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THE HONGKONG WEEKLY PRESS AND
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[November 3, 1900.
Mr. Francis objecting to the question of de- lay being discussed in this issue,
ing the cares in which awards can be set aside an Ordinance taking away the rights of case was not bound to hear the parties in England, which is fully gone into in crown lessees was upheld. As Sir Fielding and Counsel, and have s judicial enquiry Cap. IX of Russell on Awards, beginning at p. Clarke there remarked in his judgment,
"With as a Judge would have had. It may be 663, or by considering the Imperial Arbitration the policy of the Ordinance or the adequacy of urged that the statute imposes a hardship Act 1889 (52 and 53 Vict, c 49) because all those the compensation clause the Court can have no on the petitioners, but Baron Rolfe said in Awards are Awards in the proper sense of the concern, and Sir James Russell, the then Winterbottom v. Wright, 10 Meeson and Wels. term, made by arbitrators to whom the matter Chief Justice, said:
by p. 116, Hard cases, it has been frequently has been submitted by consent of the parties to But apart from the merits of this particular observed, are apt to make bad law." It is no some dispute, or by order of the Court. The case. whatever may be the rights of this or any doubt a hardship on the plaintiff to be without common law Courts had no jurisdiction to set other Marine Lot holder, the jurisdiction of this a remedy, but by that consideration we ought aside awards, except in cases within 9 and 10 Court is completely ousted by the Praya Re- not to be influenced." So too Lord Justive William III., e 15. or the Common Law Proclamation Ordinance. The Legislature has, by Brett at p. 618, in re Perkins, 24 Q.B.D. cedure Act 1850 (both repealed by the Act of section 7 s.8. 6, enacted that Crown lessees who p. 613, says agree that is the law, 1889). In all other cases a Bill in Equity was have not come in under Sub-Secs. 1 and 2 shall though I think it a hard law, but we have the remedy, but I think that was only where the have no claim to compensation in respect of any nothing to do with the question of hardship." submission to arbitration was by Judge's depreciations of their lots by reason of the said As to delay in applying to set aside this order, order of nisi prius or rule of a Court of works, and the Governor is vested with absolute award all such applications must in Eng- Common Law or by private agreement not direction as to awarding compensation to those land be made before the end of the term after under the Statute of William III. ~(See Russell who have not come into the agreement."- If the award made. Smith v. Whitmore 33 on Awards at p. 718). I take it wherever any the plaintiff was refused any compensation by Law Journal Chancery, 218 and affirmed with Court had referred the matter to arbitration, the Governor still this Court cannot help him. Turner, Lord Justice, dissenting page 113. or the parties had agreed to make it a rule of for sections 6 and 8 extinguish all rights and Court, that Court would have jurisdiction to remedies except those provided by the Ordinance, set aside the award for proper cause. But, in namely, to have an equitable allotment or com- this case, there is no award in the ordinary pensation for injury, as the Governor may sense made by an ordinary Arbitrator to set decide." aside. The Ordinance is unusual and not only enabled the Governor to do the work but to give no compensation at all, or such com. pensation as he thought fit in money or land. The same remarks apply to the Hongkong Law as to Arbitration contained in Cap. 19 of the Code. There the application to set aside an "It is a very useful rule in the construction award must be made within 15 days from its of a statute to adhere to the ordinary meaning publication. (See Section 89 s.s. 11). But of the words used, and to the grammatical con- of course all this law refers to a class of struction, unless that is at variance with the arbitration and awards of a totally different intention of the Legislature or leads to any nature from that referred to in the Petition.manifest absurdity or repugnance, in which case The Governor who made this so-called award was neither made arbitrator by the Court nor by the parties, and I submit he was not an arbitrator at all. However, assuming, as I must, that the question of the form in which the Petition is brought is not open, the question arises whether any legal right of the petitioners has been infringed, for eren assuming, as I must on this argument that the petitioners did not get awarded to them so much as they reasonably expected, still this Court is not a Court to try cases of conscience to say whether what was dane was hard upon the petitioners from a moral point of view. What this Court will desire to ascertain is has any wrong in the legal sense been done to the petitioners? I
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(1) That General Black, the Governor for the time being, in awarding the sum he did to the petitioners, was not acting in a judicial capacity like an Arbitrator appointed by the Court to determine the amount to which a claimant was legally entited, but that he was acting rather in pursuance of a power conferred upon him as Governor and chief of the executive to mitigate a hardship by giving, as a matter of grace; compensation to one who had suffered a loss for which his legal remedy had been taken away by the act of the Legislature.
(2) I submit that the Award was an execu- tive or administrative act and not a judicial act, and that the remedy was to appeal to the Secretary of State.
It is well to consider what Baron Parke called the "Golden Rule" in the construction of statutes. It is stated in Becke v. Smith, 2 Mee son and Welsby's Reports, at p. 195. The report begins at p. 191 and it is discussed in Wilberforce on Statute Law, p. 111. It is as follows:--
The Attorney General then called attention to cases of legislation in England where works were empowered to be carried out, but, as the Act neglected to provide for compensation, none could be obtained by those damaged by the works. The cited Boulton v. Crowther, 2 Barnwell and Creswell's Reports p. 703, and Ferrar v. Commissioners of Sewers of London, Law Reports, 4 Exchequer, p. 227. and the remarks of Chief Justice Cockburn in the latter case, and also quoted Wilberforce in Statute Law p. 29, that the Legislature might injura private property without giving compensation. Proceeding he said-Finally if the Court should hold that it has jurisdiction the language may be varied or modified so as in this case I should be glad if the Court would in- to avoid such inconvenience, but no further." dicato its opinion whether the Governor is bound Now, applying that rule to the construction of to hear counsel or to hear the parties (if they do Sect 7, 8.s. 6 of the Praya Reclamation Ordin not appear by counsel), is bound to allow a oross auce, which says that the Lessee in a cass like ex imination of the witnesses, is bound to re- the present Shall have no claim to compensa-ceive no evidence such as Reports etc., except in tion in respect of any depreciation of his lot hy reason of the said works, but the Governor may, if he thinks fit, award to him such a sum of mouey or such a Crown Lease of new land as he may in his absolute discrection think sufficient, as and by way of compensation for any injury such lessee may have sustained by the sail works." Would not any one applying the ordinary meaning to these words consider the section intended to leave the matter absolutely to the Governor whether there was to be com-
pensation or not and if so how much? It is not. I submit, either expressed or implied that he is to hold an elaborate judicial investigation and hear Counsel, &c., before he decides what he will give. The case of The Newry and Enniskillen Railway Com- pany v. the Ulster Railway Company. 8 De Gox. Macnaghton and Gordan's Roports, p. 487. throws light on my contention. There a Bill was filed to set aside an award made by the Commission- ers of Railways for the payment of a sum of money by the appellants as their proportion of certain expenses. The so-called arbitrators were appointed by an Act of Parliament. The grounds urged for setting aside the award were undue delegation of their authority and the admission of evidence taken ex parte. But it was held by Lord Justice Turner that they were not in the position of private arbitrators but had a discretion which the Court could not control 497. The case made by the Bill is stated at p. The Judgment begins on p. 500, and at p. 503 the Lord Justice points out that the so-called (4) That if the Court holds that in cases un- arbitrators might be amenable to Parliament der section 7, s.s. 6. of the Praya Reclamation for not having discharged their duty," but adds. Ordinance 1889, it has jurisdiction to enquire" I see no ground on which this Court can review
Acts. Public officers may into the proceedings connected with the award | their
be kept and set it aside, this will open the door to that by this Court within the limits of their litigation which, I submit, the Ordinance en-authority, but if their authority is inde- deavoured to obviate. Any dissatisfied claim- ant could harass the Governor by coming into Court with allegations of errors in his mode of procedure, and thus force the Governor to explain to the Court how he arrived at his figures, what evidence he received. what in- vestigation he made, and so forth. This I sub- mit is contrary to the true intent of the Ordin-
(3) That if the Legislature had intended that there should be a judicial arbitration with all its necessary judicial procedure, if the Gor- ernor had to hear Counsel and act like a judge, it is strange that the Legislature did not allot the task to a Judge or to some legal man as Arbitrator.
ance.
Now the Ordinance was well reviewed and discussed by this Court, sitting us a Full Court" in the case of Ryrie v. The Attorney General (the City Hall case) some 10 years ago. The power of the Legislature to pass
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finite how is this Court to define the limits?" See the Judgment generally-Another case of an instructive kind is In re Carnswilson and Greene, L.R. 18,2. B.D., p. 7. decided in 1887. There an application to set aside an award was made and the application was refused. Lord Esher's judgment is very much in point; and I submit that this present so-called award was not one of that class in which it was intended that an enquiry in the nature of a judicial enquiry should be held that the respective cases of the parties should be heard and a decision arrived at upon the evidence laid before the Governor." I submit the Governor in this
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strict accordance with the ordinary lezal rules of evidence, and generally is bound to conduct himself in the same way as an arbitrator in an ordinary legal arbitration. Also, if the present Award should eventually be set aside, the pre- sent Governor will be called upon to make another award, and it is important that His Ex- callency should have some guidance from the Court as to the course of procedure the Court considers he ought to pursue. This will pro- bably avoid a continuation of a litigation which has been already of a prolonged character.
At this point the Court rose.
NOVEMBER 18T.
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CARRING TON, C.M.G. (CHIEF JUSTICE). HOWARD AND STEPHENS V. THE ATTORNEY- GENERAL.
The Attorney-General said he finished his argumout the previous day, but there was one other matter which he thought might assist the Court in coming to a conclusion on the question whether the Governor was intended to be con stituted an Arbitrator in the ordinary sense of the word. It was this. Section 2 of the Praya Reclamation Ordinance authorised the Go- It vernor to carry out the Praya Works. was the work he carried out that cansed the damage which would have given rise to s cause of action, if all claim for compensation had not been taken away by the Ordinance. If the Legislation had intend to appoint an Arbitrator" in the ordinary sense of the word it would scarcely have chosen the person en- trusted by the Ordinance to execute the Praya Works for such a post. Was it not clear, there- fore, that all claims, i.e., legal rights, to demand compensation having been taken away, the Legislature intended to empower the Governor to give, aš a solatium. what he considered moral- ly right where a case of hardship occurred, to give or award so-called compensation as an act of grace or moral fitness, after making such investigation as he deemed right. P
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Mr. Francis said the learned Attorney- General in his reply on this issue argued that the proceedings in this matter which they were seoking to set aside were not in the way of an award at all-that it was not an arbitration and that it was not an award. . If it was not an