March 26, 1898.]
The following gentlemen composed the jury: Messrs. J. M. Gutteriez, L. M. J. Alvares, M. de Silva Germaraes, J. W. Osborne, G. C. Fullerton, J. Burton, and R. Hill
The Attorney-General said it was alleged by the prosecution that the prisoner obtained the prosecutor's bank pass book and by forging his signature obtained $260 from the National Bank of China, Limited,
The case was.concluded on the 22nd, when the prisoner, was found guilty and sentenced to nine months' imprisonment with hard labour.
19th March.
IN SUMMARY Jurisdiction.
BEFORE SIR JOHN CARRINGTON (Cher
JUSTICE).
CHENG SING TONG v. HO FUNG TING.
The plaintiff sought to recover $1,000 from Ho Teng Fung, alias Ho Ting Kwai, alias Tai Ka Ping. The money was alleged to be due on a promissory note for $1,200, but the amount was reduced in order to bring the case in the summary jurisdiction of the court.
Mr. J. F. Reece appeared for the plaintiff, and Mr. J. J. Francis, Q.C. (instructed by Mr. C. Ewens), for the defendant.
The evidence for the plaintiff showed that the promissory note was made in San Francisco in 1893. For some time past the plaintiff and defendant had resided in Canton, and neither had permanent residence or business in Hong- kong.
Mr. Francis contended that the Court had no jurisdiction to try the case and in support.
CHINA OVERLAND TRADE REPORT.
His Lordship, without calling upon Mr. | Francis to reply, gave judgment. He ruled that the defendant was here for the purpose of trade. Ogilvie's dictionary gave various meanings of the word "trade," and he thought that in this case they should take it as referring to the occupation of a person or persons who might occasionlly visit the colony. It was in evidence that defendent visited the colony for the purposes of his business as an actor, and for the purpose of performing in a company of actors, and he thought the case fell with in the terms of the word there relating to trade and relating to traffic. In regard to the action itself, the cause had arisen out of the colony, and it was quite clear from the enacting words of the Ordinance that the Court would be bound to dismiss the suit. Referring to the amending Ordinance No. 10 of 1871, his Lord- ship thought the plaintiff had not satisfied the Court that the mischief did not fall within the mischief aimed at by Ordinance 2 of 1951. He thought the case did fall within the mischief. It had been mentioned that in the dominions of the Emperor of China there were no efficient courts of jurisdiction. Her Majesty's courts in this colony, had not been erected for the purpose of mitigating that defect, but for the trial of cases clearly coming within the jurisdiction of the court. His Lordship did not think it was ever intended that parties should come from the dominious of the Emperor of China to these courts solely for the purpose of obtain- ing legal proceedings against each other. He dismissed the suit with costs.
22nd March.
IN ORIGINAL JURISDICTION,
229
On Tong aud Fu Shun Tong. Shortly after, for reasons of their own, these two tongs agreed to separate, insomuch that each should retain a half share in the concern, but the two together should remain as one under the name of Kung Ki. For the purposes of this judgment we need not concern ourselves with the partners in the Man On Tong, but with reference to the Fa Shun Tong the plaintiff's case is that the defendant and Tso Cheung were the sole partners. As time went on the Chinese authorities began to press the farmers for more money, and there is no doubt that towards the end of 1896, or certainly early in 1897, the members of the syndicate found themselves in great difficulties, and as a matter of fact the grant was cancelled a short time after, and the money already deposited was confiscated by the authorities. Under these circumstances the plaintiff states that on the introduction of Tso Cheung, and at the request of the defeudant, he agreed to advance $5,000 to defendant as a partner in the Fu Shun Tong, but that as he had not the money with him at the time, and the defendant wanted to return to Canton, it was agreed that the defeud- ant should send one Chau Tai Shang down to Hongkong to receive the money. In accor dance with this arrangement Chau Tai Shang came down on two separate occasions and received the sums of $3,000 and $2,000 on Febru- ary 26 and March 1, 1897, and in return gave the plaintiff the two promissory notes sued on (exhibits A and B). The plaintiff also states that these were not his only loan transactions with defendant, for that in January, 1897, Le bad already received sums of Tla. 200, Tls. 200, $3,000 and $2,000 in repayment of loans. made by him to the defendant. There were also other money dealings which I need
of his argument quoted the preamble Before Mr. A. G. WISE (PUISNE JUDGE.) not mention here. The plaintiff is supported in
of Ordinance 2 of 1851 at follows. Whereas from the vicinity of the colony of Hongkong to ‘the dominions of the Emperor of China, it is of frequent occurrence that Chinese subjects visit- ing the said colony for a limited time and for the purposes of trade, emplead and cause each to be arrested for causes of action arising within the said dominions; and whereas such proceedings are not only inconvenient from the difficulty of procuring proper évidence and for other rea- sons, but are frequently resorted to for the pur- pose of extortion, and likewise tend to the in- jury of traffic within the said Colony: neither the Supreme nor any other Court within the colony aforesaid shall bave or exercise jurisdic- tion in any civil proceeding as between persous born within the dominions of the Emperor of China where the cause of action has originated out of the said colony, unless the defendant has been a resident therein for six consecutive months prior to the time of commencing any action, suit, or proceeding grounded on such cause of action."
In this case, Mr. Francis submitted, the parties had not been resident in the colony for six months and the plaintiff, knowing the defendant to be here, had come down for the sole purpose of prosecuting this suit. In certain cases the Court did have jurisdiction, as Ordinance 10 of 1871 laid down that jurisdiction could be exercised" provided only it shall be made to appear to the satisfac- tion of the presiding judge in such court that such jurisdiction may be exercised without the mischief contemplated by such Ordinance." Counsel submitted that such mischief would be caused if this case were allowed to proceed Plaintiff had made no application for redress in the Chinese courts, and he had come down here, caused defendant to be arrested, forced him to give security, and had necessarily detained him in the colony. This was the very mischief the Ordinance was framed to prevent, and counsel therefore asked his Lordship to rule that jurisdiction should not be exercised.
Mr. Reece contended that the preamble of Ordinance 2 of 1851 referred only to merchants and was for the purpose of protecting the trade of the colony, but neither the plaintiff or the de- fendant had visited the colony for the purpose of trade. The cause of the action arose in San Francisco and not in the dominion of the Emperor of China, and for the just and proper hearing of the case, it should be tried in Hong- kong and not in China. There was no competent tribunal in China, and his Lordship well knew that litigants from China were very much more likely to obtain justice in this colony than in China.
LI SAU V, TSOI HEUNG PO AND ANOTHER.
In this case the plaintiff sought to recover $5,000, money lent to the defendants on a pro- missory note.
Mr. J. J. Francis. Q.C. (instructed by Mr. Hastings), appeared for the plaintiff, and Mr. W. V. Drummond and Mr. E. Robinson (in- structed by Mr. Ewens) for the defendants.
The case was commenced in January fast and has occupied his Lordship during ten days.
His Lordship delivered the following judg.
meut:--
This suit was brought in the Original Juris- diction to recover $5,000 for money lent to two defendants. Judgment was given in default of appearance against the second defendant and the question of the liability of the Tsoi Heung Po was by consent referred to me for trial. When the case came on for hearing on 17th January, 1898, Mr. Robinson, who during the earlier part of the case appeared alone for the defendant, raised the preliminary objection that the fact that judgment had already been given against the second defendant was a bar to further proceedings against Tsoi Heung Po However, after hearing counsel on both sides, I overruled the objection, and decided that the case should proceed against Tsoi Heung Po. During the course of the trial, which lasted nearly ten days, Mr. Drummond joined Mr. Robinson for the defence. Before proceeding to discuss the stories put forward on behalf of the plaintiff and defendant I may mention that I intend to follow the excellent example set me by the opposing counsel on the last day That is, I sha'i .void any minute of the trial. examination of the evidence, which was very voluminous, and shall endeavour to form an opinion on a general review of the statements made by the various witnesses. I am the more inclined to take this course as it appears to me that perjury and forgery were rife, certainly on one side and perhaps on both, and that the real question for me to decide is whose account contains the lesser amount of falsehood. It appears that in the early part of 1896 the then existing Wai Sing lottery farm, the head quarters of which were a Canton, came to an end and certain speculators in Canton and Hongkong determined to try and obtain an- other grant of the farm from the Chinese authorities, for which purpose of course they would have to put up very considerable sums of money. Accordingly some arrangement was come to between the anthorities and certain persons representing two tongs named the Man'
his story by Tso Cheung, who admits that he was a partner in the Fu Shun Tong and has, as I have already mentioned, allowed judgment to go against him. Tso Cheung states that defendant was also a partner in the Fu Shun, and as such interested in the lottery farm, and be supports the plaintiff in his evidence as to the loan, the arrangements for which were made in his presence. He also identifies the chops on exhibits A and B as being the chops of the. Fu Shun Tong and he states that the defendant affixed the chops ou exhibit B in his (the witness's) presence. He also recognizes the chops on two other documents (exhibits C & D) and swears that he saw defendant sign both. He denies that the defendant ever lent money to the plaintiff or to the farm; but with regard to this latter point I think he is mistaken, for two documents (exhibits P & S) were shown to him and he admitted that the signature and chops were genuine. Chau Tai Shang (the man who is alleged to have got the money from the plain- tiff and handed it to the defendant), was also called as a witness and bore out the plaintiff's story as to the loan, and further says that he handed the money himself to the defendant. Ho Wy son, who was largely interested in the farm, was another witness. He states that defendant was a partner in the Fu Shun Tong, and in support of that refers to docu- ment, exhibit D. which he says he saw the defendant sign and which signature purports to be his signature as a partner in the Fu Shun Tong, along with Tso Cheung. A man named Li Tsat was also called to prove that he had lent money to defendant and in return had received a document (exhibit R) which had similiar chops and a similiar character to those on the promis- sory notes sued on (exhibits A and B). That very briefly is the plaintiff's case. The defend- ant on the other hand absolutely denies that the plaintiff ever lent money to him and states on the other hand that he (the defendant) lent money to the plaintiff, and that the sums of $3,000 and $2,000 al eged to have been sent to him in Canton by the plaintiff were really only repay. ments of loans by defendant to plaintiff, and points ont entries in his books in support. He further denies that he was ever a partner in the Fu Shun Tong but was only a manager, and that
his connection with the from was that of official
secretary merely, and of course he denies his signature to exhibit D. He goes on further to explain that the Fu Shun Tong had two sets of chops, one what was called the inner counter and one for the outer counter, and that only the inner counter chops were used for