150
Was
THE HONGKONG WEEKLY PRESS AND
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of them in respect of the cost of his portion of the reclamation. This plan and schedule were to be gazetted. This was duly done. The plan showed the equitable proportions' of the reclamation in front of Marine Lot 53a, respec- tively allotted to Yin Chow, the lesses of sections B and D, and to Chu Chuen, the lessee of the so-called 'remaining portion,' both being | frontagers, and, of course, it showed no portion allotted to the lessees of sections A and C, who were not frontagers. The schedule gave Yiu Chow 5,853 square feet and Chu Chuen 1,526 square feet. The system of apportioning to 'frontagers' only was carried out all through the scheme. Mr. Bruce Shepherd, the Land Officer, in his evidence stated-The general rule was to divide the reclamation according to the line of frontage, lineal frontage where un. divided and frontage sections where divided. In the Government scheme no portion of the reclamation was allotted to back" section owners of Marine Lots.' In my opinion that course was in accordance with the intention of the Ordinance. It has been acted upon all through, and to place any other interpretation upon the Qrdinance now, when, after fifteen years, the reclamation has been practically completed and 'frontagers' have paid their contributions and dealt with their interests in the portions allotted to them, would be most dis strous. In my opinion the plan and schedule allotted their respective equitable proportions' to Yiu Chow and Chu. Chuen quite properly, and I can. not help believing that if those gentlemen had been let alone they would have signed the agreements for their respective portions of reclamation in due course. Someone, however, in my opinion, misreading the Ordinance, put it into Chu Chuen's head that he was entitled to a much larger proportion than that allotted to him, because he held a considerable proportion of Marine Lot 53a, as a back section owner. Whether it was the English gentleman who wrote Chu Chuen's letters to the Colonial Secretary I do not know. The name of that gentleman mentioned in the course of the arguments, and it was clear to me that Chu Chnen's letters were not written by a Chinese. However that may be, the contention on the part of Chu Chuen was that the 'equitable proportion' which really ought to have been al- lotted to Yiu Chow was 'se small that he could not build upon it in conformity with the building agreement of the Reclamation Ordinance (see letter, December 20, 1889). There was evidence that Yiu Chow consulted any lawyer, and, fifteen years ago, Chinese in Hongkong were even less familiar with English law than they are now. Personally, I have no doubt that the real reason why Yiu Chow did not signify his acceptance in writing and enter into the agreement prepared for him was that he was afraid that those who asserted the claims of back section holders would involve him in litigation and trouble if he did. Mr. Stephens, the lessee of back sec. tion C, was a lawyer, and even Mr. Bruce Shepherd, the official who was acting as Land Officer for the Government, appears to me in this particular case, for some reason which I cannot understand. to have given some countenance to the claims of the back section holders of Marine Lot 53a, because in his evidence he says: What I decided in the matter was that the person entering into the agreement should guarantee either to assign an 'equitable proportion' of the said reclamation, or to pay an equivalent in money to the owners of the back sections.' Now, if I am right in my construction of the Ordinance, the back section holders had no claim whatever. I cannot, therefore, quite see why Chu Chuen was allowed to enter into Yiu Chow's agreement, as well as his own, except upon the understanding that before the Crown Leases came to be grant- ed, years afterwards, when the reclamation should be finished, the question of what was Yiu Chow's proper proportion, that is to say his 'equitable proportion of the whole reclamation in front of the whole of Marine Lot 53a, would have to be settled amicably or by the Court. In the letter of February 3, 1890, from the Colonial Secretary in response to a claim in respest of a back section, Chu Chuen was told "I am directed to inform you that your rights will be duly considered when the lenses to the reclaimed land are being prepared.' Chu Chuen had already been informed, by the letter of
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no
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tion.'
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reclamation.
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[August 27, 1904.
January 9, 1890, from the Colonial Secretary, in the Land Registry Offoe in respect of the that as a back section owner of Marine Lot lots or sections thereof fronting the Praya 68, he could not be allowed to sign a roadway along the line of the proposed
86 he would reclamation agreement, but
In his judgment in the Court not take no
for an answer, further con- below the Chief Justice construed the words sideration of the matter was referred to lots of land or sections thereof fronting the to mean undivided lots which the then distant future date when the actual | Praya roadway
fronted the Praya roadway, or sections which Crown Leases would be granted. It is un- doubtedly true that, in all the circumstances, fronted the Praya roadway, and rejected the Yiu Chow did not enter into the statutory agree. contention of the appellants that the words ment within the statutory three months from meant lots of land fronting the Praya roadway July 6, 1889 (the date of notification), required or sections of lots of land which front the Praya by the Ordinance. But it is also true that roadway antecedent to "which" being "lots of " sections." I concur in Chu Chuen only entered into the two agree-land" and not
Chief menta, namely his own and that into which Yiu the construction adopted by the
It follows that those persons Chow ought to have entered, on December 19, Justice.
sections, i.c., sections 1889, although the old date of October 5. 1889, who pwned back was in each case allowed to remain unaltered on not fronting the Praya roadway, were not the agreement. The Crown could, however. I entitled to share in the scheme propounded by presume, by its representative allow the agree- the Ordinance, and that so far as M. L. 53 A is ment to be entered into after the three months concerned only the owners of sections B under its general powers, if not under its statu- and D, and of the remaining portion could tory authority. I do not think the 'undertaking' participate in the reclamation in front of M. L. to assign an equitable proportion can fairly be 53 A. The terms of admission to the scheme construed as such proportion as 'I, Chu Chuen, were that the eligible Crown lessees, or their erroneously consider to be an equitable propor-assigns, should contribute towards the cost
It must mean such a proportion as a
of the works, and that the Governor would Court of Equity would, if appealed to, hold to grant Crown leases of such equitable propor- be an equitable proportion." It is clear that tion of the reclamation as might finally be
available. the Gov-rnment considered that Yiu Chow was
Those terms being settled, a plan showing in detail the portion of the proposed to be deemed a person who was willing to accept the portion allotted him on the plan, because reclamation assigned to lessees and a schedule in the Government Notification, No. 530, in the containing a list of such lessees and the ap- Hongkong Government Gazette of December proximate contribution required from each
a 1891.
List of Lessees who have 19,
were to be deposited at the Land Registry Pursuant to Section 7 (i) signified their acceptance of the portions Office (Sec. 7 (i). of land assigned to them. etc..
is etc.' the deposit of the plan was notified in the Gazette of the 6th July, 1889, and a copy of the given, and under the heading of 'Names of Crown Lessees or their assigns register-schedule was simultaneously published." There- ed on date of acceptance, the name of Yiu Chow is given as regards sections B and D of Marine Lot53a. In my opinion, if the matter had been brought for the decision of the Court in 1889, the Court would have held that Yiu Chow's equitable proportion of the whole reclamation in front of Marine Lot 53a was that portion allotted to him by the plan and schedule, and that Chu Chuen's equitable proportion was the other portion allotted to him by the plan and the schedule, in respect of what was called remaining portion of Marine Lot 53a. was admitted that the appellants stood in the place of Chu Chuen, their predecessor in title, and that the respondents stood in the place of Yiu Chow, their predecessor in title. I can see nothing affecting this case in the fact that, after this action was begun, the appellants were allowed to enter into a possessory agreement on giving a similar undertaking to that given by their predecessor, Chu Chuen, and on the whole I adhere to the judgment I gave in the Court below, and which went fully into the matter. On referring to my notes I see that the counsel for the appel- lants admitted in the Court below, while Mr. Sharp, K.C., the counsel for the plaintiffs, was opening his case,
&
It
upon it became necessary that the lessees who were desirous of entering into an agreement in the form of the schedule to the Ordinance should, within a period of two months from the 6th of July, 1889, signify in writing their accept- ance of the portions of land (ie., reclamation land) assigned to them on the plan deposited, and of their intention to enter into an agreement, Under these circumstances, Yin Chow who as owner of front sections B and D would have been entitled to his equitable proportion of the available reclamation in front of M. L. 53 A upon signing the agreement, refused, for reasons which need not be speculated upon, to enter into the agreement. Thereupon Chu Chuen, for reasons which it is difficult to understand, was permitted to sign the agreement in respect of the reclamation to M. L. 53 A, sections B and D. That agreement was nominally dated Oct. 5th 1889, and had attached to it a document which has been designated an "undertaking" through. out this action. In this state of affairs, the successors in title of Yin Chow brought 811 action against the successors in title 8 declaration of Chu Chuen asking for that they were entitled to such proportion (from front to back) of the whole of the reclamation 'that the plaintiffs were entitled to a portion of the extension. i.e. of the reclamation; and if so, I can only say it appears to me that they are entitled to the proportion the plan and schedule allotted to Yiu Chow. The appeal, therefore, must be dis- missed with costs.
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to Marine Lot 53 A as the frontage of their property, sections B and D of the said lot, upon the old Praya roadway (now known as Des Voeux Road) bears to the whole frontage of Marine Lot 53 A upon the said roadway. The Chief Justice decided that if the plaintiffs were willing to refund with The Puisne Judge said: In May 1889 the interest at 8 per cent. the $2,000 paid by Chu Praya Reclamation Ordinance, No. 16 of 1889, Chuen to Mr. M. J. D. Stephens and the money was passed to carry out a scheme for the reclam-contributed by Chu Chuen and the defendanta ation of the foreshore opposite the City of Vic- towards the cost of making the Prays he ought toria. At this date. Marine Lot 53 A, which | to decree that the Crown lease of the whole was affected by the Ordinance, stood divided disputed portion of the Reclamation ought to into five sections. A, B, C, D. and a remaining be granted (on payment of any further contri- portion. The owner of front sections B and Ďbution that might become due in final settle. was Yiu Chow, predecessor in title of the pre- sent respondents. The owner of back section A and of the remaining portion was Chu Chuen, predecessor in title of the present appellant. Back section C was owned by Mr. M. J. D. Stephens. The alleged reclamation rights belonging to this back section were later on bought by Chu Chuen from Mr. Stephens for $2,000 (see third paragraph of Chu Chuen's letter of 20th December, 1889), who, according to the proper construction of the Ordinance, were entitled to share in the scheme propounded by the Ordinance. According to the introductory portion of section 7 the persons so entitled were the Crown lessees or their assigns who, at the date of the commencement of the Ordinance, viz., May 10th, 1889, were registered
ment of the Praya Reclamation Accounts) to the plaintiffs; or if granted to the defendants, that the land must be held by them in trust for the plaintiffs. It is from that decision that this appeal lies. There are two questions raised on this appeal: (I.) Was Chu Chuen a trustee for Yiu Chow? (II.) If he was, of what was he trustee? By an agreement dated Oct. 5th, 1899, the Governor of Hongkong stipulated that upon the completion of a certain re- clamation and upon payment by Chu Chuen of certain sums, he (the Governor) would grant to Chu Chuen Crown lease of that portion of the reclamation delineated and coloured red upon a plan annexed to the agree- ment. In that agreement the name of "Yiu Chow is struck out, and the name Chú Chuen