384
The Chief Justice-It is a question of law. Is this place a market overt?
The Attorney-General-It is a question of law arising out of important facis.
The Chief Justice-The proposition you put forward just now was that the Government might intervene on behalf of a foreign subject: would you exclude that right on behalf of a British subject,
The Attorney-General-No, my Lord, but it makes the position a more important one.
The Chief Justice-It would introduce grave difficulty and prejudice to the public if the Government might arbitrarily take up case in which private parties are concerned. It would be an interference with the administra- tion of justice which, I think, is certainly a question of publio order.
any
The Attorney-General-The question as to the position here of the Attorney-General
may be one of some difficulty if limited to the sense that he can only appear on behalf of the Crown. In an sotion pending pleadings have already been filed-the third party is the Building Authority and defendant, He is aned as the Hon. Mr. William Chatham, Building Authority. I have myself drafted the defence as Attorney-General,
The Chief Justice—It is the same question over again.
The Attorney-General-It would be just as well, when your Lordships are going to decide this point, that the Attorney-General should know in future what his position is going to be, because it will relieve me of a vast amount of additional work where the Crown is concerned in civil cases, where I may be asked to represent the Sanitary Board, or some other
board,
The Chief Justice-The S、nitary Board is a Government department.
I
The Attorney-General-Here is a case in point. This gentleman is the Building Authority, which, on turning to the Ordinance, we see is defined as follows:-"The Building Authority means the Director of Public Works, or such other person as the Govornor-in- Council may from time to time appoint." It is therefore open to the Government to appoint Mr. Jones, or any other person, to be the Building Authority.
The Chief Justice-It is a common practice suing a public officer, but there is a practice where the Attorney-General takes proceedings on behalf of the public, not on behalf of an, individual.
The Attorney-General-I should like to be permitted to say, regarding the profession, that the appeal is tantamount to an appeal in forma pauperis. I am merely 'saying this in order that my learned friends at the bar may understand my position in this matter. The Crown Solicitor represented the case in the summary' court, but as there were no fees in any event for the Counsel on the appeal the Government instructed the Attorney. General to appear. If the c188 was not taken up by the Government, the litigant would not be capable of instructing Counsel to appear.
The Chief Justice Do you say the Govern ment cannot be guilty of the offence of maintenance.
The Attorney-General-I am not going to say that. The Government is in the position of the King, and can do no wrong.
The Chief Justice-We have indicated our opinion during the argument, and I don't think it is necessary to do anything mors. With regard to the question as to whether the Court can take judicial cognizance of the point, we are quite satisfied that it can. I should have gone further and said it was a question of public order. It is the duty of the Court to see that ita organisation is properly observed, and all we oan my is that we don't think the Attorney- General has any locus standi in this case, and there can be no order on the motion.
The Attorney-General-Having regard to your Lorships' decision, the Governor will authorise the Government to instruct the Crown Solicitor to instruct Counsel to appese in the matter.
The Chief Justice-I don't know that the Crown Solicitor can sot. If the Attorney- General cannot, the Crown Solicitor cannot.
THE HONGKONG WEEKLY PRESS AND
been instructed. I would ask your Lordships to adjourn the appeal until the next day you sit, in order that I may prepare my argument to address to your Lordships. The Crown Solicitor has withdrawn from the case and now I am instructed by Messrs. Dennys and Bowley, who are employed by the Government to to take up this matter.
The Chief Justice-I think the time has gone by
Sir Henry Brkeley - You offered the appellant time in order that you migh ́s⚫ttle the question whether the Attorney-General could appear for him. If it was deo dad on the previous day that he was not to appear, there would have bema time for another
ounsel to have taken up the case.
The Puisne Judge - Do yon say that Mr. Bowley is instructed by the Government?
Sir Houry Berkeley-Mr. Bowley, a« Crown Solicitor, has withdrawn.
The Puisne Judge--Yon said he was in. structed by the Crown.
Sir Henry Berkeley-There is no doubt about your power to extend the time if you please to do so.
Messrs. Dnnys and Bowley appear for this man, and I am instructed by them. When the appeal comes on later, I will then inform your Lordships who it is that is paying the If it appears that the Crown is pay. ing, and you think they ought not, you can not. The Chief Justice-That must be according to our view.
expenses.
+
Sir Henry Berkeley-It seems to me that the question of expenses has nothing to do with the Court.
The Paisas Judge-You m ntioned it your.
self
Sir Henry Berkeley-It is nothing to do with you even if you know it.
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The Chief Justice-It so happens that it has been mentioned, therefore we can express an opinion on it.
The Attorney-General-If I may say so, and I think it right to mention it, it would be my last desire to prevent sny of my learned friends appearing in this Court.
Sir Henry Berkeley-I would ask your Lordships to extend the time, and if objection is taken, I will meet it, if I can.
The Chief Justice-We'll take it as the application made the other day. Your applica tion will be for leave to appeal. The case is remanded till Monday.
IN SUMMARY JURISDICTION.
BEFORE M A. G. WISE (PUISNE JUDGE).
WRONGFUL ARREST
Yeung Yan, barber of No. 45, Mosque Street, sued Li Moey, a confrère who carries on business in D'Aguilar Street, to recover the sum of $500 for wrongful imprisonment, Mr. R. Harding appeared for the plaintiff, and Mr. C. F. Dixon (of Messrs. Hastings and Hasting.) for the defendant.
Plaintiff told the Court the difendant caused
of s'ealing a razor stone and two deer horns. him to be arrested on November 14th on a charge The police arrested him, and took him to the Central Station.
His ordship-In the orthodox manner; by the queue?
Plaintiff-Yes. Proceeding, plaintiff said he was taken to the station, charged and looked up all night. In the morning he appeared before the magistrate sod was discharged. The razor stone he was charged with stelling, he bought some years ago, while the deer horns were leat to bi by a relative of his wife.
After hearing further evidence his Lordship awarded the plaintiff $100 damages, and costs.
Thursday, December 12th.
IN SUMMARY JURISDICTION.
BEFORE ME A. G. WISE (Puisna JUDGE).
CLAIM AGAINS↑ THE RAILWAY,
Action was brought by Wong Tani-fook, trading as the Wah Fung, against G. W. Ever aa resident engineer of the Kowloon-Canton Sir Henry Berkeley—I am instructed by 'Railway, and the Kowloon-Canton Railway Mesars. Dennys and Bowley to appear on this (British section) and Chang Kien-tong. The appeal on behalf of the appellant, and have just - plaintiff claimed a declaration that the sum of
[December 14, 1907.
#360 or thereabouts, due by the defendants under a contract dated March 15th and mad» between the defendants and the Wah Fung, was the property of the plaintiff. Further he sought an order for the payment over by the defendants of this sum. Mr. Otto Kong Sing appeared for the plaintiff, Mr. F. B. L. Bowley represented the Railway and Mr. F.X. d'Almada
• Castro appeared for the third defendant.
His Lordship-You are not going to dispute the amount paid in ? Cannot we eliminate Mr. Bowley ?
Io
They
Mr. Koug Sing—No, he's interested. aotion 933 Wong Tsui fook sund the third defendant for money Chung Kien-tong had received from the Railway under contract with the Wah Fang. This man signed the note for the plaintiff, and your Lordship declared that he was only the agent for the Wah Fang and the present plaintiff. After that setion. I wrote to the Railway and informed them of the order and judgment and asked them not to pay over the monies to Wong Kien-tong. replied that they knew nothing about it and would not take” instructions from ms, Theu this writ was issued on September 30th. At that time the first and second defendants must have known that the money paid into Court was dus sad owing, but they did not pay it into Court until the third defendant was served. I submit that, under section 58 of the Ordinance, I am entitled to costs against both defendants.
His Lordship-Do you, Mr. Almada, admit that you are the Wah Fung?
Mr. Almarts-I say my client is a partner. His Lordship—Do you know anything about the former decision ?
Mr. Almada-No.
His Lordship......Then you bad better look it up. I am not going back on myself. If I said he is not a partner that stands,
Mr. Almada--I would ask for an adjournment to consider my position.
Mr. Bowley-This writ is endorsed for a de- claration that the sum of $360 or thereabouts is due by the defendants under a contract dated March 6th, 1906, and made between the defend- ant company and the Wah Fune; and for an order for payment over to the defendants of the said sum, and costs of sotion. I have that contract here, which is signed by the Wah Fung, and is a contract for baking bricke at a certain price. When the writ was served on Mr. Eves he brought the contract to me and the final certificates showing that all monies due under it had been paid. Until yesterday I understood that that was the nosition of affire. Then I was informed by Mr. Eves that Mr. Almada's ollent, Chung Kien-tong, the man who signed the contract, claimed for certain other works outside the contract, so that these works, which were carried out after the flaıl certificate was signed, are outside the contrast. On finding there was a sum of $23) due to the Wah Fung for extra work, I immediately paid the money into Court.
His Lordship-I don't think I need trouble list. you further, I will put the case in to-morrow's
Mr. Bowley-Mr. Valpy has come in connec- tion with this oss at great inconvenienos to himself and to the d-triment of the Railway works. There are also several olerks here, and I would ask that, if their evidence is to be taken, it be taken to-day.
His Lordship-I don't see that it is needed. Mr. Bowley-The Railway Company and Mr. Even are not a party to the previous setion in any way at all. The money was paid and the final certificates signed long before the action was brought. When he received the last letter, Mr. Eves understood that there was no money due.
His Lordship-They apparently want to get some costs out of you.
Mr. Kong Sing-I think I am sutitled to them, and I would ask to be paid over the money in Court
Mr. Almada-I object to that.
His Lordship No, no. I am not going to allow the money out of Court. It is very âloi and safe where it is.
The case was put in to-day's list.
A DOUBTFUL DOCUMENT,
Tsung Ut, otherwise Treung Ut-wo, sued Tasang Fong-chan to recover 3625 dus on an undertaking made on December 16th.