murder as the Emergency is in fact a civil war. I submit that these charges must be dismissed.’
‘Submission denied,’ the judge said. ‘I should put it to you, Mr Tan, that in the current climate in this country, and in the light of events just these past few days, you are being provocative and inflammatory.’
‘As your lordship pleases,’ Pa said, and then he shuffled through more papers and whispered again with Uncle Hung Jeuk. ‘Ultima ratio, my lord. I contend that my client had just cause as a soldier in a genuine struggle for Malayan independence, a struggle for Malayans to throw off the colonial yoke. On the grounds of ultima ratio I submit that these charges must be dismissed.’
‘Submission denied. Please sit down, Mr Tan.’
Judge Pretheroe removed his glasses and cleaned them as he seemed to be considering what to say next. When he finished he spoke slowly and sternly and it reminded me of the time my mother spoke to Mei when she caught her wearing our father’s wig. It was as if the judge was saying that he had been through a lot to earn the right to wear his wig, indeed the most authoritative wig in the room, that he had been through more than anyone else in that court, and he was not about to stand for anyone disrespecting what he had been through. That is what I was certain he wanted to say, although what he actually said was this:
‘We appear to be at an impasse. We are here to determine whether a man in this court is guilty or not of the crime of murder. It is surely a simple enough concept to grasp, not requiring any resort to foreign tongue to expound, and it should be a given by both sides as these are the two charges, and the only two charges. However, Mr Tan, you seem determined to shanghai – and that is a word I use advisedly in this context – to shanghai these proceedings for another end. Well, if that is the case, Mr Tan, I can only put you on notice that arguments pertaining to casus belli, ultima ratio or any other implication that this is anything other than a criminal case will enter neither my ratio decidendi nor even my obiter dicta. To make myself perfectly clear in the King’s English, Mr Tan, and yes, the language of Malaya, I will ignore such arguments in coming to a decision. Have I made myself clear, Mr Tan?’
‘Perfectly clear, my lord,’ Pa said. ‘I will merely rely on la preuve hors de tout doute raisonnable.’ And then he sat down.
The judge sighed, so loudly that it actually echoed around the court. ‘I am glad to hear that,’ he said. He picked up his pen to make a note on the other side of his sheet of paper, and then decided to leave it blank. ‘Now I assume we can proceed. Mr Davies, let’s have your first witness.’
Although I did not know much about how a court operated at this stage of my life, I did know that the whole process relied on people telling the judge what they knew about certain events, and that these people were called witnesses. The first time I heard about them was at school when I was learning the Ten Commandments. There was one about bearing false witness against your neighbour, so I assumed that telling a lie in court would have you in trouble not just with the judge, but with God himself. The next time was when my father was telling my mother about a certain day in court, and he said that one of his witnesses was a taxi driver who used to amuse himself by going around pouring brandy from a bottle he kept in his pocket into the glasses of men in coffee shops, an offering invariably rece
ived with appreciation. He did this for nothing, Pa said, because he was a happy man, and when he did he would say, ‘Why worry?’ He did it so often that people took to calling him Why Worry. So when he had to appear in court and was asked to give his name, he said, ‘Why Worry’, which apparently did not please the judge at all, and even though Pa found the whole thing amusing, he had to tell the full story to the judge to stop him throwing Mr Why Worry into jail for contempt of court. Now I was keen to see who was going to be the first witness this time and if it would be someone as interesting as Mr Why Worry.
‘Thank you, my lord,’ Mr Davies said. ‘I call Commissioner Neil Gregg.’
An Englishman, one whom I was disappointed to see did not look at all like a jolly taxi driver, marched steadfastly up to the front of the court. He was in a starched police uniform and held a braided peaked cap under his arm. He swore the oath on the Bible not to bear false witness against his neighbour and sat down with his back straight and his shoes shiny.
He said his name was Neil Gregg and that he was Commissioner of Police. Mr Davies thanked him for taking the time to appear and said he understood that the events of the week made him a very busy man. He then asked him some questions about who he had been before becoming Commissioner of Police, which is how we all learned that he was once Inspector-General of the Palestine Police Force, and before that Colonel Gregg of the Royal Marines Commando Brigade. Mr Davies then waited while the judge, who was obviously impressed by all this, made a few notes on his paper.
Mr Davies asked Mr Gregg to describe the events on the day in question, starting at eight in the morning. My father jumped to his feet and said that surely Commissioner Gregg was not present at Essex Estate that morning and so therefore his evidence was hearsay, and the judge agreed. So Mr Davies asked Mr Gregg what time he was at the estate, and he said that by the time he got there from Kuala Lumpur it was two in the afternoon. Mr Davies asked how many men were involved in the attack, and again Pa jumped up and said it was hearsay. Mr Davies asked Mr Gregg to describe the wounds, the wounds he saw, to the bodies of the two victims. Mr Gregg said both men had been tied up to chairs and had two gunshot wounds to the chest and one to the head. Was it close range? Extremely close, said Mr Gregg, the powder burns around the wounds testifying to that fact. Mr Davies asked more questions about what Mr Gregg had personally witnessed at the estate that afternoon and my father was now content to sit there listening, making the odd note.
Eventually Mr Davies exhausted the Commissioner’s ability to relate the events of the day at Sungai Siput and moved on to the circumstances of Toh Kei’s capture.
‘He was taken into custody by Inspector Marshall at Batu Gajah police station on the morning of April twelve this year,’ Mr Gregg said.
Mr Davies thanked him again, and sat down. Everyone seemed to sense that my father would not be so civil to this witness as they all moved closer to the edge of their seats. All, that is, except the judge, who made another note on Mr Davies’ side of his paper and then put his pen down with a flourish, as much as to say he did not believe that anything my father could elicit from Mr Gregg would be worth the effort of recording.
‘This Inspector Marshall at Batu Gajah,’ Pa began, ‘would that be the officer popularly known as Two-Gun Rex Marshall?’
‘I have heard that some people call him that,’ Mr Gregg said.
‘The newspapers call him that, don’t they?’
‘I believe so. Some newspapers, that is.’
‘Why do you think they call him that?’
Mr Davies rose up and said, ‘My lord, my learned friend is asking the witness to interpret the thoughts of others.’
‘Quite so,’ the judge said.
Pa nodded with submission. ‘Commissioner, how many notches does Two-Gun Rex have on his two guns?’
Mr Davies jumped up again, but this time the judge was way ahead of him. ‘There are many reasons I will not allow that question either, Mr Tan, the least of them being that it is irrelevant.’
‘Yes, my lord,’ Pa said. ‘Commissioner, isn’t it true that my client surrendered … I’m sorry, I should remember to use the approved official terminology. Isn’t it true that my client self-renewed himself into custody at Batu Gajah?’
‘I don’t believe so, no.’
‘Was he carrying any weapons?’
‘No.’
‘Did he present a safe conduct pass?’
‘No.’
‘What was his state of health?’
‘He had the normal disabilities of the jungle terrorist. He was undernourished and pale and showed symptoms of malaria.’
‘Isn’t it true that he arrived at the police station by car, that he was driven there, and that he required the assistance of the driver of that vehicle to enter the building?’
‘That was not in the report.’
‘The report of Inspector Marshall?’
‘That is correct.’
‘Two-Gun Rex Marshall?’
‘Inspector Rex Marshall, yes.’
‘However, as was the case with the act at Sungai Siput, you were not there at the police station in Batu Gajah on that day to witness these events, were you?’
‘No, that is correct.’
‘So what you are telling us here today is actually merely what you read in a report written by Inspector Marshall.’
‘Yes.’
‘Is Inspector Two-Gun Rex Marshall, in your experience, a reliable officer?’
‘Very reliable. One of our finest, with the record to support it.’
‘Not prone to embellishment on occasion, of dramatisation, if it should suit his purpose?’
‘Not in my experience, no.’
Uncle Hung Jeuk handed a page from a newspaper to my father. ‘Inspector, I have here another report, one published in the Malay Mail earlier this year. It says that Inspector Marshall is renowned for, and I quote here, his grandstanding antics. I take it you would not agree with that opinion, Commissioner.’
‘No, I would not.’
‘No, I thought not.’
‘Then why did you ask, Mr Tan?’ the judge said.
‘My lord, merely to clarify that the Commissioner’s opinion of this officer on whom he relies for his information is different from the opinion of the community at large … if you please.’
‘I do not please,’ said the judge, emphasising each of the four words. ‘That is not the opinion of the community at large you have there in your hand, purely that of some anonymous employee of the newspaper, which I might say is a tabloid newspaper and therefore wholly unreliable.’
‘It is the opinion of the editor, my lord,’ Pa said, studying the page. ‘A Mr Balikian, Arthur Balikian. It appears in an editorial.’
‘Then unless you are prepared to have Mr Balikian attend the court and subject himself to an examination to determine for us all why he should hold such views, I suggest you move on. Are you prepared for such a course, Mr Tan?’
‘It is not necessary, my lord,’ Pa said, handing the newspaper back to Uncle Hung Jeuk.
Judge Pretheroe cleared his throat with a loud harrumph, adjusting his robes while staring stony-faced at my father. For his part, Pa referred to his notes and resumed, apparently undaunted.
‘Commissioner, isn’t it true my client spent two months in hospital recovering from an advanced case of malaria?’
‘I believe that is so.’
‘That was in the report?’
‘That was in subsequent reports. I also visited the prisoner while he was detained in the hospital.’
‘Were those reports also written by the reliable Two-Gun Rex?’
Again the judge cleared his throat. ‘Mr Tan, I will thank you not to do your own editorialising.’
‘I will rephrase, your lordship,’ Pa said courteously. ‘Were the reports written by the same man Marshall, Commissioner?’
‘Inspector Marshall wrote some,’ said Mr Gregg. ‘There have been many reports written on this prisoner
, and by many officers. And others, I might add.’
‘I have no doubt,’ Pa said. He turned to Uncle Hung Jeuk, who shuffled through papers and handed one to Pa. ‘A report such as you mention is called a PD101, is that correct?’
‘Some of them were PD101s. Not all reports I receive are PD101s.’
Pa handed him the paper. ‘This is one of your PD101s, is it not?’
Mr Gregg examined it and nodded. ‘It is.’
‘Can you tell us who is the reporting officer on this PD101?’
Mr Gregg studied it more closely. ‘Inspector Marshall.’
‘Let us make it clear for the court, Commissioner. That is Rex Marshall, the same inspector to whom we have both been referring?’
‘Rex Marshall, yes.’
‘Does this particular PD101 carry any details of Liew Ek Ching’s participation in the events at Essex Estate on the morning of sixteenth of June 1948?’
He looked at the paper again, scanning one side and then the other while we all waited to hear. ‘It doesn’t appear to, no.’
‘So, Commissioner, which of the PD101s that you received concerning the arrest of Liew Ek Ching, whether they be from Inspector Two-Gun Rex Marshall or any other officer on whom you rely, did carry details of my client’s participation in the events at Essex Estate on the morning of the sixteenth of June 1948? Or was it some other type of report that conveyed such information to you?’
Mr Gregg appeared to be confused by the question. He looked at Mr Davies and then at my father. ‘Well …’ he said and then paused to think again. ‘I’m not sure that any of those reports carried that information. I understand it came from interviews with the prisoner at a later date.’
‘I see,’ said Pa. ‘So, Commissioner, how in fact did you learn that my client was to be charged with these offences, if it was not in a PD101 or some other police report?’
‘Well … I’m not sure that I recall that.’
‘Try to recall, please, Commissioner. It is important.’
‘I suppose it … I don’t know … it was in the hands of the prosecutor by then. I suppose it was told to me in the normal course of events. I imagine during a daily briefing, or some such.’
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