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THE HONGKONG WEEKLY PRESS AND
the amount recovered as damages and 30 per cent. of the amount recovered for the loss of life. These terms were agreed to and the parties went to Mr. Mounsey's office, where Wong Chuk Lam took down the junk owner's statement. Two actions were brought against the P. and O. Company, who paid altogether $2,000 as compensation. Of this amount Mr. Mounsey, as solicitor for the plaintiff, received only $150, while Kwok Hin Tai received $900 | and Wong Chuk Lam $950.
In accordance with the application a case was stated, the first paragraph reading as follows:-- "At the Police Court at Victoria, in this colony, on the 6th day of November, 1897, an information prepared by Francis Heary May, Captain Superintendent of Police (hereinafter called the respondent) against Pang Kun Chee (hereinafter called the appellant), under the common law of England, charging for that he the appellant on or about the 8th day of April, 1897, at Victoria, in this colony, unlawfully did commit the offence of champerty for that he and one Wong Chuk Lam did agree with one Kwok Hin Tai to commence an action against the owners of the British steamship Rosetta, in the name of the said Kwok Hin Tai, on condition that the said Kwok Hin Tai should pay to the said Pang Kun Chee and the said Wong Chuk Lam, 60 per cent. of any amount that might be recovered on account of the said action, was heard and determined by me, the said parties respectively being then present, and upon such hearing the appellant was duly convicted before me of the said offence, and it was adjudged that he should pay a fine of 100 dollars and further be im prisoned in the Victoria Goal for a term of six weeks with hard labour."
Mr. Francis (instructed by Messrs. Wilkin son and Grist) appeared for Pang Kun Ches and Mr. Slade (instructed by Messrs. Deacon and Hastings) for Wong Chuk Lam, the At- torney-General, the Hon. W. M. Goodman (instructed by Mr. H. L. Dennys, Crown Solicitor) appearing for the Captain Superin- tendent of Police (the Hon. F. H. May). The case of Wong Chuk Lam was first heard.
Mr. Slade mentioned the case as stated by the Magistrate and the points contained thereon for their Lordships' consideration. He called attention to the fact that the point, "Was the appellant rightly convicted of champerty-do the facts in point of law amount to champerty?"
had been omitted for some unknown reason from the amended case, and he asked the court to further amend the case.
Mr. Francis supported the application, and The Chief Justice said the Court would farther amend by inserting as one of the questions for consideration, whether if champerty was a criminal offence in the colony the appellant was rightly convicted.
Mr. Slade, continuing, said he thought it would be most convenient to take two of the questions-the first and the last-together, as they uaturally ran together. Those questions were, shortly(1) What is the crime of champerty? (2) Was the crime of champerty a crime in England in 1843? Before be pro- ceeded to quote any authority, he should like to refer to certain points which arose on the aspects of the case. The first point was this, that the offence of which this appellant had been found guilty was entering into an agree. ment-not an agreement to advance money to pay the costs of a suit which was then commenced, but to pay the costs in a suit about to be commenced in considera- tion of a share of anything that might be re- covered in the case. The appellant was not found guilty of doing anything except enter. ing into an agreement prior to the commence- ment of a suit. It was almost too easy a task
to show that the offence of champerty, what ever it was, was not "entering into an agreement." This was perfectly clear, but his learned friend might argue that the case found rather more than this. On the case he had been guilty of "entering into an agreement," and the Court was bound by the finding of the Magistrate; but putting the worst construction on the find ing of the Magistrate he contended that the appellant had not been found guilty of the crime of champerty. He had not been found guilty of that crime, because what he had been found guilty of was not champerty, and from no
possible interpretation of the facts as put before the Magistrate could he have been found guilty of champerty. There was no doubt about it that a collision happened. This claim was not a false claim. This junk was run down and four lives lost. It was also found to be a fact that the owner of the junk came to Hongkong and sought out these two men to assist him in getting compensation. It was not as if Wong Chuk Lam wont to him and stirred him up to bring a false charge against the P. & O. Com- pany. The man conceived that he had a just claim against the owners of the steamer Rosetta and took pains to get legal advice with the view to prosecuting his suit against the P. & O. Com- pany. Not only was there no suggestion that the suit was unfounded, but that there was rea- sonable ground for bringing the action was proved by the fact that the P. and O. Company thought it worth their while to settle it. There was nothing to show that his client did anything beyond what it was his duty to do as clerk to Mr. Mounsey, who was the solicitor for this fisherman in his two suits against the P. and O. Company. What was the crime of champerty ? Their Lordships were asked in this matter to decide an exceedingly difficult question, for he might say that there was practically no proper authority whatever as to what was the crime of champerty. He could state with- out fear of contradiction that after a most exhaustive search he found no reported case of a conviction for champerty or mainten. ance for the last 300 years, and from that he thought it would be fair to assume that no conviction for champerty or maintenance had been obtained in England for the last 300 years,
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The Chief Justice-Of course cases only get into the reports when there happens to be a reporter present and a legal point is raised.
Fas
5th April.
[April 9, 1898.
Mr. Slade, continuing his argument, con- tended that it was the perversion of justice which made the champerty, adding that in neither of these two cases was there any proof that justice had been perverted.
The Attorney-General said he appeared for the respondent in this case because he thought that, for the honour of the legal profession in this colony, some effort should be made to check the nefarious practices of these "lawyer's touts," and that it was most important to ascer tain whether the law of champerty was still a
living doctrine," such as Lord Coleridge had declared the law of maintenance to be, in the case of Bradlaugh v Newdegate, fifteen years ago. It had been urged that the law of cham- perty, so far as champerty was an offence, as opposed to a civil tort, was obsolete. That objection, however, may be answered in the words of Maxwell on Statutes, p. 380, where it is stated: "A law is not repealed by becoming obsolete;" and the writer proceeds as follows:-
Thus trial by battle, with its oaths denying resort to enchantment, sorcery, or witchcraft, by which the law of God might be depressed and the law of the devil exalted, though the trial by grand assize, introduced by Henry II., had practically superseded it for centuries, was still in force in 1819." Indeed, it was resorted to in Ashford v. Thornton, reported in 1, Barnwell and Alderson's Reports, p 404; where William Ashford in 1818 appealed one Thornton for causing the death of the sister of Ashford, and wager of battle" was claimed, and the appellee pleaded not guilty, adding body," and duly took off his glove and threw it "and I am ready to defend the same by my
on the floor of the Court. That law had been obsolete for centuries, for over six centuries Mr. Slade said he suggested that that since Henry the Second's time, but it was a reasonable deduction to draw from found necessary to give effect to it, until it was the absence of any report. It seemed to formally repealed in 1819 by 59 George him, at any rate since the middle of last cen- III., c 46. It is no answer, therefore, to say a tury, almost impossible that a case of criminal law is obsolete until it is formally repealed. champerty indictment could have been raised The law therefore being in force in 1843 in at home without the point of law being raised England it is necessary to ascertain what that as to whether or not the facts constituted
law is. For that purpose, the best course is to champerty. Since the middle of last cen- consult the leading text books of authority, but tury everything of interest from a legal point before dealing with the modern works it may which had taken place in every court of record be well to call attention to a passage in Haw- in England had been reported, the reports being kins' Pleas of the Crown, p 455. The writer made by lawyers, who were generally on the asks "What shall be said to amount to an act look out for interesting points of law, and the of maintenance?" and proceeds: "It seemeth absence of any record as to any conviction for clear that whosoever assists another with money criminal champerty entitled one to assume that to carry on his cause as by retaining one to be at any rate for the last 150 years there had been of counsel for him or otherwise bearing him no attempt to obtain a conviction for mainten. out in the whole or part of the expense ance or champerty. Prior to 150 years ago it of the suit, may properly be said to be would be impossible perhaps to draw the same guilty of an act of maintenance." It is conclusion, as the reports were not as full and alleged the appellants did assist the junk as carefully compiled as they had been since,
owner not only by assisting him with money but it would seem to be exceedingly unlikely but by practically carrying on his cause them. that such an interesting trial would have been selves and annexing and pocketing more than omitted from all reference in any law book half the compensation given to him. It is during the last 300 years. There was no re-
worth noting that in Pechell v. Watson, 8 ference in any of the text books to any Meeson and Welsby, in 1841, Sergeant Bompass,
of reported case an perty subsequent to the reign of Elizabeth. where no suit had actually been begun was not indictment of cham- who argued and took the point that assisting
In one of the old black letter reports actionable, added "although it may be indict- written in Norman French during the reign of able." Indeed, the evil to be repressed is the Elizabeth there was a reference to an appeal of interference of outsiders with legal claims in maintenance. Whether that was a criminal which they have no interest, and in which they appeal or an appeal in chancery he was not
have no concern. Interference, for the pur- dearth of criminal actions in reference to these person interfering may rob the claimant of half pared to say. This dearth of convictions, this pose of inciting to litigation and so that the
two offences was remarkable. In respect to of the result of the suit by sharing any com- civil actions, the question as to what amounted pensation awarded is most injurious in its to champerty or maintenance had come before tendency. It tends to promote perjury and the courts in comparatively modern times, and strife. It is gambling in litigation, and án: their Lordships would have some guidance as to outsider who has advanced money is not likely what amounted to champerty or maintenance in to be very particular as to the means he takes a civil sense. He submitted that the offence of to win. With Chinese "touts" and Chinese champerty might be fairly said to be obsolete. witnesses such means are not unlikely to include Offences which in former days would have been false evidence. The tendency of the whole treated and furnished as champerty or main-proceeding is subversive of justice. The At tenance were now divided-such as bribery, torney-General then commenced referring to intimidation of a judge, a judge guilty of not the authorities and contended that the doctrine dealing properly with applicants who came be-
was correctly laid down in the second edition of Russell on crimes. fore him, a man who secured perjury, a man who threatens a jury. Mr. Slade further argued this point, and then went on to deal at some length with the definitions of the crimes of maintenance and champerty given by different authorities.
The hearing was adjourned.
pre-
April 6th.
The Chief Justice, in delivering judgment decided that on the 5th day of April, 1843,
i.
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