490
SUPREME COURT-
Monday, November 29th.
IN CRIMINAL JURISDICTION. -
BEFORE THE ACTING CHIEF JUSTICE (HON. MR. REES DAVIES).
BANKRUPTCY PROSECUTION,
The trial of Li Wei Tong, partner of the Lam Yick firm, which formerly did business at 304, Des Voeux Road, was continued. The accused was charged with offences under the Bankruptcy Ordinance, and pleaded not guilty.
The Acting Attorney-General (Hon. Mr. F. A. Hazeland), instructed by Mr. Dennys, conducted the prosecution, and Mr. C. G. Alabaster, instructed by Mr. Hinds (of Messrs. Brutton and Hett) appeared for the defence.
The following jury were empanelled: Messrs. H. A. Lammert, W. F. Gardner, A. J. Rocha, E. H. W. Reinbard, D. Jackson, G. H. Barker
and R. D. Harvie.
When the case for the Crown had closed, Mr. Alabaster raised certain points for bis
· Lordship's consideration, the principal one being as to whether the word "person," mentioned in section 82 of the Bankruptcy. Ordinance, referred to a firm.
His Lordship considered the question raised an important one, because, if Counsel's conten- tion was correct, no proceedings would lie in future as the law stood, where a receiving order was made against a firm. It would be necessary to have a final decision on that point, either, with a view to giving the bankruptcy offic als the future form a receiving order must take, or if necessary, amending the law. In an important commercial community such as this he thought the quest on should be decided, and he proposed to refer the point to the Full Court.
The Court rose until this morning.
Tuesday, November 30th.
Mr. Alabaster, in opening the case for the defence, said if the Crown's date as to the removal of the goods was correct, the removal took place after the firm had ceased to carry ou business. If the other date mentioned was correct, the transactions complained of took place while the firm was till carrying on its business, and it was for the Crown to satisfy the jury that the goods were not disposed of in the ordinary way of trade. How did the Crown prove their date? By producing a large number of coolies who all swore that the removal took place on the 16th, 17th and 18th April. Then it transpired that these coolies had had a little conference about it, and all had agreed that that would be the best date to give. The Crown were dissatisfied with their own witnesses, and put in some documentary evidence to confirm their story. And that documentary evidence consisted of forged documents; forged by a man who was in the firm and had signed the declaration of assets, but who had since absconded. That man cooked the books and tore out pages, therefore little value could be put on the date given by the Crown. Yet the learned Attorney General said he considered himself bound by his dates. He was willing to stand or fall by them, and Counsel submitted that he had already fallen. By the case for the prosecution it was perfectly clear that the godown was hired on March 17th, a month before the firm went bankrupt. Therefore the whole point that this could not be in the ordinary way of business, that it was after the bankruptcy, had failed. Then it came out, in the course of the case for the Crown, exactly what did happen concern- ing the removal of the goods, of which the prisoner was accused. Their great witness-the man who kept on forgetting and remembering said the man who ran away was in charge of the books, and the prisoner was in charge of the fokis. The only evidence on which the case for the prosecution was based was the evidence given by the defendant at his public examination. The public examination of a man was one of the few in which he was bound to answer questions that might afterwards be used against him. In this case, so far as he understood, there was no public examination until September. In or about that month the Official Receiver was told
[Decem ber 6, 1909.
THE HONGKONG WEEKLY PRESS AND
that the prisoner was a partner, and he was When Marican bought over the business from examined and signed his depositions. He then the Official Receiver it was not running well - explained that He had a small share in a large No, Marican and Allana told me not to take too business. Another man, who was called as a much notice of the business. Un November witness by the Crown, when questioned as to 3rd Marican and Alano called at the shop, and the partnership, swore he was an employee Marican said: "From this date you are my getting $12 a month. Counsel asked the jurors servant; serve me as faithfully as you served to consider whether a man dressed up in silks Allana." and satins was likely to be only an employee And he also said he would increase your getting $12 a month, a man who paid nearly sala from $300 to 400 rupees?—No, he two years' salary to buy a title. The date of said to $27. the removal was very important. If the Crown satisfied the jury that the goods were not removed in the ordinary course of business, then they must convict. But if the Crown did not satisfy them that the goods were not removed in the ordinary course of business, then they must acquit.
Evidence for the defence was then called, and after listening to the addresses of Counsel and his Lordship's directions, the jury retired.
Ten minutes later they returned into Court, and the foreman announced that they unani- mously found the prisoner not guilty on all
counts of the indictment.
The prisoner was then discharged.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR MR. H. H. J. GOMPERTZ (PUISNE JUDGE),
CLAIM FOR WAGES.
And when he said what I said he did say, Moosa was present? -No.
Is it not a fact that when Marican took over
the business he put Moosa there as manager P- No, Allana was manager.
Although he was a bankrupt? Yes. I don't know whether he was manager or had any interest in the shop, but he did what he liked. with it
!
You admit that from November 3rd you saw Moosa there constantly ?--Yes.
You kept the books up to March 6th P-I never kept the books; Moosa and Allana kept
them.
S. M. E. Allana, called and examined by Mr. Hett, said he was a bankrupt and formerly carried on the business of S. E. Allana and Co. Plaintiff was in the employment of that firm, and when witness went bankrupt he transferred his business to Marican. The business osten- sibly belonge to Marican now. Plaintiff was employed by S. E. Allana and Co., and after the transfer to Marican of that business, by the His wages were agreed at the rate defendant. of $27 a month. Moosa first began to look after the business on August 24th, this year. Wit- Leoness managed the shop from March 16th till
August 24th, 1909..
S. A. Marican was the defendant in an action in which Umer Jooseb claired $152, balance due for wages while in the employ of S. E. Allana and Co.
ا
Mr. F. Pagot Hett (of Messrs. Brutton and Hett) appeared for the plaintiff, and Mr. d' Imada e Castro (of Messrs. Goldring, Barlow and Morrell) represented the defendant.
Mr. Hett stated that the amount claimed was $152 for wages due. The defendant paid into Court on September 28th $107.27, being the amount he admitted to be due. It was not stated why that amount was paid in, or in respect of what portion of the claim.
Mr. Almada said the plaintiff did not give sufficient particulars in his writ. On Saturday he asked to be supplied with full particulars of the claim, with dates during the eleven months mentioned, and amounts received from time to He had agreed with Mr. Hinds (of time. Messrs. Brutton and Hett) that the case should stand over.
Mr. ett was not agreeable to the case stand- ing over.
Mr. Almada said he was quite prepared to go on as far as the plaintiff's case was concerned, but he would then ask for an adjournment.
His Lordship informed Mr. Almada that he could apply when the time came.
Mr. Hett said the plaintiff's case was that he was engaged by S. A. Marican in November, 1908, as a salesman in the shop of S. E. Allana and Co., which was purchased by Marican. Plaintiff was engaged on the same terms as his previous engagement with S. E. Allana and the Official Receiver.
His Lordship-He is claiming from that date?
Mr. Hett said the claim was from November Plaintiff would state that when he 3rd, 1908.
arrangements made
with Marican it was distinctly understood that he was to be engaged on the same terms as his previous engagement, and what the previous engagement was could be proved by the Official Receiver's books. He would call the plaintiff, and Allana, who was present when arrangements were made, and the latter would state what the plaintiff's wages were before.
Plaintiff was then called, and gave evidence on the lines of his solicitor's opening statement.
In cross-examination he said he originally came to the Colony on his own account, but later he was engaged by Allana in India on a dollar basis and without written agreement. From the date of his engagement he drew from time to time what he required for his expenses, but he always drew less than his salary.
And there is nothing in the books to indicate that you were paid $25 or more a month P-I don't know whether Allana kept an account or not.
Even when you kept the accounts there is nothing in the books to show what your salary was ?--I don't know.
When did the Official Receiver take his men out of the shop?-On March 16th.
On what date did you transfer to Marican ?— On November 2nd, 1908.
Cross-examined by Mr Almada : You are out on bail on a charge laid by the defendant against you?-Yes, a false charge.
That charge is still pending? - Yes. When did you first engage the plaintiff in this action ?--In January, 1907.
In India P -Here, at the rate of $25 a month. And there is nothing in your books to indicate what was his salary -No, but advances are
entered in the books.
And the plaintiff could draw what he liked from time to time so long as he did not exceed his salary ?--Yes, sometimes.
Sometimes he overdrew P--No. When you went bankrupt how many months' wages were due to the plaintiff? - Eight.
The Official Receiver was appointed manager of your business after your receiving order?
Yes.
And from the date of his taking over he was responsible for the payment of all salaries due ?
-He only paid two men he put there.
And the plaintiff was one of them ?-No. When Marican took over the "business and engaged the plaintiff, was not Moosa present?
No.
How are you so certain about that ?—I re- member it well.
And you did not remember then what salary was being paid by you to the plaintiff ?-$27 & month, and Marican agreed to pay him the sa
sum.
same
And nothing was said about rupees at all?— No.
Re-examined by Mr. Hett:
At the time your statement of affairs was made you were friendly with the defendant?—
Yes.
And at a subsequent date you managed the shop for Marican P-Yes.
How long ago was it since you first had differences with him?-We were friendly until the end of July of this year.
Did anyone dispute the plaintiff's rate of wages made in your statement of affairs at the time ?---No.
This closed the plaintiff's case.
Mr. Almada renewed his application for an adjournment, as one of a witnesses, Moosa, was in gaol, and he won have to have him produced on a writ of habeas corpus.
The defendant, whom Mr. Hett wished called, was not in Court, and his Lordship adjourned