Page
July 16, 1904.]
concerned in the Hung Tsun-fuk case have been dismissed. I have informed the Viceroy that the case may now be considered closed.--İ have.
&c..
C. M. CAMPBELL,
Acting Consul-General. (Enclosure to No. 185 of the 20th June, 1904. From Viceroy Ts'en to Mr. Campbell). Translation.
16th June, 1904. SIR.--With reference to the Hung Tsun-Fuk
CHINA OVERLAND TRADE REPORT.
defendant was engaged on the works oversee- ing men. Witness did not engage him. De. fendant said he WAS # Government man. Witness did not know whether or not he was a P.W.D. man. Defendant gave directions to witness's overseer of works as to how the work was to be done. Before the 17th of June he
case. I have the honour to acknowledge receipt arrelled until his face got red.
of your Despatch of the 5th instant stating that you had communicated the contents of my Despatch on the subject to the Government of Hongkong, who had replied that when all the terms of settlement mentioned in the Imperial į Edict had been duly carried out, the case might then be considered as definitely closed.
I was on the point of drafting a reply to you. when a communication on the subject came to hand from the Wai Wu Pu. The Wai Wu Pu therein informed me that, having received from the Grand Council a copy of the Imperial Edict issued in answer to the memorial presented by me detailing the circumstances of the case and asking for the punishment of those implicated. they forwarded the same. together with a copy of my original memorial to the British Minister, who had expressed his acknowledg ments for such a very satisfactory settlement.
When the Imperial Edict above referred to was telegraphed to me. I immediately sent copies to the various officials concerned for their guidance, as well as one to you for your in- formation. Since then Admiral Ho Chan-ching has been removed from his post; and the racancies caused by the dismissal of the other officers implicated have been filled by temporary substitutes. The terms of settlement have thus been carried out in full and I would therefore ask you to inform the Governor of Hongkong accordingly. I have, &c..
VII.
(Viceroy's Scal.)
(From the Acting Colonial Secretary to His Majesty's Consul-General, Canton.)
Colonial Secretary's Office. Hongkong. 25th June, 1904. SIR.I am directed to acknowledge the receipt of your letter of the 20th instapt enclosing copy of despatch from the Viceroy of the Two Kwangs stating that Admiral Ho had been removed from office and that the minor officials concerned in the Hung case had been dismissed. You added that you had informed the Viceroy that the case may now be considered closed.
On behalf of this Government, I am to thank you for the valuable assistance rendered by you in connection with this case.-I have, &c..
A. M. THOMSON, Act. Colonial Secretary.
SUPREME COURT.
Tuesday, 12th July.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR T. SERCOMBE SMITH (PUISNE JUDGE.)
ACTION FOR ALLEGED MALICIOUS
PROSECUTION.
Li Fook sued Yeung Po alias Yung Tsui San for $500 for alleged malicious prosecution. Mr. Otto Kong Sing. solicitor. appeared for the plaintiff. Defendant appeared in person.
Mr. Kong Sing stated that plaintiff was a contractor of 20 years' standing. On the in- formation of the defendant, he was arrested on 18th June last on a charge of bribery and was acquitted on the 22nd by the Magistrate.
Li Fook, the plaintiff, stated in his evidence that he was a builder at 34, High Street. Sang- kun. He had been in business there for 24 years. He had a contract at Happy Valley Cemetery just now. He got the contract in the latter part of May last and was working there on 17th June. The work was preparing stone to put up a wall on the hillside. The outside was to be of stone and the inside of concrete.
It was to be built of rough stone. The
45
the shop could be treated as taken back. If the landlord takes back the shops to rent them to other persons the said walls and doors need not be repaired. If the laws of the English · Government prohibit the working of the shop the said walls and doors must be replaced by the tenant. This was entered into to prevent future disputes.
had three or four quarrels with defendant. Ultimately, on the 17th, they had another quarrel Mr. Slade stated that at the time the agree- about the work. It was a violent quarrel; they ment Was entered into it was known He then that the Government were taking steps left the work. Defendant remained. On the to prohibit noisy trades, and for the purposes of following day he was arrested in his house. providing against loss the agreement was en- Defendant accompanied the English and Chin-tered into. Some time after the beginning of ese policemen who arrested him. Witness was last year the Crown Lessee received a notice taken to the Central Police Station and put in from the Colonial Secretary to the effect that call. He appeared at the Magistracy on the on the premises at Nos. 104 and 106. Station 20th and was remanded till the 22nd, when he Street. Yaumati, a noisy trade was being carried was acquitted. The charge against him was on without a licence from the Government. that he had offered $3 to the defendant. which was in contravention of the convention Witness did not offer him or any money.
under which the Crown Lease was issued. Un- There was no reason why defendant should have less such contravention was discontinued before laid this charge against him. The expenses the end of 1904 the Crown would take steps to incurred by him in his defence amounted to $60, re-enter the land. The Crown Lessee passed By the Court.-He got to the work at 11 a.m. the letter on to the appellant, who in turn Jon the 17th. He heard defendant saying to the handed it to the respondent, at the same time overseer that the stones should be broken up telling him that unless the trade was stopped to be used and all should be of the same size. the Government would cancel the lease for the Witness told him that the plan did not require land. Under thos circumstances Mr. Slade that, as it specified both big and small stones. submitted that it was for the tenant to replace Defendant said he did not know the work and the doors and walls which he had removed. He witness told him he did not know how it should submitted the decision of tho Puisne Judge be done. The quarrel lasted about half-an-hour.
wrong. whether in point of fact or in Mr. C. D. Melbourne. chief clerk at the point of law he could not say, but it seemed to Magistracy. produced and proved certain him that the action was one of those mixtures documents dealing with the case,
of law and fact. Sergeant Mortimer O'Sullivan gave evidence regarding the arrest of the plaintiff.
Yeung Po. the defendant, said he was a fore- man employed by the Public Works Depart- ment. He was engaged at Happy Valley Cemetery on 17th June. About 11 o'clock that day Li Fook came to him, and speaking in Chinese asked him to look wide" at the work, The wall that was being constructed was not according to the specification; there were large stones in it and he would not pass it.
He was about to leave the work at midday when Li Fook again aproached and asked him to look "wide at the work, at the same time giving him 8. Witness then made a complaint at the Public Works Office about what had occurred.
His Lordship said he did not consider that the plaintiff had made out any case at all, and he gave judgment for the defendant with
costs.
Wednesday. 13th July.
IN APPELLATE JURISDICTION.
BEFORE THEIR HONOURS SIR W. M. GooD
MAN (CHIEF JUSTICE) AND T. SERCOMBE SMITH (PUISNE JUDGE.)
FUNG KAM V. THE KWONG SANG LOONG AND WONG KWONG SAN.
Mr. M. W. Slade, barrister-at-law (instructed by Mr. H. W. Looker, of Messrs. Deacon, Looker and Deacon, solicitors). appeared on behalf of the appellant and applied for leave to appeal against the decision of Mr. Justice Sercombe Smith in Summary Action No 824 of 1904, heard on 7th July, on the grounds that such decision was erroueous in point of fact and that under the terms on which the respondent rented the premises situated at Nos. 104 and 106, Station Street. Yaumati, from the appellant the respondent was liable to make good to the appellant the cost of certain walls and doors removed by the respondents at the commencement of their tenancy.
|
The facts of the case were that the property had been leased to the appellant by the Crown lessee, and that the appellant had in turn let it to the respondents. The respondents carried on the trade of boilermaking, and for the purpose of their trade they obtained leave from the appellant to remove certain doors and walls in the two houses, with regard to which a special agreement was entered into as follows:- The Kwong Shang Lung Hing Ki has rented the whole premises of Nos. 104 and 106, Station Street, Yaumati. In future when the firm removes and discontinues to rent the shops all the upper and lower walls and doors must be replaced by them as they were originally before
WELN
The Chief Justice--What you appeal on is the meaning of the agreement. That is a point of law.
Mr. Slade said it was partly a question of law and partly of fact.
The Chief Justice pointed out that the plaintiff himself had stated that this was a monthly tenancy and had bean shown the letter from the Government and toll to go.
It wax quite clear that the laullord had to protect him- self and told these people to go because the Crown had given notice that the trade must be stopped. There was a stipulation in the lease that if the lessee carried on a noisy trade he must get a licence from the Crown or else the Government would re-enter. That was a special agreement. It was not the law. The Govern- ment wrote in January, 1904, stating that the premises were being used for a noisy trade with- out a licence from the Government and in con- travention of the covenant contained in the ́ Crown lease, and that unless such contravention ceased before 1st December, 1904, the Crown would re-enter upon the premises.
[1
Mr. Slade argued that this agreement was made in anticipation of the exact circumstances which took place. The term law" used in the agreement would mean an order of the English Government. When the landlord told the tenant that he had to go there was no specific time mentioned by him. There was no legal notice of the contravention at the end of Decem- ber. because it was given in the middle of the month. The tenant need not have gone at that date; there was no obligation upon him to go then.
The Chief Justice said he took the first section of the agreement to mean that if the tenant gave notice of removal he must repair the pre- mises to the extent to which he had altered the doors and walls. The second section was that if the landlord gave the tenant notice to quit the tenant need not do any repairs. The third section meant that if the law prevented the work being carried on the repairs must be done by the tenant. That might mean either that an Ordinance was passed prohibiting noisy trades an injunction was taken by some person against the trade being carried on.
or
Mr. Slade contended that that was putting upon the language of the agreement the most technical construction and obscuring the original meaning. An exact parallel would be for his Lordship to tell him that if he did not stop talking within so many minutes he would be sent to gaol. The contract was that if by any means the British Government took steps to stop the carrying out of a boiler maker's trade on these premises then the person who had carried out the trade and had done damage to the walls was the person who had to repair the damage he had done.