THE HONGKONG TELEGRAPH. THURSDAY, JANUARY 6, 1949.
House Sale During Japanese OBJECTION IN
Occupation
JUDGMENT AND COSTS
FOR PLAINTIFF.
Judgment for plaintiff was given by the Chief Justice, Sir Leslie Gibson, in the Supreme Court this morning in an action for breach of warrant of title concerning a house in Kowloon during the Japanese occupation.
The plaintiff was Mrs Lee Yu-kee, of No. 3 Upper Lasear Row, and the defendant was Yau Siu- yuet, alias Yau Po-cheuk, of No. 54 Queen's Road Central, ground floor.
Mr H. G. Sheldon, KC, instructed by Mr G. S. Ford was for the plaintiff, while defendant was repre-
A. sented by Mr Percy Chen, instructed by Mr Arculli.
el
relection of
1325% dato and
Mr. Chen did not deal with the point in the course of his argument, but I think the date of repudiation is the proper date in cares where tho agreement fixes no date for com- pletion.
PWD LARCENY CASE DENIED
The agreement in als caso con- tains certain, provisions In connec- tion with matters to be transacted at the Japanese House Registration Office culminating in the require- ment that the purchaser had to complete within 7 days of the date on which he was notified by the vendor that a certificate of registru- tlon has been obtained. These pro- visions ceased, of course, to be capable of implementation after the re-occupation but I think the ngree- ment nevertheless continued in force as a binding agreement with no dute fixed for performance. Time might have been mado of the
Accused in the care are Kwok lative was not present, and he was essence of the agreement by notice Kwong, 47, foreman, nud Austin. objection to Counai's appileation on but there is no evidence that any Spary, 50, electrical Inspector, that ground. such notice was in fact given. There Cirnde 1, bo h of the Public Works Mr Hootan In reply said the fearn- is authority for taking the date of Department. They are charged and ed. Magistrate kent very careful repudiation in Hailsham, Vol.10 12 counts, 10. of largeny by "public" potes of the proezedings" in the p.120 mute (s) and the cases there servant, one of
court. Harris,, according to obtaining money by lower iled and refer particularly to the false pretences
from tie steward the notes, was called on the Blist case of York Glass Co. Ltd. v. Jubb,¦ of the Kowicon Bowling Green Club day, and those present in the Court 134 L. T. 35.
and one of
ris was called immediately after the of money, Mr Percy Chen, instructed by counsel was present as before.
mld-day adjournment ind defence C.A.S. Rues, is appearing for Kwok, by Mr Mir
An objection to Crown Counsel's application for leave to read the deposition of a' witness whe was absent from the Colony was made by the defence when the P.W.D. Larceny Case continued before Mr Justice Reynolds at the Criminal Sessions yester-. day.
The objection was over-ruled by his Lordship and relevant portions of the deposition were read to the Jury.
In calculating the amount to bohe Government "Piracy to defroud were also carefully recorded, Hinr-
awarded for loss of bargain, it is
The statement of claim disclosed the transaction) and also his loss of that in July. 1940, the defendant rent. In support of his claim, an represented, himself to be an agent architect gave evidence of the value necessary to decide upon the rate of land Spary is represented of one Choy Chuen-kam by virtue in October, 1947, and his estimate exchange for the purchase price (V.LL D'Alton, instructed by
to
of a Power of Attorney alleged have been made by Choy on May 16, 1945, and whereby the defendant as such agent war authorized to sell
of the rent lost and I accept his evidence.
Japanese Military Yen 150,000 Mr Sheldon has relied on the rate fixed by the Debtor and Creditor (Occu- Mr Sheldu (for the plaintiff) pation Period) Ordinance, 1048, for property at 315 Reclamation Street, relies metantially on the case of the month of July, 1945, in which the agreement for sale was signed Kowloon, registered In the Land Goodwin v. Francis 5 L.R.C.P. 295, Office as KII, No. 3892 as the proThat case is clear authority for the and amended his claim accordingly
proposition that, where A, purport to a claim for $19,400 for loss
act ing to JIS the
agent of bargain. Mr Chee did not oppose. Delivering Judgment, his Lordship
B. ente
enters into an
with this amendment
did And said;
for the sale to C
helong challenge to Cof
Mr Sheldon's argument
perly of Choy.
men
J
P. Griffiths. Appearing for the prosecution is Mr A. Hooton, Crown Counset, ngala'ed by Chlef Insp. Johnston, of the Special Branch.
The Jury empanelled comprises four
and three women, Mr Hooton applied to the Court Jos. for leave to rend the deposition of R. Harris, Monoger of Pacifle Air not
had left the Colony, by virtu" Maintenance, Kai Tak, who, he said,
In this action the plaintiff Lee Yu io B, then, if it subsequently that the rate fixed in the Ordinance Tee claims damages against the de-turns out that A was not authorised would be the appropriate rate to fendent You Si Yuet on the ground by B to enter into the agreement take. Nu evilence was led as to that the defendant warranted his y
and the treement is repudiated by the rate of exchange and, in the authority ns ngent and attorney of B, C is entitled to recover against Aabsence of it, I think that tha Chey Chuen-kam to sell a house No such damages for breach of war- rate
Axed in
Ordinance Kowloon 315 Reclamation Street,
ranty of authority be could ought to be accepted. I 20) (belonging to Choy Chuen Kam) to
recovered against I therefore of opinion that the the plaintiff, whereas in fact the de- if A had been duly muthorised by B, plaintiff's claim for $19,400 for loss fendant had no such authority.
and these damages may include for loss of borgain.
have
as
It is common ground that in May, 1945 (komt four months before the end of the Japanese vccupation), the Mr Chen (for the defendant) local sollei- | orgues frstly that at all material defendant consulted for, Mr Peter Sin, and handed him times. the plaintiff knew the defen- a power of attorney purporting to dant's power of attorney was not have been executed in China in the acceptable to the Japanese authori presence of the head of
the
of bargain succeeds.
CLAIM FOR RENT
Then on regards
for
ย
of
Section 20 of the Evidence Or-
inance 1800,
כיוצר
REQUEST GRANTED
Mr Chen and Mr D'Alton here asked the Court if they could love farther Instructions from their in- structing solicitors. The request was granted,
Continuing, Mr Hooton salt that with regard to Mr D'Alton's state- ment that there was no opportuntly to cross-examine, he referred to the Magistrate's certifiente which he rald was binding.
Dealing with the next point raised by Mr D'Alton, Crown Counsel wald the reason why no hint was given that Harris would not be available IMPORTANT WITNESS was because it was not known that he would not be available. With Objecting to the application, Mr
the D'Alton said that Harris was in the regard to the knowledge of
Police, naturally one had no control Colony
days before the A few present trial began. He submitted over a witness if he close to leave the Ordinance did not apply in the the Colony. He said he understood ease of a witness who had left the the Police did not know that Harris WOR leaving. It was in fact not Colony during the course
of pro- known until the last week-end that cordings or while the proceedings he had in fact gone. This section
Harris was an Im- were pending. Ha
was mandatory, it was a matter of portant witness and it was of great discretion provided the two things were there, namely, that the person importance that he should be cross- examined by the defence. The was absent and secondly there was statement that the defence, lind full an opportunity to cross-examine, pportunity to cross-examine during then the evidence of such part as the course of committal procee-lugs was admissible should be read. was not entirely correct, He himself attended all the hearings except one or two. The prosecution: had produced 114 witnesses and the evidence they offered did not refer Strictly to the charges against the accused.
the claim rent, the plaintiff has claiment for
October 1. 1945 the period January 31, 1948. Presumably, the
1945 the scales and did not therefore believe date October', },
has been Council by Choy Chien-kam in defendant had authority to act, ant selected as the date on which the favour of defendant authorising de secondly that, by reason of the terms agreement ought reasonably to have terdant to sell the house in question, of the agreement for sale itself, the been implemented. By reason He also gave the solicitor the title plaintift vannet recover the daginges Artlele 8 of the Moratorium Pro- decds. Through a broker, the plain-claimed.
clamation No. of September 13, 1945; I do not think the agreement could, in fact, have been imple-ha mented until December 20. 1915. for both parties throughout all For his first proposition he rellus when the exempting order No. 2 negotiations and advised them union Halbot v. Lens 10 L.J. Ch. 125 was enacted under the Proclama cach point. fle
the partles Mr Chon's point lok!
that the plaintiff | tion. That order provided that the that the power of attorney was in knew the power of attorney was not restrictions on de log with order and that he would have it acceptable to registered at the Japanese House Registration
did
no authority to sell the premises.
ff's husband and defendant were put in touch and negotiations the sale put in hand.
for
Me Sin acted
the defendant that there was
alf
.
EVIDENCE OF OFFICIAL
not
In
it
l
ny
1
wus
trial.
he said.
then Iafet
It was
Mr Hooton added that in his sub- mission, the solleitor for the first arcused was present at the time of the taking of the evidence of Harris and it was not necessary for purpose of that section that he should be there if the accused him- self was present.
JUDGE'S RULING
was
the
There were three cogent reasons į why the crags-examination was not
Mr Justice Reynolds agreed with Japanese House properly Iimposed by Article 8 really possible or even advisable, Crown Counsel that the section was
Mr D'Alton continued. Vilice and
The rat mandatory and with regard to the where any lot or portion of a lot Registration Onlee. He also alvisel therefore believe that defendant he should terminate "save in any case
the uncertainly of what the He has been or is alleged to have been charges would eventually be; second-departure of Harris, the conditions set out in that section had been com- barm in his meanwhile accepting relies on the evidence of an official affected during the period. of they, the uncertainty as, fo, wire the plied with, a deposit from the propored Paar- of the Land Once (who was in the Japanese occupation... by way
evidence, in general Was tending.
There was no doubt that both chaxer. lic then drew up An Japanese House Registration Office
of assigament.”
particularly his own evidence; and the accused were present when the agreement for the 'e of the house in some unstated capacity for some
thirdly, that no hint whatsoever was deposition was taken and that they and on the 16th Jul. 194S, WOR
was unstated period) to the effect Bul In our case, it is not alleged that
given that Hurtis might not be
or their legal representatives
had signed by the plaintiff's husband as recording to Japanese practice, a The property was affected by the available for cross-examination at
LLS full opportunity to her attorney and by the defendant houre could not be assigned until purported assignment
cross-examine (or would the
deposition His
rol) - this witness, It have the attorney of Choy Chien-kam, the owner was first registered
unfor- been even If it had been tained very vital referendes
elorg | lunate that he was absent, and he On the simming of the agreement. the House Registration Oflee and authorised by Mr Choy Chuen Kam) | lo conversations which were red that relevant portions of the Plaintif
the Ofler would accept a power of since the assignment- paid a deposit of 20,000
Was never alleged 10 have occurred
position be read. Japanese Military Yen to Me Sins in attorney not under seal but it had registered. If there was ever any we
and Spary tween him
The relevant portions of the de accordance with the agreement. to be executed before a Hongkong doubt as to the Effect of non- obvious that cross-exmination afone position of Harris were then read Subsequently, it appears that the
solicitor.
registration, under the Moratorium, could bring the true meaning power of attorney',was, the some
They stated that to the Jury. was removed by Article 10A of those conversations to light. Mr Harris was the manager of the reason, not necepter! by the Japanese
I have to decide whether to accept the Moratorium Proclamation as D'Alton said. be himself did not House Registration Office.
the Land Office oftleist is a suficient enacted by the Law
Pacifle Maintenance Amendment know when the trial began
in Ka Tak. that He knew the second accused. nuthority on the Japanese practice. Transitional Provisions) Schedule 1 Harris would not be available. He
He Following the non-acceptance of He may or may not be such an
first pet han about January, 1947 the power of attorney by the authority-but I am not 19-25-mendment) Order (No. 31 1947, respectfully inquired whe her Harris at the ran out
"aketir"" seems," "inerefore," that the ler with the
Cricket-- Club-| permission Japanese House, Itegistration Office, accept him as such merely ou
the Nothing was then mentioned about the effect of the order was to enable Police or without, and if he left wiring. the defendant apparently wished to evidence given. I must point nut
In May or June, 1948, he the agreement to be implemented with the permission of the Pollee had conversation relire from the bargain but the that he made no refereme to any
with the second ako masonable that the why previous notice was not givenacenced at Kai Tak regarding the solicitor advised the parties that na Regulations of the late Registrarteme
agreement should be implemented to the defence,
wiring of a quonset hut. He asked assignment of
of the property should be tion Onice although clearly regula en that date and I think, 'therefore, [" nd that the balance of the tions existed (see section 11 of that a claim for rent could be made
LEAVE OF ABSENCE second accused if he could put him executed and purchase
contractor to do 30.000 Japanese No. 34/48) monty130,000
from. that date.
some architect the evidence given by C. M. Rowe Smary's oftelal position at that time, Military Yen-should be paid by the difficult to believe that the Japanese,
He did not know electrient wiring. plaklift to him. The balance of the could have insisted in all cases and evidence given by the
* but Jerow purchase money wan
was actually paid execution of powers of attorney be called by the plaintiff. Mr Sheldon electrical engineer
Maintenance, yesterday
be was connected with was no urgency in regard to larria" | aid he would see if he could get
electricity. The second on July 24,
accused 1945, and is alleged fore Hongkong solicitors because this agreed to reduce the claim to rent in the Statement of Claim and
would in effect have excluded 1-10 the basis of $120 per monti: less
Harris was merely
a contractor. powers exeruted outside 20%. But from October 31, 1945 departure.
Later the Brat ac- traversed by the defendant that the cognition
onwards, the premises
werg presu
suin-oing on a leave of absence of one
cured came and he wired the hul assignment was executed on or about Hongkong altogether.
or two months and he thought it to their satisfaction. Ile had several Peter Sin, who was selected ably
to rent control and 2 subject July 27,
Presumably
wan qitu 91 by defendant because of his know have no evidence before me as to war
e unjustifiable
was retricians on the job and he did was in inct executed on July 24,tes of Japanese practice, was not the standard rest of the prembes, allowed to go without the defence know where the materials came when the balance of the called ns witness. He could have in these eircumstunees, I am unable big riven in opportunity to cross- from. He did not remember seeing purchase
money was paid. It was take us exactly why the Japanese lo assess any damages for loss of examing him on the very important the second accused there. The first not dafed. The solicitor told the |
statements which he made in rela-accused presented a bill and a cheque parties that, after the Japanese had 11e drew up the second power of
had rejected the first power of attorney, rent.
flon to the euser
for $563.64 was made out. Ile recognised the transaction, he would attowary to meet the Japanse o
It follows that, in my opinion, the Mr Chen said
was in- did not remember to that he
whom ho pay over the depot dan terjection to the first one and the form plant is led to recover the structed that during the taking of fave the cheque. money to defendant,
ther of the second nwner does not accord total sum of $10,400 and to have the evidence of Hurris in the lower REQUESTED SPEEDIER WORK pileged
power of attorne
court Kwok Kwong's legal représen- with the suggestion that the objec- the costs of the action, later produced but apparently, tion was based on the fact that the
action could
1845
1945.
further
före uny taken mt the Japanese flouse Registration Office, the Japanese military occupation came to an end. FORGED POWERS
In fact, both the powers of at torney were forgeries and the de- `fendant had no authority to sell the property at all. In the course of the cross-examination of the defen- dunt, the circumstances in which the two powers of attorney came to be given to bhn
were
explored bui, although
Mr
it nud lick
very
11
In view of the
first power was not executed before SIDE GLANCES
Honkong solicitor.
other
There are
objections to 31 Chen's dyst argument. In the first place, no dilleulty about the power of attorney arose at all until after the agreement for sale had been executed and the deposit paid.
In
the second place, the misrepresen- tation in this case was not merely one in law (as to the legal formali- ties affecting the power) but une in fact also (ns to the genuineness of Choy circumstances and It. these
Chun-kam's signature) are not above suspicion, there
ere is
is only when the misrepre- sentation is solely as to law, as it
110
allegation of fraud sulest the de-was in the case of Beattie v. Lor!
sondant
and it must be assumed, Ebury 1872 41 L. Reports 804, that for the purposes of this case, that
did not know the powers of at- damages caunot be recovered
he
torney were forged at any material breach
for
of warranty of authority
me, Equally, there is no allen I think, therefore, that Air Chen's
tion of fraud against the
first, argument folis, pishtin and he must be taken to have been similarly ignorant of the forgeries.
that There is no evidence
the
As regards the second argument, I en and nothing in the agreement for sale to suggest that it was con dibond or that it would have becong
plaintiff took any further action null and void if it had been valid
the matter until nearly two yeIn the first place.
after The reoccupation of Hongkong,
when her solleitors informed Chey
Chuen-kam of the purported sale
of the properly to her. It had 31-
ENTITLED TO DAMAGES
It follows that the plaintiff is
parenily come to the jaintiff's entitled to Euch damages as aro knowledge that Chey Chuen-kam proved.
had resold the property towards the Ideal first with the question of end of 1940. Replying to this let-loss of bargain .e. the difference ter on 4th October, 1047, Choy between the contract price in the Chuen-kam's solicitors informed w
for sale and the actual greement
pinintiff's colleitors that defondant market value of the property. The had never had any authority to sell plaintiff has selected October 4, the properly and, by implication, 1917-the date on which the agree repudiated the transaction,
of
ment was repudiated by Choy Chuen The plaintiff claims, by wny Kamps the date na of which the Apecial damage, the
difference be- market value is to be ascertained and tween the contract price of 150,000 Iain of opinion that, in this care. Japanese Military Yen and the value the date of repudiation is the of the property on 401 October, 1947 correct date lo lake. Me Sheldon (when Choy Chuen-kam repudiated cited 170 authority for the
i
to a Counsel said he understood from 120
of Pacific
that
be
Alr There
By Galbraith
ĐÒPI, 1549 BY NEA SERVICE, INC, Y, MC, REG. N. §. PAT. DEF.
10.21
"I don't understand politics-ho used to got angry at the other party, but now they all got him rilod, up!".
Later the Company
found It necessary to have more electrical work done to five wooden huts at Kai Tak, which -were purchased about the middle of June 1947. They wanted the same people who had done the previous job and he fold Rowe, the
Company's electrical engineer, to get the work done und to get the same contractor. The work started about April 1948 and continued somewhere to the middle of July.
He never
the second accused on the job. He had on one occasion asked him to hurry the work and he said he would see. This conversation took place on the
friside main road
the Airfield outside the fivé Juta first accused was supervising the work which was done factorily but delayed.
shw
Sp
three and sometimes six workmen
were on the job. The work was dene in stages but he could not
TO-DAY
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At 2.30, 5.15,
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THE MOST LAVISH ENTERTAINMENT FROM PARAMOUNTI
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M-G-MS HIGH-TENSION ROMANCE
ROBERT TAYLOR Audrey TOTTER• Herbert MARSHALL HIGH WALM
(BETWEEN TWO LOVERS)
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CONDITIONED
2.30, 5.10, 7.20 & 9.30
2.30, 5.00, 7.20 & 9.40 Another Chinese Historical Picture Produced in Lavish
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5 Sorrows
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ALHAMBRAN THEATRE
SHOWING TO-DAY-AT-2.30, 5.15, 7.15 & 9.15 P.M.
HERBERT LOM NO PHYLLIS DIXEY
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Produced by LOUIS H.JACKSON Directed by ALFRED_TRAVERS
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SPECIAL FOR ONE DAY ONLY
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A STORY WRITTEN IN CANNON FIRE!
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Starring Richard GREENE * Carla LEHMANN Opens To-Morrow: THE WORLD'S CHAMPION CHEERER-UPPER! William POWER Irene DUNNE in CLARENCE DAY'S
In Technicolor with Edmund CWENN
"LIFE WITH FATHER “
Another Wood Radio Hongkong
remember the stages. He recognised Alcohol Death
two of the workmen, one of whom presented him with a second bill
Seme time later he rend in papers about the arrest of the recond accused. One day when he was out Tonight when a woman died and n
and another a telephone call comb and the caller man sold he was Spary Later he was taken to hospital
the Glasgow, Jan. 5. One more "alcohol death" came to Glasgow.
woman were after drinking
UKT
6, Programme Summary; 0.01, "From the Plus: 030, La Dem-tere Fran- raise: 7 Warid News and News Analysis London Relay): 7.10. The Masquera- dern (BBCTS): 7.30, "Down Heat-Dire presented by Paul Stuart (Studio); 8, From the Editorials" (London Relay); b.16, University Programme: Pure and Applied Science, No "Physiology** hy Professor Sir Howard Floroy (BBCTS); 8.20, "Concerto” Schumann Concerto in A Minor. Op 129 for Cello & Orchestra. Gregor Platigorsky (Cello) With the | London Philharmonia Orch, 145, Queen's fall Light Orchestra and Jolui Meifugh (Tenor); 9.15. Hook Review: Catherine Scutt-Moncrief (Studio): 030 Crime, Gentlemen please” a Comedy Thriller by Max Keiter, with Naunton Wayne and An employee of a Glasgow chemi- Radii Radford (BBCTS); 10, Radio News- cal works collapsed when he was Report: In 16. Thursday Berenade" A reet (London Relay); 10.18. Weather taken to the police stallen to bo questioned about the spirits, to the Blackhill party.
called up again and the caller again spirits at a párty here. sald he was Spary, He made a pole the
of conversation immediately, after the call. He remembered the second accused reminding him of a conversation which they
ey allegedly had one night at the KCC where he salt the contractor had not been pald, Harris was said to have told the second accured that if the con- tractor would call he would be paid.
This followed the death of eight guests at another party in Black- rice here on Sunday sight through drinking wood alcohol,
He said he did, not remember the conversation art the volce sald, "Beller you don't remember" words to that effect.
The trial is proceeding.
Programme of Continuous Music: 1043, supply of Music for Dancing; 11.15, Weather Noport
and Close Down.
or
Ile was taken to hospital suffering from poisoning and his condition | party during, their inquiries was described tonight as "serlous," | eight deaths after
The polico learned of the second party.-Reuter.
into
the
Blackhill
Page 5Page 6