HONG KONG DAILY PRESS, FRIDAY, NOVEMBER 24, 1933.
LEGAL BATTLE ENDED NO MORATORIUM MANSLAUGHTER
|
Appeal Decision Announced
The Full Court of appeal yester- day delivered judgment I a litigation involving $130,000 which had been occupying the time of the Judges in the Supreme Court for three years.
The appeal was against a de- cision in Chamber of Sir Joseph Kemp in December last year.
The appellants were Hung Huca- ching, and the respondents were Chui Tak Loong Firm, of 28. Des Voeux Road West, and Hung Yu- fai. Hung was added as defendant to the original action.
Mr. Eldon Potter, K. C. and Mr. F. C. Jenkin were counsel for ap- pellant and were instructed by Mr. F. H. Loseby. Mr. H. G. Sheldon, instructed by Mr, F. E. Nash, re- presented the second respondent.
The appeal was dismissed.
The action was started in Octo-. ber, 1930, when Hung Huea-ching" claimed the return of $130,000 principal and interest of money deposit.
|
On November 12 a summons for judgment was taken out and Chul Tak Loong paid into court $89,000 without denying Hability.
Hung Yü-fal began in December an action for an injunction to restrain Hung Huea-ching from taking the money cut of court and this was granted but in that se tion judgment was eventually given for Hung the defendant, in May, 1932.
A "FORMAL” JUDGMENT, On November 19, 1932, a "form- al' judgment was drawn up in respect of the "judgment 01 November 23, 1930 and the added defendant took out, a summons for the setting aside of the formal judgment. Two days later Hung Huca-ching applied for payment out of court of the balance of the money and on December 30 the. Chief Justice, Sir Joseph Kemp gave judgment on the various sum- monses.
It was on this judgment that the appeal was taken.
|
exist in our Code. The amend
ment provided that where any sub- ject dealt with in the English Rules of Practice is provided for wholly or in part in the Code, the English Rules shall be deemed not to be in force in the Court. Be-
NECESSARY
Dr. Kotewall On
Chinese Banks Crisis
H
METROPOLITAN
CASE ENDS LAND CO., LTD.
Unanimous Verdict of
"Not Guilty"
Fourth Annual Gen.
Meeting
Extracts from the Minutes of
ing of Sharsbolders held at the
Both the men who were charged before the Chief Justice at the in connection with the run on
Criminal Session with the Man- the Chinese banks, the Hon. Dr. slaughter of a man who is describ-the Fourth Annual General Meet- ed as a thief, were discharged yoo offices of the Company. 21 Jinkee R. H. Kotewall, C.MG gave an terday, following a unanimous ver- interview to the Chinese Press yes-dict of Not Guilty from the Road. Shanghai... on. Thursday. terday, and in view of the import-
November 9th, 1833, at 4.30 pm. ance of the matter, he kindly sent us a translation of it which we give below:-
fore this amendment it had been not unusual to make a wide use of the English Rules of Practice. At the present time those rules may only be applied in matters upon which the Code of Civil Pro- cedure is wholly allent. On the matters raised in this appeal, namely, the creation and record of the judgments and orders of the Court, the Code makes full provision in Chapter XIV, sections | $45 to 358. It cannot, therefore, be❘ suggested that the procedure for entering judgments, pursuant to the summary procedure on Spec- ally Indorsed Writs, can be here in force to make good a lack of directions at this point in the Code. The relevant sections must therefore be read together and it is, not permitted to go outside them. The Court must favour the interpretation of section 23 which gets rid of the lacuna. "
In the argument for the Ap-action by Government, pellant It has been pointed out that when once judgment has been given or an order made, the Aung of a formal judgment or "order, without a direction of the Court, is an unnecessary step. »
"My Chinese colleagues and have been watching the present situation very carefully, and have been in touch with the Govern- ment. This morning, as repre- senting my Chinese colleagues and myself, I had an interview with His Excellency the Governor, the Hon. Colonial Secretary, the Hon. Secretary for Chinese Affairs and the Hon. Colonial Treasurer being also present, His Excellency in- formed me that he had been giving close attention to this important matter; that he had consulted leading banking interests; and that, in view of their readiness to reader all the assistance that lies in their power, he does not at pre- sent see any necessity for special
The argument for the Respon dents in support of the judgment appealed from, accepted almost entirely as correct the construc- tion of the Code for which the Appellant contended. His one an- xiety seemed to be that the min- ute of the 28th November, 1930, should be formally described as
order not as judgment. Apart from this the Respondents' Counsel Was content tast the order so made should be con- sidered effective from that date and that execution shoud flow from it.
common formal
The Chief Justice, Mr. J. R. It was a submission adopted in Wood, said: "The plaintiff/ap-
that the filing of the pellant here secks in this appeal
judgment was at most to re-instate the formal judgment merely declaratory and that its filed on the 17th November, 1932, reinstatement here would have no and to reverse that portion of the result in the relations between the judgment here appealed from parties. Nevertheless, the formal which declared that the minute judgment should have been set made by the judge and dated 18th aside not because it was defective November, 1930, was not aJudgin detail, but because the Plain- ment" but an "order."
if had obtained an order mere- For the Appellant it has been ly to which the code gave an ef- contended before
that the fect equivalent to that of a judg- minúte itself constitutes a finalment. The Chief Justice in the judgment as also does the minute of the Clerk of the Court made on the same day.
کنا
With this contention. I agree. The purpose of the provision" con- tained in section 340 would seem to be to avoid the necessity of fil- ing formal judgments and orders in every case.
The next step in the Appellant's argument is the contention that a minute prepared in proceedings under section 23 itself constitutes a judgment of the Court,
Further, it was argued that to hold such a minute not to be a judgment involves recognising the existence of 8 lacuna in our practice because no procedure is prescribed by the Code for.con- verting the minute into a judg-
ment.".
Court below had declared the minute to be an order and the appeal against his decision on this point should not succeed.
For myself I am unable to ad cept the construction on wi'ch the learned Counsel on both sides ap- pear to be agreed. The learned
I have been giving this matter most careful and earnest con sideration, and venture to share this view. There is plenty of money in the Colony, and I am sure that it will be available for those who have adequate securities, scribe to this view."
"Keep Their Head." Asked in regard to the attitude of the leading British banks as he knew it, Dr. Kotewall said that he was sure that the managers of those banks were fully alive to the situation, and had willingly given and would give all the belp in their power to applicants able to furnish reasonable security.
|
jury,
Present: Messrs. F. R. Bmith (Chairman), `R. Calder-Marshali C.B.5, M. Reader Harris, A. Mc- Lure. O. Okamoto, E. Sigaut, C. V. Starr, Yuson Yeo (Directors), and Shareholders representing in all
I will be remembered that it was alleged against the accused men that they were two of a number of men who assaulted an escaping this, who had stolen some terro from a feld, and, that the violent nature of the assault led to the | 156,102 shares. man's death. The Crown called a The Acting Secretary, having man who had claimed to be an eye read the Notice convening the witness of the assault,
Meeting and the Auditors' Report, the Chairman said:
Mr. J. A. Fraser, Assistant At torney General, prosecuted and the defence was conducted by Mr. Hin- | shing Lo.
Yesterday Mr. Lo called evidence in the course of which it was stated that the man who claimed to be an eye-witness of the assault bad at tempted to borrow money from the wife of the first accused and having failed, bore a grudge against him." In the course of his address to the jury, Mr. Lo declared that the issues for them to decide were two; namely that the two secused were present at the scene of the assault, and secondly that the two crown witness (who claimed to have been the assault) were speaking the truth. Mr. Lo contended that the real issue before the Jury Wag whether the deceased, whose death was caused by a raptured spleen, met his death as a result of the assault. He pointed out that the spleen of the dead man was very much enlarged, according to the medical evidence and it might well be that he would have died of that in any case.
|
The net profit, amounting to 8190,730.91, after allowance for depreciation, General Managers' commission and Buliding Reserve is considered quite satisfactory by your Directors "and General Managers, bearing in mind, the extraordinary difficult period covered by the accounts. Bustness conditions during the past twelve months have been just as difficult as the twelve previous months and we feel that the liquidated' pront shown in the accounts" "be- fore you emphasizes the inherent strength of our organization.
We are particularly pleased at the increase in rents and fees earned on Trusteeships. This sec- tion of our busines is most desit- able in that it forms a steady re- liable income, especially during periods when buying and selling operations are limited and the ne- gotiation of mortgages dificult. It is the aim of your Directors and General Managers to develop this Company to a position where the income from Rents and Trustee- ! ships will be sumclent to over the overhead of the Company and to provide the shareholders with, a reasonable return on their in-
vestment.
After Mr. Fraser had addressed the Jury, the Judge said that there were three possibilities as to the Our representatiye then sought cause of death. The first was the Dr. Kotewall's view on the subject possibility that the spleen was of a moratorium. Dr. Kolewall | broken in the course of the "gasault.
We desire to mention that a replied: I am emphatically of The second was that the injury considerable reduction has been the opinion which is shared by my might have been received when the made in overhead expenses and we. colleagues that in the present cir- man was running away and fell in-anticipate operating on a propor- cumstances a moratorium, even "a to a ditch and the third was that tionately lower figure during 1934. partial one, would be a great mis-something occurred after the man take." Dr. Kotewall advised the had been found by the Police lying public to keep their head, and as-in the street." With regard to the gured them that his colleagues and he would continue to watch the situation with unrelaxed vigilance, and to keep in close touch with the Government.
GREEN ISLAND
SCANDAL
Chief Justice seems to me to have Loss Of Dynamite In
indicated the correct view.
Government Depot
third possibility, his Lordship said that he very carefully watched the evidence of Constable 0354 and was satisfied that the man had nothing on his conscience, as to the death of the deceased. With regard to the prisoners, his. Lordship said that there was no suggestion in the sonduct (as revealed by the evi- dence) which showed that they had
a sense of guilt in their minds,
The jury retired for ten minutes and brought in a unanimous verdict of not guilty,
NO ONE TO BLAME
Purchases and Sales
Buying and selling of Real Estate was comparatively inactive during the first six months of our financial
There year.
was a alight: im-"
HIT provement during the last months and we hope that. It may be a definite sign of a. gradual return to normal trading condi- tions, Qur gross turnover for the year was better than the previous
period but still small in compari- son with a normal trading year.
Estates: This section of your business continues to increase
in a gratifying manner. We par- chased, during the year, the re- gistration control of a fairly large number of estates and this item is shown in the accounts as "Good- will" of Title Deed Investment.” One of the recommendations of your Directors and General Mana-
Jardine Sequel To Recent gera to-day is that this investment
Lorry Fatality
The decision given below seems me to be right. The minute of the 28th November, 1930 was an order. The formal judgment' was irregular for the three reasons al- Although it has been officially ready, given, namely,
Its wrong stated that -Messrs. date, its wrong title, and its wrong Matheson and Shewah Tomes áre statement of the amount of the the most heavily victimised by the judgment debt still owing on the Green Island Dynamite Scandal, date of filling.
the Harbour Master, Comdr. J. B. In the judgment appealed from, Newill, said in an interview with the formal judgment was further a "Daily Press" representative yes found to be bad because it did rotterday that the extent of the loss include a statement of the stay would not be kuwa until the in-killed as the result of a motor of execution which formed part of vestigations, which are now being the order on which it was found-carried out, are completed. ed. With this reason, with great Commander Newill added that as respect to the learned Chief far as he knew, none of the other Justice, I do not find myself in stocks have been tampered with, agreement. It seems to me that but that again is not definite, as a
It was conceded that the langu age of section 23 empowers the Court merely to allow a Plaintiff to proceed to Judgment and execu tion and that the general practice of the Court is to make au order in terms of the summons, which embodies the words of the section, and also that the use of the word "judgment" in the minute under. consideration is immaterial If the section does pot authorise" the judge to give judgment in the pro
Mr. Brackenbridge of Messrs. ceedings, the judge cannot assume
Jarding's said that they were over the power to give a judgment; and
a hundred cases of dynamite shot his decision must be interpreted
as a result of this latest piece of as a proceeding within the limits
slackness while Messrs. Shewan of the section. It was contended, however, that section 23 of the Chief Justice directed that an 1-204 casee of dynamite, there were In the Court below, the learned Tomus stated that in addition to Code, read together with section sue should be prepared and tried. ales 19 cases of detonators missing 349, intends Judgment should be It appears, that this direction is from their stock.
cess.
a stay of execution is in itself an check had to be made of over 600 order and operates apart from the cases of goods stored in the depot, judgment. The stay would ap- and this would necessarily entail a pear to run from the date of
certain amount of work. judgment.
With reference therefore to the matters argued for the Appellant on this appeal I find that he fails so far, dismissed with costa.
made
on
delivery order.
tances surrounding of deathe of The inquiry with the circums Chan Yin and Wing Kan who were lorry smash in Shaukiwan on Octu- ber 28, last, was concluded before
was
Mr. E. W. Hamilton at Central Magistracy yesterday when a ver- diet of accidental death Messrs. Paine (loreman), Lopes and turned by the jury which comprised Xavier,
The jury added a rider to the effect that section 121 of the traffic regulations should be made more stringent in its wording, enabling the Police not to allow any heavy vehicles to be used on the road until they had assured themselves as far as is possible that they are at a danger to the public or the occupanta:
be completely written off in a manner similar to that in which we dealt with the original good- wifi, purchase of Messrs. Davies and Brooke."
recommendations "the
Bubject to your approval of our Reserve this year will amount General
to $425,000.00 and the Reserve to $30,000.00.
Building
policy of conservative distribution
Dividend: In keeping with while maintaining the strength of the Company's resources, the Dir
0.60 per share which, at the pre- ectors recommend e dividend of
vailing rate of 715, gives equivalent distribution of a pro- ximately Chinese Standard 20.84 (eighty-four cents) per share.
an
AMAZING
VALUE
THE NEW LAWN MOWER
“SUFFOLK”
16*
CUTTING BLADE
$25.50
(BRITISH MADE)
George E. Smith, the Golf professional from Moray Golf Club" Lossiemouth, attends our Sports Dept. every day from Noon till 2 p.m. to select your clubs from our extensive range.
LANE, CRAWFORd, Ltd.
HARDWARE DEPT.
PIANOS.
FOR SALE OR HIRE
ANDERSON
PIANOS
TUNING,
REGULATING,
REPAIRING.
The Anderson Music Co., Ltd..
day was Bergeant Robert Molnnes pector of Shipwrights, of 5 Lock The
LOCAL ESTATES
Recent Tragedy Recalled
given forthwith upon a summons no longer of use to either party We were informed that the dis- The only witness called yester Mr. George Henry Payne, Ins- without necessity for further pro-and in my opinion this, order covery of the loss WILE
On this view the minute of should he set aside.
Monday, when, a
who stated that he examined the Road, who died under tragic cir the 28th November, 1930, was a
As regards the Appellant's ap- issued by Messrs. Showan Tomes found that one of the bolts that November 15, left local estate lorry following the accident and cumstances at Naval Hospital on Judgment and the formal judg-plication for the payment out of ment filed later was properly Court, to himself of money paid Greca Island. It is alleged that broken and that the vehicle had will has been granted to the was presented at the Depot in went through the spring was valued at $9,700. Probate of the dared, was properly intituled. in to the credit of this action, this Mr. Julian issued the 10 cases of and set out the proper sum to be application has not been persist-dynamite from the Jardine's stock apparently been in this condition widow, Mrs. Ethel Grace Payne. recovered under it.
ed in
It will be for sometime. This break he said
recalled and as Shewan Tomes had still a
that Mr. Again, it was admitted for the The Pulsne Judge Mr. R. E large number of cases in hand, they the U bolts that connect the spring Mr. Hambly in the Naval Dock- might have been caused by one of Payne was playing terinis against Appellant that the distinction be- Lindsell, concurred.
nade inquiries as to why the gods to the chasis being loose and this yard on the afternoon tween an order and a judgment
were not issued from their lot. does not rest upon the view taken
The loss was then discovered but it would, in his opinion, affect the inst, when, after the second point as to the title of the person in
MANCHUKUO AND
is alleged that Mr. Julian had left brakes. He claimed that with the in the second fame, Mr. Payn whose favour a judgment is given
by this time.
cable type of braking used on the complained of not feeling well and or an order is made to issue ex~
METEOROLOGY
Commander Nawill informed our lorry, play in the axle would not leaving the court sat ecution. And it was submitted,
representative that a letter had hinder sudden stopping but when bench nearby. He suddenly, col- that where leave to proceed to
Manchoukuo has decided to start been left behind by Mr. Angel the car was being pulled up gra- lapsed and upon aid being sum judgment and execution is grant construction work on the new Julian and this is in the hands of dually the prolonged strain might moned was taken to the surgery ed under section 23 and a minute meterorological stations at Chang- the Police. who are reluctant to
tend to shift the axle forward, thus where all attempts to resuscitate has been duly recorded, a judg~ Chun, Heihe and Hallar, with the divulge the contenta.
lessening the efficiency. In he him proved, fruitless. ment (though not necessarily a beginning of the thawing season
The stocks in the depot have opinion no one was to blame for the final judgment) then comes into early next year. Fifty or sixty such now been checked, with the result accident. existence and with it, a title to stations are to be established.
execution.
that a shortage of 320 cases uf dynamite and 28 case of detons-
of 15th
upon
Local estate valued at $20,00% was left by Pau Nam, merchant. of 24, Stubbs Roid, who died on
been granted to Yu Bai-ling, mer- chant.
Mr. Potter, for the Appellant, The Netherlands Japan Arbitrators has been disclosed. The total MR. J. H. MACOUN'S NEW April 24 "Prob.ate of the will has
further submitted that the lacuna tion Treaty, signed in. April, was value is about 828,000. in procedure noticed above is un-approved by both Houses of the Mr. W. H. Bailey, who was for- curable. Bince the amendment of Dutch Congress on November 15 merly a gunder at. Stonecutters in section 4 of the Code in 1911 no and will be formally ratlifted within charge of magazines, has been tem- supplemental procedure can be two weeks. The Tokyo Toreign porarily appointed successor to Mr. adopted from the English Rules Omice is now adjusting the treaty Angel Julian, who is reported miss- of Practice. Before that amend- and will submit it to the Privying from the depot at Green Island. ment these Rules could be used in Council shortly for approval and Mr. Bailey was formerly employed general to fill any gap found to ratification.
l'at the Government Civil Hospital.
APPOINTMENT
London, November, 17. Mr J. H. Macoun has taken charge of the Chinese Customs in London, replacing Mr. Stephenson who died suddenly on November 1.
Reuter,
#
Leung Hong-lal, of Wang Chuh.. Ki village, Nam Hoi District, died on January 9 leaving local estate valued at $14,800. · Letters of ad- ministration have been to Leung Hong-yee."
granted
Ice House Street
prescription
for sundown
Tel. 21822.
At sundown, after hard work or strennous `exercise, the most cooling and refreshing pre- scription is a long glass of White Horse Whisky with cold soda.
White Horse dispels fatigue and receives flagging energies. Its restorative powers and its value as an aid to digestion are well-known tó sportsmen both at homé and ́overseas.
WHITE HORSE
WHISKY
Sole Agais JARDINE, MATHESON & Cô... LTD.