Page
February 14, 1895.1
upon it to impose imprisonment. In cases of this sort, in default of payment, it would be bet- ter to seize by distress, and therefore I gave the defendant an opportunity of re-opening the case with a view to reviewing my decision in regard to imprisonment. I am sorry if I hurt anybody's feelings.
Mr. Tooker-Does your Worship intend to re-open the case or to receive fresh evidence?
His Worship (to Mr. Francis)-Do you admit the charges?
Mr. Francis-The notice your Worship gave us was a notice to review your decision. It is not for me nor Mr. Tooker to address yon. It is not the case you are reviewing; you are simply reviewing your own decision with certain lights that have come before you in consequence of your consideration of the Ordinance. I do not think it is competent for you to re-open the case or to go into further evidence. It is only your Worshin's indomant on the fasts you have that is before the Court for re-consideration. I will
CHINA OVERLAND TRADE REPORT.
for an encroachment, and Section 85 is not more applicable to 68 than it is to 60.
His Worship-By Section 77 a larger penalty is provided:
Mr. Francis-Is it possible that sub-section 3 can possibly refer to section 60 P If it does it cannot refer to Section 69, which refers to an act of precisely the same character.
His Worship-I think it is not intended- Mr. Francis-I admit it is ambiguous and perhaps your Worship will be justified in in- ficting a fine. Having taken all the circum- stances of the case into consideration I ask your Worship to reduce the fine to a nominal amount. A reasonable explanation was given, there is no probability of a recurrence of an offence of this character, and attention has been so markedly called to the requirements of the Ordinance. submit that your Worship might usefully and properly reduce the fines to some- thing like a nominal amount.
117
were unaware of the encroachment and the plans were overlooked in the press of other work. (c)-Summons in this case was the only noti
fication of our omission to send plans; it is for three items of work.
Item 1, was for an addition to a chimney. The plan for the original work was deposited with the Department months
ago.
Item 2, was for the construction of a small lean-to shed attached to a building.
Item 3, was for the construction of an underground tunnel. (d)-This summons was for the construction of two godowns, plans of which, for the De- partment, were under consideration some. time back, but pressure of other urgent work caused them to be set aside for a more convenient time.
For these offences we were summoned to ap
His Worship-The iron pier must have been only ask your Worship's further attention to the ordered out from England, and gentlemen in Pear at the Police Court on the 6th inst., when we at once admitted that we had committed the Lact that one portion of your sentence was for a the position of your clients must have known technical offences against the Building Ordin- breach of Section 69. I think there were four that the foreshore was the property of the 'ordance No. 15 of 1889 The Stipendiary Magis- separate charges. I have not the summonses of the manor-in this case the Crown.. his trate thereupon, after commenting upon our before me, and I do not know precisely under was emphasised by notice being served upon presumed knowledge of the law. seeing the large what Section these four charges were made. them and they disregarded it.
building interests we had, inflicted upon us a Some were under Section 69.
fine of $200, or $50 on each summons, and added to the indignity thrust upon us by being com- pelled to appear in a common Police Court, that the alternative of non-payment of the fine was two months' imprisonment with hard labour.
His Worship The sections were 68 and 69
Ordinance 15 of 1889.
Mr. Francis There is no penalty attached to
clause 68.
His Worship-I based my depiction on sub-
section 3 of section 77.-" Every act, failure, neglect or omission or refusal whereby any Beotion of this Ordinance is contravened.”
Mr. Francis-That is so; but there is no power to inflict a penalty.
His Worship-Section 84 states that in case of conviction every person offending against the provisions of sections 54 to 66 both inclusive shall be liable to a fine of $50." And by Section 85 every person committing a nuisance as defined by Section 77 is liable to a fine of $100. Mr. Francis-I point out to your Worship Sections 84 and 85. You will see they are absolutely inconsistent. Section 84 says "every person offending against the provisions of Sec. tions 54 to 56, both inclusive, shall be liable on summary conviction thereof before a Magistrate to a fine not exceeding $50."Pera. 85 refers to a person convicted of a nuisance refined by Section 77, "every act, failure, neglect, omission, refusal whereby any section of this Ordinance is contravened." Put Section 85 and sub-Section 3 of 77 together and your Worship will be entitled to inflict a fine of $100 for every breach, however small or however great, of this Urdi.
nance.
His Worship-It clearly Sbetion 77.
comes
within
Mr. Francis-The section is supremely ridi oalons. It must be limited to something which is in itself a nuisance. The failure to send in a plan or to give notice cannot by any construction be considered a nuisance. It is neither a private nor a public nuisance. Under Section 77 the following are deemed nuisances under the Ordinance," Every verandah over land the property of the Crown and every pier or wharf over a foreshore the property of the Crown, the owner whereof in each case shall have neglected or refused to construct, re-construct, repair. maintain, or occupy the same in accordance with the provisions of this Ordinance or with the rules and regulations, &o." The failure to send in a notice cannot by any possibility be in. tended to be dealt with as a nuisance. The section is inconsistent. Under Section 6" it is not lawful for any person to cut earth or turf the property of the Crown." If a general universal application is to be given to Section 77 your Worship would be perfectly entitled to inflict a penalty of $100 on any pers n who out turf and yet in another section the penalty is distinctly limited to $50. So that some limitation must be pat upon sub-section 3. It cannot by any possibility apply to Section 60. Ican quite see the difficulty your Worship was
His Worship-There are various descriptions
nuisances.
Mr. Francis-They are all that I have men- tioned.
His Worship-Under Section 68 there is a special encroachment clause.
Mr. Francis-There is no penalty provided
Mr. Francis-Permission was actually granted before the summons was issued. Why did the Crown grant permission and then prosecute ? it has authorised all that has been done in the past.
His Worship-I cannot accept that. Mr. Francis-The, summons was dated 1st February.
His Worship-And the permission? Mr. Francis-I was told the 5th February, Then your Worship takes the alternative off?
His Worship-Yes; fined $50 in each case.
OFFICIAL CORRESPONDENCE.
The following corespondence has been handed to us for publication:
Hongkong, Sth February, 1895. the Governor the great dissatisfaction we feel Sir.--We beg to bring to the notice of H.E. with the discretion exercised by the Dior of Public Works in administering als re delegated to him ustaz the Building Ordinance. No. 15 of 1889, Selecti
Under Section 37 of that Ordinance we are permitted to appeal to the Governor in Conncil. extensive building and other works in connection For many years we have been engaged in very with our sugar factory at Quarry Bay.
to the buildings, etc., involving immense detail Recently important additions have been made work, which it has been impossible to compass as quickly and consecutively as we could wish.
Owing to this strain-thongh at the onset the Public Works Department were supplied with all the plans required under the Ordinance-we bave latterly fallen into arrears, and plans have not been submitted to the Department for work that had to be undertaken at once before the works were commenced. To this extent are to blame, but it is purely a technical error, an omission that will occur even in the ordinary business of any undertaking of magnitude.
we
For the omissions mentioned below, for which eventually the Department served upon us four summonses to appear at the Police Court on the 6th inst., for bus only have we received any previous notice from the Works Department.
(a).-This notice, for plans and directing atten- tion to an encroachment, was handed us on the 24th ult. A few minutes afterwards oue plan was in the possession of the D-part- ment, and in our letter of enclosure we admitted the encroachment and asked that permission mi, ht be riven therefor. Per. mission was accorded on he 5th inst., one day prior to the day on which the sumos was returnable. wing to an error on our part we were under the impression the structure rested upon our. and not upon Government ground; hence we were unaware till notified that any encroachment had been made! We were able to send the plan promptly, as we had a single copy in our possession, and have had to ask for its return for further copies to be made for our own
use.
(b). This case of omission was first notified to us by summons on the 4th inst. It is for an encroachment on Crown lands and neglect to send plaus of a small pier erected on the foreshore. Similarly to base (a) we
!
If you will turn to the Ordinances of the co- lony, compiled for, and authorised by, the Go- vernment, 1892, you will find the Building Or- dinance No. 15 of 1889 most clearly lays down, in sections 84 and 86, the penalties attachable to persons offending against its provisions. There is therein no power given the Stipendiary Ma- gistrate to pronounce an alternative of imprison- ment, either with or without hard labour, in event of a fine not being paid.
The gratuitous addendum to the decision of liberate insult to us, and indicates a want of dis the Magistrate is, under the circumstances, a de- eration that suggests how dangerous it is to 1a the application of such power in the hands Directained officials.
Li
Tota
Further king the summonses in the tion above noted? Summons (a) come for penalty under section Ne. So, which is Summons (d) come under neither of the penalty fixed as not exceeding $100. Summons (c) clauses 84, 85. Clause 84 states the penalties while the section we contravened was No. 69, for attach to sections 54 to 66, both inclusive, only, not sending plans to the Public Works Depart- ment. We have, therefore, been unjustly and erroneously fined $100 upon these two sum-
monses.
33
Snoh a scandalous instance of " competency
competent in- law recently referred to by the leading Judge savours much of the “ quarterdeck of the colony.
what. Government legal offical was consulted by It would be interesting to know if any, and the Director of Public Works in his condnet of this affair..
two encroachments (a & b) had we committed any We have conclusively shown that only for the offence indictable by summons against the Or tencies. dinance, and that these were technical inadver-
That in the first case (a) the Government had given their assent; in fact, condoned our omis- sions by giving permission to do what we had done before the summons was returnable. And, no doubt, in second case (b), similar permission will be granted so soon as we are in a position to submit the necessary plan. The Building Ordi- nance is of a particularly drastic nature, mainly framed to meet the delinquencies of natives. Its application to those who have no intention of evading its provisious is strained and nnreason- able. In no instance have we shown any désire to escape its provisions. We have care- fully complied with any demands that have been preferred by the Board of Works for information, plans, etc., etc., and have never met the slightest discourtesy from the heads of that l'epartment till now. If the usual and proper cours had been pursued of writing, call- ing attention to our omissions, the matter would have been put straight at once. Instead, the particularly offensive method of procedure by summons was adopted.
We feel we have been most improperly dealt with by that offensive officialism of office that