April 30, 1906.]
~ Mr. Sharp-Some of them might, but not all p of them.
His Lordship-A good many,
Mr. Sharp, continuing, said those witnesses or prisoners might have shown--although it | was not part of his Lordship's duty to consider what defence they might have shown, and he himself should certainly not consider the point-that the statements they had made were true. He had no doubt in fact they would have called farther evidence to prove their statements. He was not going to consider what defence they might have raised if they had been given the oppor. tunity. The point was that by the funda- mental principle of law they must be given that opportunity. He then cited a case in which five judges unanimously concurred in those findings, and went further and said that they had a right to call witnesses.
His Lordship Then that would make it inevitable to try the case again, which would occupy another two or three days, keeping the jury impanelled and witnesses in attendance.
Mr. Sharp-But surely your Lordship could conclude the first case-in fact, you had con. cluded the case and had given your decision, and the jury had done all that was required of them and they had no concern with the alleged perjury and only awaited their discharge. Mr. Sharp went on to quote several cases from the Privy Council and submitted that this Court could not over-ride decisions of that Council.
His Lordship-Bat surely my summing up indicated in what the perjury consisted when I
mentioned their statements about Wong Ka- cheung's being present at and addressing the meeting of creditors?
Mr. Sharp-But only one or two of the men speak English, even if one or two more under- stand it, and they could not follow your Lord- ship's summing up. And even if they could that would not fill the requirement of the law, which requires that the men be informed and given an opportunity to be heard in their own defence. As a matter of fact, only two or three of the men said they were present at the meet- ing, but your Lordship committed them all. The commitment was again bad, for the faw required that the warrant be signed by the judge committing, whereas this warrant was not signed by your Lorship, but by the Re- gistrar. That certainly is a technical point, but taking all the reasons given your Lordship I must ask you to make an order for the release of these men from gaol.
Mr. Pollock, continuing the argument after tiffin, submitted that it was necessary when a conviction under the summary powers of the Court was made and sentence passed it should be on a definite charge, because although there was no appeal under criminal laws everybody had a right to petition to the Governor or Governor in Council with reference to the con- viction. As the arrest and imprisonment of the seven men had been illegal and unjudicial he must ask his Lordship to order their immediate release.
His Lordship: Well, I would like to give a decision now, but I must consider the points further and will give my decision on Monday.
The Court then adjourned.
Monday, April 23rd.
IN ORIGINAL JURISDICTION.
Before Sie FRANCIS PIGGOTT (CHIEF JUSTICE).
A DISPUTED PROMISSOR NOTE.
CHÍNA OVERLAND TRADE REPORT.
The plaintiff, a building contractor, residing at 5, Old Bailey Street, said he had forme:ly been a partner in the Hung Yuen Bank, but retired in October last when he sold his share to the defendants, with whom he entered into an agreement. Under this be lent them $10,000 and received a promissory note from them. On the 28th of November last he received $400 to sccount. He had asked Tang Tait-man for the balance, and he promised to pay in the begin. ning of this year, but he had failed to do so.
Judgment was entered for plaintiff.
Fung Chun-yuen sued Tang Tsit-man and Woo Tuk, partners in the Hung Yuen Bank, together with the Hung Yuen Bank, of 167, Queen's Road Central, for $9,737, being prin- cipal and interest, due from defendants to plaintiff as makers of a promissory note for 810,000 dated 30th October, 1905, in favour of the plaintiff. Mr. E. H. Sharp, K.C., in- structed by Mr. Stevenson (of Messrs. Deacon, Looker and Deacon), appeared for the plaintiff. No appearance was entered by either of the defendants.
IN SUMMARY JURISDICTION.
BEFORE Mr. A. G. WISE (PUISNE JUDGE),
A DISPUTED ITEM.
The case in which Ma Chun and Li Chung sued the Kwong Ying Lung firm to recover the sum of $103.80 for work done and material supplied was resumed.
Mr. H. J. Gardiner (of Mr. O. D. Thomson's office) appeared for the plaintiffs, and Mr. R. Harding (of Messrs. Ewens, Harston and Harding) for the defendants.
The defence set up was that defendant had paid the account in kind, rice, but this was denied by plaintiff, and the accounts were referred to the Court shroff for a report.
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trial lasting six days. I sentenced to imprison- ment who had given evidence of nota alleged to have been committed by Wong Ka-oheung in bis alleged capacity as partner, eight witnesses oalled for the plaintiff in the issue, addressing to seven of them who were in Court when the verdict was given, the following words
14
These eight witnesses have to my mind been guilty of the most flagrant conspiracy to defraud the alleged partner Wong Ka-cheang. They have each been guilty of the most errupt perjury, and in virtue of the provisions of the law which empowers me to deal at once with anch cases. I commit each of them to prison for three months without hard labour." One of the eight, Wong Tse, was not in Court, and the bailiff has been unable to execute the warrant. He described himself as the managing partner of the Wong Wing Cheong firm in Hongkong since 1901. It is not stretching inference too far to say that he must then and there have gone into hiding and, abscouded. My action has been challenged and according to the argument, what seems só plain is în reality obscure what appears to be such a straightforward direction is in reality so full of complexity, so tedious, so devious, that I doubt whether, if the argument is sound, it would be possible to put the provision of the law as to summary punishment in force. A8 if to make everything corrrespond, a
His report having been presented, Mr. Harding said-I pointed out with refer.most complex method was adopted for bring. ence to a payment of over $600, part of which plaintiff alleged was rice, he could show that it was a cash transaction.
His Lordship According to the shroff's report when you paid $102.00 you only owed $60. Can you explain the over-payment ?
Mr. Harding-1 think I can explain that satisfactorily.
Mr. Sharp said that one of the defendants has not expected to be present. Only one of the defendants had entered an appearance, but he had absconded without filing a statement of defence under the order made by his Lordship.
Mr. Gardiner-I do not thik so.
If my friend is to call far her evidence, we have others to call.
Mr. Harding-There was another contract running at the same time with respect to the same premises between the same parties, and that is the reason why a rebate was not claimed. Mr. Gardiner-I think the books will show there was consideration for the over payment.
Defendant was called and stated that he over- paid $41.55.
His Lordship-Unless you can come to an arrangement I will have all the books translated and laid before me; but I do not want to pat you to so much expense. It is the fault of the defendant; he should not mix bis accounts up in that way.
Mr. Harding submitted that on the evidence the plaintiff bad not proved his case, as he admitted receiving rice, for which defendant had a receipt.
His Lordship gare judgment for plaintiff
with costs.
Thursday, April 24th.
IN BANKRUPTCY JURISDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
APPLICATION FOR THE RELEASE OF CHINESE PRISONERS.
ing the matter before me. There was first a motion for a habeas corpus to bring up the prisoners: and secondly a direct motion to the Court to release them from custody on certain grounds which I will deal with presently. It was admitted that everything that could be mid in favour of the liberation could be said on the motion, and that the habeas corpus was'not necessary to bringing the motion. Why the writ was moved for I fail to understand; but as it was applied for, and as I granted it in chambers, subjeol to the question being argued whether it was a proper application to make in the clrcum- stances, the point involved must be considered. I cannot read the case of ex parte Fernandez in any other way than as laying down in as clear a manner as possible that a writ
of
habeas corpus will not lie where the commitment has been by a superior Court of record. The principle of the decision is that a superior Court may adjudge a man guilty of contempt and imprison him without setting forth on the face of the warrant of commitment the grounds upon which its adjudication 'pro- ceeded; and as it is the validity of the legal process which is tested by habeas corpus, there is in the case of a commitment for contempt by a superior Court no ground for issuing the habeas corpus; therefore the writ was refused. That principle covers the grounds of the motion for the writ in this case; But it may be 'looked at from another point of view. Obviously from the very nature of the proceedings, they must be taken in a Court superior to that from which the commit- ment issued. It is manifestly inappropriate to take them in the Court from which the commitment in fact issued. It involves among other things the anomaly that in order to conform to the practice which requires an affidavit to be filed-for the obvious purpose of informing the superior Court what has happened in the inferior Court the solicitor filed an affidavit informing the Court of what it had itself done which it perfectly well knows without such information. I cannot follow the interpretation of the decision in Fernandez' case which the learned counsel endeavoured to put upon it. Undoubtedly there was an attempt to review the decision on the merits; and Mr. Bevill, the counsel for Fernandez, admitted that in order to sustain his motion he must show the warrant of com- mitment to be void. But the Court did not assent to the necessity of such ats. ad- mission: it simply pointed out that the ground on which he sought to establish the affirmative of that proposition-that the warrant did not set out the evidence or grounds upon which the learned Judge came to the conclusion be did→→ failed if the Court of Assize was a superior Court. The Court then enquired whether the Court of Assize was a superior Court, found that it was, and refused the writ. It is true that there does seem a tendency in the judgments of Wilies and Bylos JJ. to examine the merits of
Judgment in this application was given. His Lordship said:-By section 31 of Or. dinance 3 of 1873, it is provided "that if in any civil action it appears to the Court that any person examined as a witness upon oath or declaration has committed wilful and corrupt perjury," the Court may direct 8 prosecution for perjury to be forthwith in: stituted: "or where such perjury is committed by any person examined as a witness in open Court, it shall be lawful for the Court, instead of directing such prosecution to be instituted as aforesaid, either to commit such witness, as for a contempt of the Court, to prison for any term not exceeding three months, with or without hard labour, or to fine such witness in any sum not exceeding $100." Here is about as plain a set of words used for declaring a plain purpose as could well be imagined : and I asted on the summary powers conferred by the section at the close of the trial of an issue directed in the bankruptcy of the Lai Hing Bank. The issue was whether Wong Ka-cheung was a partner in the Bank, and it was tried before me with a common jury, the
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