December 14, 1907.)
CHINA OVERLAND TRADE REPORT.
The Attorney-General-I understand he wishes to surrender.
suggestions of forgery and fraud-and fraud as The Attorney-General-No, both have left a rule should be proved and not suggested- the Colony. I will ask your Lordships to they had thrown upon them the onus of prov-dismiss the appeal. ing that they were not partners in the Wing Ki The Puisne Judge-Perhaps this man wants | Cheong, and they would proceed to do so, lest to go on. in omitting to do so they should be prejudiced in the eyes of the Court. The partnership in the Wing Ki Cheong was established originally, The second appellant said he did not wish to as the extract from the Reg'strar-General's proceed with the appeal. He could not get a books would show, by three persons. The wit-lawyer, as he hat no money. ness Pun Bik ohi, had nothing whatever to do The Attorney-General-I understand, my with the origination of the firm. This would Lord, he is prepared to take his sentence. be corroborated by the fact that his name was The Chief Justice-That has nothing to do not one of the three original ones given to the with as; so far as we are concerned the appeal Registrar-General.
His Lordship-But that is not a register of partners; it is a register of householders.
Bir Henry Berkeley-It is a register of householders, but householders are shopkeepers and masters of shops. They are required to give their names, trades and occupations. I put this in as uncorroborative evidence of our statement that the three men mentioned started the business.
His Lordship-It would be just as well to olear this point up. The section says house- holders.
Sir Henry Berkeley-I am aware of that. His Lordship-Householders generally means people who live in houses.
Sir Henry Berkley-I am not producing it as a register of partners; I am producing it only as evidence corroborating our statement that the Wing Ki Cheong was started by the three persons I have named.
His Lordship-Does it earry any weight? Sir Henry Berkeley-The fact that these men erried on business as druggists under the style of Wing Ki Cheong.
or
His Lordship-The definition of householder is the actual tenant or occupant, therefore, supposing a partnership contained seven sight, I shouldn't expect to find that number on the register. If Chan Mau-chi were partner, and resided next door, I should expect to find his name on the next door register.
Sir Henry Berkeley-I am not dealing with Chan Man-chi, but with Pun Sik-chi. Proceed ing, Counsel said that when his Lordship had heard the evidence he would have no doubt that. the transactions were absolutely above board and in good faith. There was a suggestion that the partnership book was forged, or fraud was attached to it. He would call as a witness the man who made the conditions in that book, and he would tell the Court why he did it and when he did it. They had been put in a most false and unfair position by evidence being offered to the Court, which no doubt the Court was open to receive. Letters said to be written by two other partners were put in. In these, vague mention was made of the name of Chan Mau-obi. The persons who wrote those letters had not been called, when they might have been.
Evidence was called, and the case adjourned.
Wednesday, December 11th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
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is dismissed.
The Attorney-General-I would ask your Lordships to confirm the Magistrate's convio. tion, and to issue a warrant for the arrest of the first and third defendants, and to estreat their recognizances,
The Chief Justice- I don't know whether we can issue a warrant.
The Attorney-General-A bench warrant. The Chief Justice-I think you can take
your own course,
The Attorney-General-Your Lordships will order the recognizances to be estreated ?
The Chief Justice-Yes.
The Attorney-General-With regard to the recognizance of this man, who appears on $500, strictly speaking he should forfeit it by not prosecuting the appeal, but think it will be perfectly just and fair if the amount is paid back to his surely,
The Court agreed, and dismissed the appeal with costs.
COURT AND GOVERNOR.
The Attorney-General, who was instructed by Mr. F. B. L. Bowley, Crown Solicitor, renewed bis ex parte application for leave to appeal from the decision of Mr. H. H. J. Gompertz, Acting Puise Judge, which was delivered on Novem- ber 26th in the summary action between Ip Tenog-oin and Kwong Tee-king. The applica
ion was made on the ground that the judgment was erroneous in point of law and fact in find- ing that the sale of the junk was a sale of goods in market overt within the meaning of the Sale of Goods Ordinance, 1896.
The Attorney-General-I have been unable in this case to discover any direct preceden ou the subject, but I should like to ask your Lord- ships in the first place whether you are of opinion that the Court has power to take oognis. ance of the Attorney-General's locus standi in the Court. I submit that it is not a question which the Cour', on its own initiative," should take cognizance of. I submit that the Court cannot question the Attorney-General's right to appear for a private suitor.
The Puisne Judge-You are not appearing for the Crown.
The Attorney-General-I am aware of that. The Puisne Judge-Who are you appearing for, the appellant or the Crown?
The Attorney General-The appellant, by instructions of the Governor, and there is no reason why the Attorney-General should not appear in this Court Under Ordinance No. 1 of 1871 the Attorney-General's position is expressly exempted in the sense that he is not bound to be admitted as a member of the bar.
'The Chief Justice-As Attorney-Genersi. The Attorney-General-That Ordinance was passed in 1871, a time when the Attorney. General had the right of private practice.
The Chief Justice-It is merely a question of the Attorney-General's appointment by the Government. The Government do not now allow him to praction privately
APPEAL AGAINST A MAGISTRATE'S DECISION. An application came before the Court for rehearing of charges preferred against Young Chuk-po, Ng Tan and Ho Tak. The appellants were charged before Mr. E. B. Hallifax, resident magistrate at Taipo, with the larceny of six boxes of blasting gelatine, the property of the Kowloon-Canton Railway. There were also two other obarges against them, and on the evidence taken before him the magistrate ¦ sentenced each of the defendants to terms of he Chief Justice-If you put it in that way three months, one month, and four months we should first have to see the document emanat- imprisonment.
ing from the overnor, and then question the The appellants in the case were called, but | Governor's right to grant you permission to only one was present.
appear in a private suit,
The Attorney-General-It is a question for the Governor and not for the Court. The Governor might say the Attorney-General should appear for A or B, or he might not.
Hon. Mr. W. Bees Daries, Attorney-Genera', The Attorney-General-The Attorney-Ge- stated that be was instructed two of the three | neral would not appear for the Government sppellants had absconded. The abscondere unirm he noted on the instructions of the were the first and third, who had entered into ↑ Government. The point might be raised by recognizances in the sum of $750 each. The any of the parties concerned on the appeal, defendant who appeared had entered into a bat it is not a question which should ari:e from recognisance in the sum of $500,
the Court on its own initiation.
The Puiano Judge-One man is in jail, isn't │The Chief Justics The position might be this: Suppose we gave you leave to appeal and
he?
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the other side took the point. The appeal would be dismissed, but how about the costs?
The Attorney General--That might be so, or it might not. The fact of your Lordships taking the objection in the first place would certainly instigate the parties concerned to raise that objection. I may state at once, as I ssid on the last hearing, that the case was taken up by the Government in the public interest, I should like, if I may, just to state my position in the matter. It is true the plaintiff is the nominal appellant, but I submit there is nothing to prevent the Attorney- General appearing on the instructions of the Government. What constitutes the case of public interest? The junk in respect of which the appeal was brought was pirated and plundered on the high seas off the coast of China, and was brought to Hongkong and sold here. It belonged to a Chinese subject, and the fact of the owner being a native of China and not of the Colony, is a reason for th friendly intervention of the neighbouring country. The circumstances of the case may constitute a premium on piracy. The goods of a Chinese subject have been made the subject of an action in the King's Courts, and the Government is entitled, by the Law Offoer, to intervene. That is, generally speaking, the first. point which makes the case one of public interest There is also a very important extension of the doctrine of market overts in the judgment of the learned judge. My Lords, my learned friend Sir Hoary Berkeley, when Attorney-General, appeared in the case of the junk “Tung Ou Tai against an American Government vessel, tried before your Lordships. In that case he appeared filing an information on behalf of the King, also for the Government of the United States of America and the defendant in the action.
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The Chief Justion-I don't think he appeare i for the United States.
The Attorney-General-Your Lordship in giving judgment in that case said the Attorney- General moved on behalf of the Crown, at the instance of the Government of the United States.
The Chief Justice-At the instance.
The Attorney-General-At the end of the CASE WAS written solicitor for the Crown, the Government of the United States of Americs
and the defendant. And there are various other osses as the case of the Constitution, which was cited in the case to which I referred.
The Chief Justice-I may say that in that caso I did not go very particularly into the procedure, but I assume the procedure was warranted by the Constitution. In the case of the Constitution a warrant was issued and the Admiralty Judge ordered a copy of the proceed- ings to be served on the Treasurer and the Foreiga Government, while the Attorney - General moved, on behalf of the decretary of State for Foreign Affairs and the Foreign Government that the civil community be represented. Then it was alleged that the Crown had a right to sat aside these warrants in Admiralty,
Court adopted it, therefore I did not go into the question at any length, but the Attorney- General did not appear for tue Foreign Govern- ment at all.
and
the
The ttorney-General-The Admiralty ad- vocate appeared on behalf of His Majesty's Government.
The Chief Justice-If you look further on you will nos that somebody also appeared on behalf of the American Government.
The Attorney General-There is, of course, a great distinction between these disos. Iu that case the Admiralty advocate appeared on behalf of the Government, but that is a cam where the King intervened to prevent an aban› of the procem in his Court. This case in different. I will pot it this way. The Govern- ment intervenes on behalf of a foreign subject who seeks to obtain a remedy for a griurkaon committed on the high seas, and in respect of which this Government is interested in the public welfare.
The Puisne Judge -D› you mean to say that you want us to find for the plaɛatiff; to apset the decision in order to indemnify the plaintiff for baring his junk pirated?
The Chief Justios -I don't see how piracy comes into the question at all.
The Paisao Judge—It down not. It is outaide the question sitogether.