A
May-26, 1900.]
CHINA OVERLAND TRADE REPORT.
Mr. Sharp said he was perfectly prepared to admit that Chinese fishermen had been in the habit of dredging for these shells and this coral as far back as living memory extended:
The Chief Justice said that if there was no agreement between counsel they had better go on. He understood that the facts would be taken and then the Court would be ad. dressed on the facts and the law together.
Mr. Slade said the facts would take a very short time. There was no dispute between them. He could not understand how they could not come to an agreement.
Mr. Sharp said that this was a matter of anci- ent war between these itinerant poachers and the lessees, and it would be impossible for him to admit that "without let or hinderance these men had done this.
**
The Chief Justice--Very well; go on with
your case.
In his answer the defendant admitted para- | them. That was the point about which they graphs 1, 2, and 3 of the petition, and the answer differed. continues:(2) It is a condition of the agreement dated the 20th December, 1899, in paragraph 3 of the petition referred to, that the planitiff use the premises thereby agreed to be demised so as not to interfere with fishing and navigation. (3) The said premises are situate beneath the waters of the open sea, and the defendant as a member of the general public has a prescriptive right of taking therefrom in a lawful and accustomed manner fish and all other natural products of the sea. (4) From a time exceeding the limits of living memory, Chinese fishermen have without let or hindrance, and in exercise of their lawful rights, taken by dredging the natural products of the sea as well as from the said pre- mises as from the adjacent and surrounding waters and the land beneath such waters. (5) The said premises are situate within the district leased to Her Majesty the Queen by His Magesty the Emperor of China by and subject to the conditions contained in the Convention dated the 9th day of June, 1898. (6) It is a term of the said Convention that there shall be no expropriation of the inhabitants of the said district. (7) The de- fendant is an inhabitant of Sai Kok Tsui, situate within the said district, and has a right to take the noticed products of the sea including shells and corals from the said premises. (8) The defendant denies that on the 12th January, 1900, he entered on the said pre- mises and took therefrom corals or shells as is alleged in the petition or at all, but says that if he did enter the said premises. which he denies, that he entered thereon while engaged in fishing for shell fish by dredging in lawful and accustomed manner. and that he took only shell fish obtained by such dredging together with other substances un- avoidably brought up by the dredges, together with the shell fish for which he was seeking. (9) The defendant denies that he trespassed on the said premises, or that the shells and coral on the said premises are the property of the plaintiffs. and says that by reason of the matters herein. after set forth he has the right to enter on the said premises and to take therefrom coral and shells, which are natural products of the sea, or alternatively that he has the right to enter on the said premises and to dredge for shell fish thereon in an accustomed manner, and to take and convert to his own use whatever natural products of the sea his dredges may bring up.
Mr. E. H. Sharp (instructed by Messrs Deacon and Hastings) appeared for the plain- tiffs, and Mr. M. W. Slade (instructed by Messrs. Wilkinson and Grist) appeared for the defendant.
The Chief Justice-Have you gentlemen made any arrangements as to the course of the case, so to speak?
no-
Mr. Sharp said they had tried to arrange mutual admissions of fact, but though he did not suppose his friend had been wrong at all in the course he had taken; at the same time he asked them to admit facts they had no knowledge of. For instance, he asked them to admit that the defendant was an inhabi- tant of a certain place. They knew thing about the defendant. He might be an inhabitant of a certain place or he might not. He was quite prepared to make certain admis- sions of fact, because he thought his friend and himself felt that this was an argument of law and very slightly an argument of fact. His own impression was that it was not at all an argument of fact. He believed his friend would not entirely agree with him there, but they were quite prepared to make all admissions which their Lordships thought they should make, but they could not admit what they did not know anything about.
The Chief Justice-Perhaps the most con- venient course would be to prove the facts and have the general argument afterwards.
Mr. Slade said that with reference to prov- ing that the man was an inhabitant of a cer- tain place, as SOON HS his friend said he did not know of course he did not require any admission on the subject. He was per- fectly prepared to assume it. The only question which was between them was whether or not they would admit that the defendant, or rather Chinese fishermen generally, had fished, in these waters as far back as living memory extended without any objection being taken to
363
to the Water Police Station at Tsim Tsa Tania charged with dredging for coral in a prescribed area south of Lantau Island. The masters of the junks were charged separately with larceny of varying quantities of coral. They were all bailed out and the cases came up at the Police Court the following day.
In reply to Mr. Slade, the witness said ☀ the men were brought to the Water Police Station by Sergeant Kerr. The coral was cleared out of the junks and placed in the Police Yard. When the case was dismissed at the Police Court the owners of the junks got the coral back, except a sample which was kept
back.
The Chief Justice-What became of the cases in the Police Court P
Inspector Kemp-Dismissed, your Lordship. Sergeant Kerr gave evidence as to the arrest of the junk-owners caught dredging. He added that he asked them if they knew they required permission to gather shells and they said no,
Mr. Slade, in consequence of certain questions being put to the witness, said he was prepared to admit. That the stuff got up in the locality in question was practically all dead shells. They were not dredging for food, but for manure.
Mr. Sharp said that that would simplify hs evidence, because in the pleadings the point was raised as to fishing for live fish.
Chau Kwai Chiu, one of the plaintiffs and since december 20th last year a member of the Li Hing Arm, gave evidence. Ho Kan Chi, a boy in his employ as patrol, also gave evidence.
Mr. Bruce Shepherd, deputy land officer, and in charge of the Land Office, was asked by Mr. Sharp whether any claims had been made in respect of leases from the Chinese authorities regard to coral or shell beds like the lease in dispute.
Mr. Sharp said he thought he need not open this case at any length at all. The facts upon which the plaintiffs relied were no doubt almost within the knowledge of their Lordships. As their Lordships were aware, a convention was entered into between Her Majesty the Queen and the Emperor of China in the year 1898 for an extension of the colony of Hongkong. No doubt contain terms and expressions used in that contion would have to be settled, and the nati.ce of the tenure which the Crown had in respect of the property within the area of the tension. Within the area added to the colony of Hongkong by the con ntion of 1898 ere sundry coral and shoil beds, as they were called.
The material seemed to be rather dead shells than corals. He thought he would be able to satisfy their Lord-in ships that many of these coral and shell beds within the limits of what was called the New Territory had before the acquisition of the New Territory by Great Britlan been granted under lease or concession by the Chinose authorities to Chinese subjects.. He did not suppose that all had, probably only the most valuable. He thought he should be able to satisfy their Lordships that an ancient war. going back as far as living memory, had waged between these itinerant dredgers, or poachers, and the concessionaires of these shell beds. Such of these shell beds which had not been leased from the Chinese authorities were regarded as open ground by these itinerant dredgers, and no doubt they were. On the 14th October last year a lease of a shell bed known as marine lot No. 1, off Lantau Island, was granted to some people,
|
one of whom was called Lai Kau. This lease was similar to the one before their Lordships that day. The granting of this lease in October last was followed by an outery and a protest from the itinerant dredgers, one of whom was defended by his friend that day, who claimed a prescriptive right to gather these
corals and shells and that the Government were precluded from granting any lease. This pro- test and petition were considered by the Govern- ment. Enquiry was made, and the result of that enquiry was to ascertain that the conces sionaire of this particular shell bed was able to sell his lime more cheaply than other people.
Mr. Slade said his learned friend's address was very interesting, but as far as he had gone he did not know that he had said one word which was strictly evidence in the case.
Mr. Sharp-I am going to call evidence. Mr. Slade-I shall object.
The Chief Justice said it did not strictly relate to the case but might help to a clearer understanding.
Mr. Sharp, continuing, said that as the result of the enquiry these petitions were dismissed, and thereupon the plaintiffs applied to the Go- vernment for a lease for marine lot No. 2. which lay alongside marine lot No. 1. and a lease was granted upon similar terms and for a similar period as the other lease on the 20th December. The granting of the lease was followed by the patrolling of the leased area by the police, in consequence of complaints made by lessees of marine lot No. 1. The result was that on the 12th January this year the defendant was arrested in his junk in the act of dredging for this material within the area of the lease. !
Inspector Kemp deposed that on the 12th January the owners of five junks were brought
Mr. Slade said he objected to the question on the ground that it was perfectly irrelevant, if these claims did not refer to this particular piece of land.
The objection was over-ruled.
Mr. Shepherd then answered that several fishing rights, including the right to gather claims had been made in respect of grants of
shells. The difference between the grant of the Chinese authorities and the grant in question was that the Chinese grant included the right kong Government excluded the right of fishing. of fishing while the present grant of the Hong- These claims had been supported by documen and said he had also proclamations issued by the tary evidence. He produced a lease in Chinese Chinese Government as to these matters.
The Chief Justice-There ought to be some more direct proof. We should have someone conversant with Chinese law.
On being asked by the court if these claims had been recognised and registered by the British Government, Mr. Shepherd replied- We have not recognised any claim until the constitution of the Naval Court.
The Chief Justice-All that has been done has
been to note these claims without recognising their validity.
Mr. Shepherd-We recognise their validity by taken their rents, subject to their proving their title to the satisfaction of the Land Court. We do not mind who pays the rent.
Mr, Slade-If anybody wants to pay the rent the Land Court takes it.
Mr. Shepherd--The Treasury takes it on the production of a certificate from the Land Office, which is based upon such enquiries as they are able to make.
Mr. Slade said he did not seriously deny that his client was on marine lot No. 2. scraping up staff of this kind-call it coral or what they would-from the bottom of the sea. But he said he was entitled to do it, and his title to do it rested upon long and undis- puted doing of the same thing by Chinese fisher men as far back as living memory_could go He should prove that by a series of witnesses whom he should call. One or two of them were very old men who had been in the business from their boyhood. Their ages were between 60 and 70. He did hope to get an old gentleman who he believed was over 80, but on further en- quiry he found he was blind and deaf, so that it Would be impossible for him to give his evidence. This man was the father of the de fendant. He should prove that these fishermen