In Hong Kong the necessity for a simple Process for the recovery of Small Debts soon became apparent, and a Summary Jurisdiction was conferred by Ordinance upon the Supreme Court in cases where the sum in dispute did not exceed five hundred dollars. The increase in the population and trade of the colony soon called for further Legislation in this direction, and Ordinance No. 7 of 1862 was passed, under which a separate Court of Summary Jurisdiction was established with a Common Law Jurisdiction up to five hundred dollars. The Judge of this Court is liable to be called upon by the Chief Justice to try or hear any causes or matters depending in the Supreme Court, subject in all cases to an appeal to the Chief Justice from any judgment or order he may pronounce.
It will be observed that the Judge of the Court of Summary Jurisdiction is not a Judge of the Supreme Court, but is at the beck and call of the Chief Justice, who can order him to transact his business for him whenever he pleases. This is a very unsatisfactory provision and adds to the expense of litigation, as the unsuccessful party can appeal to the Chief Justice, and is obliged to do so if he contemplates an appeal to the Privy Council.
The Court of Summary Jurisdiction is in fact similar to an English County Court without the Equity, Bankruptcy, Probate, and Admiralty Jurisdictions, which are possessed by the latter, and therefore unless the matter involved be purely the subject of an action at Common Law the litigants must still resort to the lengthy and costly process of the Supreme Court, however small may be the sum in dispute.
I am convinced that a Reform in the Constitution, Jurisdiction, and Procedure of the Supreme Court would be attended with the most beneficial results. The colony of Hong Kong has undergone a marked change in many respects during the last five years. Formerly the great trade of the place was in the hands of a few leading firms of great wealth. Since the commercial crisis of 1865, and the collapse of some of the most important mercantile houses, a great portion of the trade of the colony has become distributed among numerous small firms of all nationalities. Public Companies have been formed with limited liability, for a variety of purposes, such as Banking, Marine Insurance, Steam Navigation, Docks, Piers, Distilleries, Refineries, &c. There is an eager competition for business, and constant disputes arise which require adjustment by a simple, expeditious, and cheap process of Law, instead of the slow, ponderous, intricate, and expensive machinery of the Supreme Court, which is found so ill suited to the present rapid pace of commercial life in China, that no one dreams of venturing into Court, who can possibly settle his case by arbitration or compromise. The consequence has been that nearly all the Members of the local Bar have by degrees retired from the colony.
With regard to Admiralty Proceedings there is undoubtedly an urgent necessity for reform. The Supreme Court of Hong Kong exercises that Jurisdiction as a mere branch of the High Court of Admiralty, and the Colonial Government has no power to legislate on this subject. It is clear, however, that a Summary Jurisdiction in Admiralty for small causes is most urgently required, and has long been pressed upon the attention of the Government, owing to the cases of hardship which frequently arise; as, for instance, where a junk of small value is found derelict, or in the possession of pirates, the expense of obtaining its restoration to the owner is often as great as its value.
There are various other matters connected with the administration of the Law, to which I shall refer after dealing with the most important of all, namely, that which relates to the Civil Procedure and to the Constitution of the Supreme Court.
Firstly,--As regards Civil Procedure.
A simple, expeditious, and cheap system of Procedure are attractive words, and sound, perhaps, somewhat utopian. It must be remembered, however, that the colony of Hong Kong is behind the age in this respect, having regard to the success which has attended the introduction of the Civil Code of Procedure for India. The Indian Code is the ground work upon which the Rules of Her Majesty's Supreme Court for China and Japan were framed, and it is remarkable that the Report of the Judicature Commission recommends the adoption of substantially the same system in England.
I enclose copies, firstly, of the Indian Code of Civil Procedure; secondly, of the Rules of Her Majesty's Supreme Court for China and Japan; thirdly, of the first Report of the Judicature Commission; and fourthly, of a Draft Code of Procedure which I recently framed, and which is modelled on the Indian Code and the Rules of Her Majesty's Supreme Court for China and Japan. Owing to my sudden departure from the colony in September last, on account of illness, this draft is in a very crude state, and indeed is merely the first uncorrected proof from the printer; but it is intended to form a complete system of Practice and Procedure, both at Law and in Equity. The only subject which is omitted is that of Interpleader; but I have it in manuscript, and can supply it at any time if required.
The division of this Draft Code which is headed "Foreign Attachment," is one of considerable importance, and is intended as an amendment of the very imperfect Law of Foreign Attachment.
Enclosures
1. Memorandum on the Admiralty Jurisdiction
2. Indian Code of Civil Procedure
3. Rules of H.M. Supreme Court for China and Japan
4. First Report of the Judicature Commission
Draft Code of Civil Procedure for Hong Kong