Monday
HONGKONG TELEGRAPH
December 19, 1938.
JUDGMENT FOR H.K. JOCKEY CLUB Ask him what he'd like from Jury Assesses One-Cent Damage If Appeal Is Successful
Judge's Ruling In Libel Action
Two
WO LEGAL RULINGS BY MR. JUSTICE LINDSELL ENDED THE ACTION FOR LIBEL BROUGHT BY MR. T. H. G. BRAYFIELD, WELL-KNOWN TAIPAN PONY - OWNER, AGAINST THE HONGKONG JOCKEY CLUB IN FAVOUR OF THE DEFENDANTS.
Judgnient was entered for the Jockey Club, with
costa.
Mr. Justice Lindsell held that the posting of Mr. Brayfield's name at the Jockey Club was a privileged occasion and found that there was not sufficient evidence of malice to go to the jury.
On the assumption that Hia to take, In such circumstances, was to Honour's findings may be at-take action in the Summary Court tacked in the Appeal Court, the land recover the money.
Jury was asked to find whether COULD SELL. MEMBER'S GEAR the plaintiff did or did not incur
Continuing, Counsel submitted that the liability.
the account was unpaid, but why After a retirement of half-an-į was unpaid did not alter in the hour, they found that plaintiffslightest degree the construction of did not owe the money, and Arlete 78, the whole object of which
was that members might awarded him damages of one
posted. It had been laid down in the cent.
stables bye-laws, that the Club
MR. T. H. G. BRAYFIELD
person owing money to the Club and no explanation of why he dit Day was forthcoming, then he was defaulter.
Mr. Brayfield claimed unlanited might sell Mr. Brayfield's gear, and Article would be that if there was damages from the Hongkong duckeyif that could be done then why in Club for posting him as a defaulter the world could not the Stewards In respect of a sum of $0.10 due for post him up? The reason why the exces fodder consumed by ls Becount was unpaid did not matter ponien Shipmaster sind Salvage at all under Uni Article, Master-which he disputed. The Mr. Macnamara Interrupted and defendants claimed justification.
The Special Jury comprised Messm. account was disputed
said that his point was that as the Fleming (Foreman), I. M. Melay, longer unpaid. Champkin, T. B. Wilson, Lo Yuk-
J.
G.
11
was 30
not be
the
money was due and the presumption, it was desirous for the Jury to de- Fin Inw, must be that they believed elde whether or not the money 'was
in fact owing.
for
"The ons lo disprove this was on the plaintiff and it could be sald
Referring to the question of here that the Stewards went damages should the Jury find there their information to the trainer, the was libel, Comsel said that no sane proper source even in the opinion of man in the Court belleved for 1 the plaintiff. Once the occasion was moment that, as a result of this un- ruled to be privileged, then the onus happy dispute, Mr. Rrayfield had
suffered was entirely on the plaintiff.
ony defamation to Jula character or reputation,
SLUR ON MAN'S CHARACTER
It was generally known that Mr.
Mr. Macnamara said the anxiety Brayfield was a great authority on of the Stewards to recover the sunsalvage and was still held in. ligh
of $0.10 made them overlook the slur esteem in insurance circies.
on a man's character which was cast by posting his name as a defaulter.
A defaulter was a dishonest man) and they knew Mr. Bray Reld was not a dishonest man.
CONGRATULATED ON WIN He was, in everywhere on his win last Saturday, fact, cungratulated had remained a member of the Club, and had attended every race meeting. In short, he had not even suffered five-cent damages,
expenses.
A wet day may remind him of the advantage of
a
was
The indirect motive which offord ed the malico in this case was that the Stewards not only interided to amx this libel on Mr. Brayfield by The truth was that he had chosen posting him but they intended also this way of bringing his grievance (o free him out of the Club to the Court instead of adopting, an if he did not pay-regardless of other and easier way, with much less whether he owed the money or not. Mr. Pearce had said that so far as he knew, plaintiff was neting honestly Mr. Brayfied should have been sued, Mr. Macnamara had stated that in disputing the claim.
There was in the Stewards' action, sauce for the goose was sauce
but, in his submission, what submitted, sufflelent evidence the gander, for Mr. Brayfield could for of a gross, unreasoning prejudice for have done the same. the jury to say that they had abused a privileged occasion.
Counsel quoted a letter from Mr. M. T. Johnson, then Chairman of the Stewards, in which he said "We can not undertake to refer to each owner whose pony draws pound or two of extra forage." That showed a state of mind, he submitted.
Counsel also quoted from another Steward (revealed by Mr. Potter later to be Sir Vandeleur Grayburn) should not be paid and less reason #T see no reason why the charge for Mr. Brayfield to worry us in this If, however, there was an explana stupid manner. If he does not pay,
he should be turned out of the Club lon be it good or bad-and that was for the court to decide to-day-then the Stewards action was outside the
SUGGESTION RESENTED Interpretation of the Article because Mr. Potter, replying, said that this diction of a Court of law in deciding the part of the Stewards was never they were trespassing on the juris-new question of improper motive on themselves whether a man was de put to Mr. Pearce. He resented the foulter or not.
C.
Mr. Potter replied that there was no question of dispute to long, the tong. I. I. Geare and L. Dunbar,
Mr. Eldon Potter, R.C., and Mr. H. Stewards were satisfied that the ar- G. Sheldon, Instructed by Air.
count had in fact not G. N. Tinson, of Messrs. Johnson, The Club's articles should
been paid. Stokes and Master, appeared for the construed in the way in which the Jockey Club. Mr. H. C. Macnamara, Stewards were subservient to instructed by Mr. G. S. liugh-Jones, members, and it was impossible of their own cusc of
Mest
rs, Wilkinson and Grist, re- that the Stewards
re" say
could πολ presented Mr. Drayfield.
take action under Article 79, Mr. Potter said his would be that the alleged libel was might be.
submission matter how unreasonable a member published on a privileged pccasion and that there was no evidence of
nu
Mr. Potter then went on to sub-
suggestion,
When asked to pay the $9,10, Mr. Brayfield could have paid under pro- text, and then brought an action In the money. the Summary.Court for the return of
PUBLICITY FOR CASE Continuing, Counsel said the Jury were not asked to give damages for the publicity, which had attached to plaintiff after the pubileation of the notice.
now know about it, but that was not Everyone in the Colony, admittedly, as a result of the publication of the notice but in
consequence of the Issue of the writ,
the
if Mr. Brayfield had puld money, Counsel click not suppose the notice. many people would have known of
contended that Mr. Brayfield's action Dealing with the evidence, Counsel
in checking and measuring the con- tainers on Thursday and Friday last week was for no other reason than to find out whether he had value for his money or not.
His Lortship: I thought it was JUDGES OF OWN CASE.
put to him. In fact, they were acting as judges
Mr. Macnamara: It has been our case all along.
Mr. Potter: Well, you That the Stewards acted in good
should put falth did not make the occasion prit to the witnesses. I put it to Your According to the system, Mr. Bray- they were acting under Article: 70. crossed your mind after hearing the for which he got 13 lbs. of free fod- vileged; the only point was whether Lordship that such a thought never field had only to pay $40 a month,
The plaintiff's ense was that they cross-examination of Mr., Pearce. der, and any excess was to be charged could be no were not and in that event there Counsel then referred to the to him. with
question of privilege. Stewards letters, mentioning Sir Evidence had been given by Tau- It was difficult, he said, to see how
deßnite evidence that It could be argued that this occasion
the Vandeleur Grayburn as the author of Ka-po, Mr. Brayfield's trainer, that plaintiff disputed the account, he the last one and saying that Sir the excess fodder was for his two was not privileged, but he would privilege to support hd, had a duty under that Article.
not be branded as a defaulter Wandeleur was merely giving his trainers, and this, Counsel contended, even go so far as to say that apart'
renson "a very cogent reason", as to was nothing but the truth. Tau had from Article 78 altogether, the Club to perform in the interests of mem- have the authority to interpret the a matter of fast, a non-payer's Mr. Brayneld about excess fodder on His Lordship: The Stewards what he thought should happen. As further stated that he had spoken to was entitled to take action againstbers and they were entitled to post Articles, does it not follow that they resignation from the club was auto-two occasions, and therefore he must
member whose account had πολ name up, as members had the right are the ultimate arthority for inter-mate according to the and that if
malice.
it that even assuming that Article 79 did not exist, the action taken quoted a number of cases on qualified the Stewards was privileged, and by the
Stewards, he said, had a
10
colla
I hold that there is
Articles.
believe
know whether any been paid or not.
have known of it. account had;
preting what is an unpaid account or
His
Lordship:
After asking the Jury to nol? There could be no argument on the
not suficient Tau's evidence, Mr. Potter concluded language of the Article because the sign, no. That is taking the juris- will still go to the jury?
Mr. Macnamara: In my submis- evidence of malice to go to the jury, by submitting that they should find duty was imposed on the Stewards.dletion of the Court away.
ps a fact that the $0.10 was due by Mr. Potter: No, my Lord. The Mr. Brayfield. His Lordship ruled flint the oc-point as to whether the $0.10 is owing
SHIFTED HIS GROUND casion was privileged.
or not goes to the jury. I t is Mr.
not be believed in view His Lordship: I hold there is not of the way he shifted his ground on sufficient evidence of malice to go many points whilst under cross- to the jury.
DOES NOT MATTER
His Lordship: Does it not make any difference when they regard their duty with elasticity?. We know ns a fact that they did not post every outstanding account automatically.
QUESTION OF MALICE Mr. Potter then argued question of malice. He sald:
on the
have
owing, there could be no libel at all. Tau could amara submitted that
examination.
been paid.
According to Article 83, any quen- tion as to the interpretation of the foregoing articles of Use Association had to be referred to the Stewards, whose decision shall be Anal. As they had agreed that this case fell within Article 70, the matter, he submitted, must end there.
With due respect, it was not for the Court to say whether their deci- ston was right or wrong, but even assuming that it was a matter for the Court, the action of the Stewards was
Mr. Potter: It does not matter, as
WAS MONEY OWING?
Mr. Brayfield could not have been or G in the Colony on February 5 privileged because Article 78 of the the sole question is whether or not rule on this, aye or nay. But there Mr. Potter, in his address to Association laid down that any mem- they had the power to do it. If you is a simple way out of this impasse Jury, said that even assuming that about excess fodder, as
the when Tau said he spoke to him ber whore account had not been paid i could prove misuse of a rule of this in order to let the case go to the the notice was a libel, the publica-were Saturday and Sunday, when Mr. days at the end of the month, after due kind, then you may argue on malice, jury as my friend, and myself, wish tion of it was a privileged notice, shall be posted in the Club but it does not remove privilege in it to go.
Occasion Brayfield was generally at Castle house as a defaulter and shall, pro any shape or form. I submit the
Your Lordship can give and was without malice.
Penk. facto, cease to be a member it, at the privileged occasion exists. It is the there is no malice, there would be fendants must be given. However, February 28 when Mr. Brayfield was your ruling now and if you say that,
for Therefore judgment the de- An regards the ather occasion on expiration of one week, the account Stewards and I don't care if their but assuming the case might go to case be brought to the Appeal Court,
un duty and only alternative of the still remained unpaid, unless the decision was right or wrong. Their the Appeal Court, Your Lordship
judgment and costs for defendants: in order to save confusion should the alleged to have said, "Jockey Club Stewards saw fit to order otherwise."
(Continued on Page 4.) It had been suggested, went
оп
duty
to submit that there is question of malico and Your Lordship has to
Counsel, that Article 79 did not apply it to do this thing is imposed on could let the ense go to the fury for
their deelsten on the fact of the $0.10
by Article 70, Mr. Macnamara, dealing with the to this case because the account was question of privilege said it was quite and furthermore, If they decided it
There was nothing, he submitted, true that the Stewards thought they
was not due, how much damages had power under Article 70 to post they would give.
disputed.
posted.
SOVIET FORCES MASS
the
NAVAL RACE IN EAST
Mr. Mocnamara: That is quite Soviet, Japan Fight for Supremacy
there
LONDON, Dec. 18. JAPAN AND SOVIET Russia are engaged in a secret battleship-building race, according to 1939 "Jane's Fighting Ships," the world's most authoritative naval handbook.
The
Are
in the Article to Induce one to take the plaintiff, but the question as to such a view, and the only question whether there was any other course fore the jury and Your Lordship's was whether the account had been of action open to them was never disruling on malice can be attacked in
air. We want the case to go paid or not.
The Club could only be faced with cussed at all. the possibility of libel when the The Stewards" power of interpreta. [the Appeal Court if necessary, Stewards had posted a member and ton of the Articles, however, would later found thai he had been wrongly only apply in cases where a dispute .NOT SUFFICIENT EVIDENCE
are and their interpretation was argument, said there was not a sein- Mr. Polter, proceeding with his Another remedy for the member called upon.
A reasonable interpretation of the
tilla of evidence of malice and, if It is declared that the Japanese | ton light cruisers, all of which there were,
it would not be sufficient are leading with four projected completed-Unlied Press. for this case, since the Appeal Court "super" batüestups, exceeding 40,000 BRITISH BATTLESHIPS demanded reasonable evidence and tons, two of which are reported to
handbook conarmed
that 'Britain will lay down two 40,000 tʊa not a scintilla only. What evidence have been inid down in 1938.
battleships in March, 1939, and it was not available to plainulis because it was all on the The handbook says that nations all also disclosed that the Spanish In- defendants' side.
over the world are undergoing the surgent navy may have received four Using their
Use Elrest haval race since. 1919, with destroyers and two subitarines from powers, Stewards merely went so fur on fajat least 25. battleships under con- Italy.
It stated that Russia was planning ay that Mr. Brayfield would be struction, or authorised. dealt with under Article 79. A LARGE NUMBER of Soviet troops are still concentrat.
The book says that Soviet Russia to build three 35,000 ton battleships, There was no suggestion from the claims to have the most formidable, mounting nine 16-inch guns. ed in the frontier area, declared Commandant Y. Yokoyama of Grass-examination of Mr. Pearce of submarine fleet, of which more than The handbook also
also said that Japan- the Japanese frontier guard which, participated in the recent for that there was ill will against Me. within easy striking distance of Jip fleet based at Viodivostock includes propriety, in the Sicwards' conduc: half is stationed at Vladivostock, ese reports indicate that the Soviet hostilities in the Changkufeng aren, upon his return home from Brayfield. Manchuria on Sunday.
anese waters.
70 submarines, more than 50 torpedo Menabook. CONTAINE minote | boats, and numerous patrol vessels of Arriving at Tsuruga from Mon-their use of modern armis is appar- inquiry and full consideration that world, and asserts that
It was only after the most carefull descriptions of the navies of the varous types. It's added, that many churler board a ferry-boat, the Armyently incomplete.
the United of the submarines in the Far East are officer admitted that the Soviet forces Commandant Yokoyama has been to post the nume,
the Stewards, unanimously, decided States naval buliding programme is believed to be mine-Jayers.. concentrated on the border are well transferred to the Army Arsenal In
slowly proceeding in tho heavier Th handbook,clatos to have equipped, adding, however, that Tokyo.--Domci,
Big Concentrations In Far East
I
TOKYO, Dec. 19.
In
Mr. Pearce, on the other hand, sald
It was never suggested that the calegories, although good. progress secured "independent evidence" to Sicwards did not believe that the has been made with the new 10,000 support its findings.--United Pres.
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246, NATHAN ROAD Phone 57341,
H.K. School-Children Drouth Hits Kansas
P. T. Competition
Topeka, Mas. S. D. Floro, federal meteorologisi, hay announced a new all-time recořá The third annual physical training for fall drouths had been sṛtablished competition the this The Cnly nacular Boys' Schools commenced ot part of the state in which there the Hongkong Football Club ground been a normal amount of rainfall is this morning. when 15 Hongkong|southwestern Konsas, which in yeaïs schools took part in the elimirating past haul been included in the "curt rounds,
bowl."
The Kowloon 'Schools will have their competition on the Kowloon Football Club ground to-morrow t 9 a.m. while the finals will take part
at 11 am.
His Excellency the Governor, Sir Geoffry Northcote, and the Hon. Mr. N. L. Smith will also be present.
Teams from the following schools took part this morning: Chùng We, Tai Tong Tuen MAE, Yeu Chi Fruit Dealers Guild, Confucian Aling, Yong Lam, Chi Keung, Kong Society, Taung Tein Association, Tak
Kiu Lingnam Braneb, Remon Catholic Mission, Kim Str, and the St. Louis Industrial School.
Noted
Actor Will Retire From Stage
Mej Lan-fang, noted Chinese netor
who and female impersonator, living a secluded Hic, in Hoogkong. will shortly retire altogether from stage life, necording to ñ report.
For over twenty years Mel har been the foremost professional en- tertainer before The Chinese foot- Bghts and his art of impersonation has had no peer in the history" of Chinese theatricals of the old school. Mel's last appearances were made early in last summer this year in Hongkong, when he attracted capacity houses
Mei is leading an extremely simple life in Hongkong, passing his Ume studying English and listening to radio programmes from all over the world. He is said to have left hu ̈voleo unpracticed during the part six
months,
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