154
Magistrate who tried the case; not by the Full Court. The motion before their Lordships was one for leave to appeal, and there was an essential difference between that and a motion for re-hearing, leave having already been granted by the Magistrate. Ordi- nance 10 of 1890 which conferred upon the Full Court juridiction to hear an appeal did not confer any jurisdiction upon it to grant any one leave to appeal. Section 14 stated that any person who desired to question a conviction on the ground that it was erroneous in point of fact might apply to the Magistrate who heard the case for leave to appeal to the Full Court by way of re-hearing. If such leave were granted the next procedure was prescribed by Section 105, which said that the appellant was to file a certificate together with the motion for re-hearing before the Full Court, setting forth shortly the grounds. The motion before their Lordships was a distinct motion for leave to appeal. If that Court had the power, it might grant leave to appeal or not, but it bad no such power. The motion did not comply with the requiren ents of the Statute. The appellant had already obtained from the Magistrate leave to appeal. procedure after that would have been to proper file that leare so as to inform the Court that he had obtained it. That Court could not
His
give him leave. It had power to bear the appellant if he came before it properly, but this motion must be dismissed. The appellant could come before the Court, if so advised, in the proper way later ou. His second objection was that even if the motion for leave to appeal could be regarded as a motion for re-hearing ou the question of fact, this motion was ineffective because it did not comply with the requirements of section 105, ina: much as it did not "set forth shortly the grounds." The section imperatively declared that the appellants shall file the motion for re-hearing and set forth the grounds therefor. The motion said generally that the Magistrate c me to a determination which was erroneous in point of law end fact but did not set forth the grounds as required. Therefore the motion could not be heard. That disposed of the motion made by Mr. Sharp. Objection No. 3 to the motions was that an appeal on question of law could not be brought before the Court by way of a motion for re-hearing. That procedure applied only to appeals on a question of fact and was regulated by Sections 104, 105 and 106. An appeal on a question of law was not a motion for re-hearing. The procedure was that after the Magistrate had been asked to state a case and had done so, the case was to be set down for argument before the Fall Court, and notice thereof given to the other side. That had not been done. He submitted that there was therefore no appeal before the Court, and that both of the motions
a
before the Court must be dismissed as not being formulated in the manner prescribed by law to enable the appellant to be heard or the Court to give a decision.
Mr. Sharp said that the form employed in this case was the form which had been generally in use.
Of course, if it was bad, that would not carry them far, but he submitted it was not. It was perfectly clear that the Magistrate had to grant leave of appeal. but that did not bind the Full Court. The Full Court had got to give its consent also. It was the proper form
to take to ask the Court to exercise the dir cre- tion conferred upon it by Section 105.
The Puisne Judge remarked that the Full Court had never refused a re-hearing.
Mr. Sharp believed that on one occasion a case had been cent back-some years ago.
The Puisns Judge replied that it was ent back because after reading it through the Court could not understand it from beginning
THE HONGKONG WEEKLY PRESS AND
The Chief Justice said that in his opinion the grounds had not been properly stated and that fle notice of motion was all wrong; it should have read that on such and such a day the Court would be moved to re-her, and should not have been for leave to appeal by way of re-hearing.
Mr. Sharp went on to say with regard to the third objection that the case was set down by stated case. the Court before they ever got the Magistrate's
[August 25, 1902, slip that, he believed, the Magistrate admitted; to ascertain what had been done. So far as and was willing to correct.
the motion papers went the Court had come to the conclusion that the motions were bad. : The only question was to do with those two appeals on the question of what they were law. The cases had been stated by the Magis- trate and had been treated as net down for argument, and it was pretty clear that the other side knew that they had leen set down. But he was not sure whether they were regularly set down at the request of either party as it was contemplated they should be by Section 12 of the Magistrates' Ordinance. The question was whether the mere fact of not giving formal notice was fatal to the haring. He did not think the other side should take that view. He thought both notices were bad. Mr. Slade's motion would have been goed if he had bren appealing on facts and had asked for a re-bearing on that ground. There was no question as to the notice of motion for re-hearing on a point of law. All that was required was lo call on the case argument upon it. The best course, he thought, on the day fixed for the would be to dismiss both these motions with costs, and then the Court bad still before them two cases for argument.
of fact the motion appeared to him to be defec- The Chief Justice said that on the question
five. It was not in compliance with section 105 of the Magistrates' "Ordinance. In his opinion the proper form was to apply to the Court that the Court will be moved to re-hear and that, as regards grounds, it was not sufficient to set forth simply that the whole of the evidence sometimes done in England as did not support the conviction. He had seen that gr. and in case everything had not been covered, a terminal
grounds stated. To simply say but it was always in addition to some specific
should not have done so was not giving grounds Magistrate bad convicted upon the facts and Therefore in his opinian the motion question of fact was concerned. was bad and must be dismissed so far as the
at all
that
the
The Puisne Judge said he was of the same opinion clearly.
Mr. Sharp was proceeding to speak on the question of law, when
The Attorney-Gereral said that he had not got tle stated case. He had Mr. to say that the care had been sent. They had Slade's case. however. It was not sufficient
not got it.
sent to the other side; if it had not been received Mr. Sharp explained that the case had been be would have to ask for an adjournment.
The Attorney-General added that what Mr. Sharp had to do was to show that the case had been filed and that it had been set down at his request and notice given to them. They had not got that notice.
Mr. Slade having addressed the Court, The Attorney-General stated that, assuming been given as required, he took objection on for the sake of argument that the notice had the question of form.. Only a motion to re- hear was before the Court, and go his learned friend had no right to be there at all, for there could not be a "re-hearing" on a question of law. He asked their Lordships to dismiss the motions on the ground that they were not properly before the Court.
The Chief Justice said it appeared to him that there had been some singular misconcep- tion on the part of the appellants as to the The matter was clearly laid down in the mode in which these appeals should be conducted. Magistrates Ordinance. With regard to the appeal on fact the motion paper should have been
hear and it should have gone on to set forth worded that the Court would be moved to re- the grounds why the rehearing was asked. With regard to an appeal on the ground that the Magistrate's decision was erroneous in point of law, such an appeal could only be raised by a case stated and signed by the found a certain set of facts and stated what were Magistrate. As to the stated case the Magistrate
the grounds of his decision, and the party obtained that case by going to the Magistrate and asking him to state a case. He did so and then you had got your material for appeal in point of law and what you had got to do was this: in 14 days from the delivery of that case you had to transimit the case to the Registrar writing of the appeal to the other side and send and before doing that you must give notice in
with it a copy of the case so stated. When you :ent the case stated by the Magistrate it gave the other side notice of what you were abandon it and therefore you must give notice do.ng, but you might, after raising the case,
to the other side, which showed that you were Mr. Sharp contended that the two things going to prosecute the appeal, viz., notice of the were practically identical. As to the second day appointed for the argument of the case. objection, that the grounds were not set forth, to be sat down for argument and was to When transmitted to the Registrar, it was there was only one finding of fact and that was that these men kept a gaming-house; they only to heard by the Fall Court provided that the assailed a section of the evidence and said & parties setting it down gave four days' clear slip had been made by the Magistrate in apply. I notice of the day fixed by the Court for bear ing certain evidence to the wrong mena ing. He had not any affidavits to enable him
to end.
Mr. Sharp added that what was desired was that the Court should exercise its discretion to grant or not grant a re-hearing.
The Fuisne Judge pointed out that the appellant did not ask for a re-bearing but for leave to appeal.
}
The Puisue Judge concurred
The Attorney-General pointed out that it was required that the parties setting down the case must give the other side four days' clear notice that it had been done. The only notics he had got was the notices of motion which their Loidships had just dismissed.
The Chief Justice remarked that in addition to dismissing the motions the Court would fix Thursday of next week for hearing the cafes subject to any objection that might then be taken.
The Court adjourned.
THE WRECK OF THE
"ADELHEID,”
With regard to the wreck of the s.s Ade.heid, the captain, being interviewed on behalf of the Singagore Free Press, reports as follows:- The s.s. Adelheid is a new stermer, 900 tons noit register. She arrived in Labuan form Mauila on the 22nd ult., took bankers and sailed the following afternoon in ballast for Bangkok. On leaving Labuan the weather was fine, but 24th alt., at 1.40 pm, struck S. E. point of the we met very strong currents. On Thursday,
westernmost reef of the S. Luconia shoal, As she was going full speed she ran right up on the reef. There was deep water all round. This reef is some 160 miles W. of Labuan and some 80 miles from Baram Point. We tried steaming, full speed astern, hauling
on
The
our auchors, but to до avail. The pumps were started at once but the water rose in spite of all efforts and the weather got made up my mind to send off the chief officer worse, a heavy squall beginning to blow. I and eight men in one of the life-boats. They left me on Friday, the 25th, at 7 a.m., and arrived in Labuan on Sunday, the 27th, at 6 a.m. I tried again to get the steamer off the reef, but was unable to do so. water was rising in the after hold and engine-room also but by hard pumping we managed to keep afloat. The sea began to rise and there were ugly breakers. Bit by bit the speed ahead I managed to get her off. vessel swung round and then by going full I at once investigated affairs, there was water in both holds-the fier one was half full, the engine-room had water in it but not enough to prevent the engines being worked. The best thing to do, as it appeared to me, was to try and make Baram Point. We had steamed some 40 miles, when I discovered that the after- and ceased to work, The stamer had a bad ho'd was full of water. The engines flooded
list to port. We got out the starboard life- boat, made what arrangements we could, and took on board all remaining bands. It was the Adelheid We stood by for about two about 9 p.m. on Friday, the 25th, when we left
hours and a half. The steamer then was on
end and the afterdeck was awash. In the life- boat was myself and ten men. We experienced a heavy sea and squalls, but at last arrived safely in Labuan on Sunday, 27th ult., at noon.
Immense twarms of locusts have appeared between Kiangyin and Chinkiang, doing great harm to the rice fields.