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THE HONGKONG WEEKLY PRESS AND
joined as a party by order of the Court, and their Lordships knew that both appellants objected to his being made a party. In his judgment the Chief Justice said that the mortgage as between Li Po Kam and the plaintiff was still subsisting, and Counsel's client was entitled under that judgment to that decision. If the sale was a good one, he presumed it would have to be held good both as regarded Li Po Yung and Li Po Kam. Then his client's rights under the mortgage were gone, The appellants asked that the sale should be held good, and that the decision of the Chief Justice on that point should be reversed. That sale could not be hel good without affecting Li Po Kam's position under the judgment. What the appellants were in fact asking was that the sale should be held good as affecting Li Po Yung. but they were content that it should be held had as far as Li Po Kam went. That WILS all extraordinary position; an absolutely impossible position: therefore he was an interested party, and a very interested party under the judgment
approved on November 16th by Messrs Deacon, Look erand Deacon on behalf of Kwok Yik Ting. Mr. Slade submitted that it would be wrong for the Court of Appeal to differ from the conclusions of the learned judge who heard the case where his conclusion largely depended on the demeanour of the witnesses, heard before him. Taking the judgment on the facts, and the points he had put before the Court on the facts, he submitted the conclusion was irresisti- ble, that there was nothing more or less than a conspiracy between the manager of these two companies and Kwok Yik Ting to defraud on the one hand Li Po Yung, and on the other hand the two companies, 4SSI11- ing he had established that proposition, he submitted that in poiut of law Kwok, or rather | the syndicate, who were all tarred with the same brush, were not entitled to any sums that they had expended upon the property that they had wrongfully acquired from the two companies. The position taken up by the learned counsel who appeared for Kwok Yik Ting wasingenuous. His argument was "you should get a reconveyance from them, and that you were not entitled to have it unless you paid Kwok what he had expended on the property. In the circumstances of this case Li Po Yung and Po Kam did not want any conveyance from him at all.
He had to deal with the companies he had defrauded of their properties. It was inconceivable that the two defaulting managers, who had got this pro- perty, could ask to be paid anything for what they had done with the property. He was informed, to his great surprise, that in spite of their Lordships order, the appellants had de- clined to join Li Po Kam as a party.
Mr. Pollock-I am prepared to deal with that point.
Mr. Slade-So that as far as this case is concerned they are going on with Li Po Yung alone.
Mr. Pollock-A letter has been written to Li Po Kam's solicitors fully explaining the situation.
Mr. Calthrop-The appellants refused to join US, We cannot be made parties without notice being served on us. They say they won't make us respondents.
Mr. Pollock-Certainly not. We don't claim any relief against you. Your Lordships never made an order with regard to any notice of of motion being served 011 Li Po Kam. We understood yon came to the conclusion that he should be prescut.
The Chief Justice-We said he ought to be a party.
Mr. Pollock-I cannot be made to claim relief against him when I don't claim it. With reference to his being added as a party, it is a matter for the Registrar to put him on the record.
The Chief Justice-I thought we quite understood that nobody acquiesced in the order
we made.
Mr. Pollock-All I can do is to send to Li Po Kom the notice of moti n which has been served on Li Po Yung. We may be damaging our case enormously by not claiming relief against him, but we take the responsibility.
BE
The Chief Justice--We held, as far as I can remember, that Li Po Kam should be a respondent. The Registrar has taken it down, Decided that the appellants should make Li Po Kam a party Question of costs reserved. We still think that he ought to be a party, but whether there is any question of right involved can be considered hereafter.
After further argument the case was again adjourned.
Thursday, May 6th.
Mr Pollock stated that since the previous adjournment of the Court he had had an op- portunity of looking up cases cited, and did not propose to press his objection as to the appeal be. ing out of time. He also thought it would be con- venient if Li Po Yung's cross notice of motion was taken separately after the other notices of motion had been disposed of. It might result in a saving of costs..
Mr. Slade had no objection, and the Court concurred.
Mr. Calthrop thought it was time le arose to appear on behalf of his client, and to explain what seemed to him an important position in the matter. He understood that he had been
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[May 10, 1909.
ing the sale at an alleged undervalue, there was only one person interested, and that was Li Po Yung.
Mr. Slade There may be a large surplus, theu Li Po Kam is directly affected.
The Chief Justice-The point which Mr. Calthrop has made is that there may be other points outside the question of the sale which may affect them.
Mr. Pollock - My friend cannot roam over a large field not covered by our notice of appeal. Authorities I have quoted clearly lay down that one tenant in common can redeem.
After hearing further argument the hearing of the appeal was postponed sine die.
}
SERIOUS CHARGE AGAINST A
SOLDIER.
the
Atthe Magistracy on May 3rd Private Herbert Vanghan, R.M.L.I., H.M.S. Tamar, was charged with having stolen $94 the money of M. A. The Chief Justice-I am glad you see it now.
Razack. The case for the prosecution was that Mr. Calthrop-I saw it all along, but I was the complainant went to the Belle Vue Hotel quite content to sit here and hear what they had about 7 o'clock on Sunday night and was to say. Proceeding. Counsel said that 18
introduced by the proprietor to a man with regarded both appellants, who entered notices of whom he had a game of billiards. When this motion asking that the sale should be held good, was completed defendant came up and asked he was a necessary party. The appellants then complainant if he would mind playing with him. went on to say that assuming the Court did Complainant being agreeable, they had a game, not set the sale aside, still there should be an and when it was completed Razack went up to order against Li Po Yung, one of the mortga- where his jacket was hanging on a rack and gors, compelling him to redeem. Now, they put his hand in his pocket. To his surprise he were in fact asking the Court to make an order found that his purse, which had contained $94, affecting the equity of redemption, but at the was gone. He informed the proprietor who same time they only brought in one of the sent for Police Sergt. Pitt, and he, ou arrival mortgagors, Li Po Yung, and took no notice asked Razack if he suspected anybody. Com- whatever of the other mortgagor. On that it plainant replied that the only persons he was clear that no order could be made as to suspected were two gunners of the R. redemption unless all the necessary parties G.A. who had been walking round the were before the Court, and no person
table. Sergt. Pitt searched them without could be said to ไห more
he finding necessary.
and money,
then proceeded thought, than a mortgagor. When the speaker to look through the hotel, during which the came into the case on Monday afternoon he two soldiers and the defendant left the hotel. pointed out to their Lordships that the time had Sergt. Pitt and Mr. Razack went to Bay View expired within which the appellants were Police Station in order to make a report, and entitled to take proceedings by way of met the defendant and the two soldiers on the appeal as against Li Po Kam. He way.
His suspicious aroused, Sergt. Pitt asked might be made a party, but the order them to come into the Station, where the was peremptory: their Lordships could not soldiers were again searched without result. hear an appeal after six months had expired. During this proceeding defendant said he could except on special grounds. It had been held find the purse which he believed had been fime after time by Courts in England that a
taken by the two civilians who were mistake in law was no ground for extend in the hotel at the time. He added that he had ing time for appeal. Here, if he was right, some 80 in his pocket. Mr. Razack then asked and if Li Po Kam ought to have been the Sergeant to take the defendant into custody. made a party, it was the appellants who The sergeant searched him and found $65 in ought to have made him a respondent Hongkong notes, one Chinese five-dollar note, They had made a mistake as to their legal posi- two Hongkong dollars and $1.25 in silver. tion. and that was no ground for granting an Sergt Pitt then charged the defendant with the extension of time. Therefore, as far as Li Po theft and the latter made a statement to the Kam was concerned, their Lordships must dis-effect that he had received his last month's miss the appeal, even if the result was that they money amounting to $72 that morning, had to dismiss it as far as the other resp udent was concerned. There had been no application for special leave, and the appellants still con- tinued to say that Li Po Kam ought not to be a party, and refused to make him one.
The Puisne Judge-Your position is that as a mortgagor you get the benefit of the decision without being a party?
Mr. Calthrop-Yes.
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Defendant's statement as to receiving the money was confirmed by the production of the pay sheet from the Tamar.
His Worship said there was nothing against him except the remark as to finding the purse, which he thought was rather foolish. He was discharged.
HIGHWAY ROBBERY.
Mr. Pollock thought there was a
plain and simple answer to Mr. Calthrop's ingenions argument, and that was that the documents A highway robbery in Hongkong was report- given by the plaintiff companies to Li Po Kamed to the police on May 5th. The particulars only operated as his Lordship held in the Court supplied are to the effect that a cattle dealer below, and from which Li Po Kam was not in from Kennedy town and his two fokis were any way appealing. as the discharge of Li Po proceeding citywards at four o'clock yesterday Kam on the personal covenant in his mortgage. morning, and when near the Kwong Tung The Chief Justice held with regard to the Hotel they were stopped by three men who subject of the property that no document which represented themselves to be excise officers and was given by the plaintiff companies, or either demanded that the cattle dealer and his fokis of them, to Li Po Kam, affected the fact that should allow themselves to searched for opium. those properties had been pledged as security. They complied and the cattle dealer and his Therefore the position was that Li Po Kam's companions squatted on the ground. The first half share must be applied, and still remained named opened his bundle whereupon the robbers applicable, notwithstanding any documents struck the men over the heads with iron bars, given by the plaintiffs to Li Po kam to pay off and made off with the $700 which was in the whatever charges ought to be paid. It was absolutely immaterial to Li Po Kam whether the property was sold at an undervalue or not, because whatever deficiency there might be, the plaintiffs could not go against him. That was the ruling of the Chief Justice, against which nobody had brought an appeal. Regard-
cattle dealer's bundle.
In connection with the highway robbery committed at West Point the other morning in which three men set upon a cattle dealer and his fokis and stole $700, two men have been arrested and charged with complicity in the offence. They were remanded.
1
the hars
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