delecti" is not established; the testi-and 8 was heard in conjunction with other charges against other police officer in hearing the fourth charge against Kelly along with the fifth and sixth charges against other police officers has permitted the injection of ex-traneens issues and the admission of incompetent evidence such es could not but influence an ordinary man in his consideration as an' impartial judge of the fourth charge against the petitioner Kelly. Such action was prejudicial to the rights of the peti tioner Kelly and alone t constitute error such as would necessitate sending the case back for a new hearing. But in addition, this Court is far from satisfied with the evidence offered to establish that a pistol was, in fact, found at the house on Taku Road. The only "direct" -evidence, if such it may be called, on this point, is that a Chinese prisoner stated that he "overheard" one Chinese detective tell another Chinese detective that a certain paper bag contained a pistol This' "evidence" however was contradicted by" the wife of the occupant of the house on Taku Road who admitted that a permit for a pistol was in the house, but denied that the pistol itself was there, The original complaint of ex-tertian inaugurating the police disciplinary proceedings against Kelly and certain Chinese police officers was made by the occupant of this house who, however, did not later appear at the hearings.
Severe Penalty The Court is unable, on the basis of the record before it, to accept the Council's contention that petitioner Kelly, on the fourth charge, was tried solely on the issues framed therein; that only competent evidence was considered by the trial officer in arriving at his findings on this charge; that the punishment or penalty as ultimately imposed was not affected or influenced by other evidence and issues; and that peti-tierer Kelly suffered no prejudice or denial of justice thereby. The Court cannot but feel that in the findings returned by the police trial officer and in the judgment of dismissal as entered by the Commissioner of Police and later sustained by the Council on appeal, the dominating factor and influence affecting the minds of the officers and officials concerned in arriving at their respective decisions was that the case, taken as a whole, convinced them that the petitioner Kelly was implicated in and a party to the extortion with which other police officers were charged and found guilty. The thread of extortion runs unfailingly throughout the whole proceedings; it has been injected into the evidence and the issues; it alone could have resulted in the imposition of such a severe penalty as that visited upon petitioner Kelly. But Kelly was not charged with being implicated in or being a party to the extortion, and it cannot be held now that a suspicion that he may have been so implicated justifies the judgment of dismissal as entered. If the extortion was to have been considered in arriving at the punishment or penalty to be imposed, the petitioner Kelly should have been appropriately charged.
Set Aside However, the Court realizes that as a result of the charges which were preferred against Kelly, and as a result of the suspicion' which may have been aroused in the minds of his superior officers that he wap involved in the extortion (and the Court is not disposed to say that such a suspicion would be entirely unjustified), it is obvious that Kelly's usefulness as a police officer has been greatly impaired and that he no longer enjoys the confidence of his superiors, a confidence that without question is an essential factor in maintaining the morale and discipline of the police force. His contract of with the stigma attaching to him as a result thereof and the loss of the financial benefits to which he is otherwise entitled, It is ordered and adjudged that the findings on the fourth charge against Patrick John Kelly and the judgment of dismissal entered on the basis of the finding of guilty on all four charges be set aside. The cause Joint Branch of Sixteen Leading Companies
Text read from the printed page and cleaned; old type leaves the occasional error.