THE HONGKONG TELEGRAPH, FRIDAY, APRIL 22, 1949.
JUDGMENT FOR RESPONDENT IN CANOSSIAN INSTITUTE CASE
Possible Appeal To Privy Council
Judgment for the respondent (Canossian Institute) was deli- vered by the Chief Justice, Sir Leslie Gibson, sitting with the Puisne Judge, Mr Justice Williams, in the Full Court this morning.
The appellants were Ping Shek and Karel Weiss, tenants of the ground and second floors respectively of No: 34 Caine Road, who appealed against the decision of Mr Justice Reynolds in favour of the Mother Superioress of the Daughters of Charity of the Canossian Institute, who was given possession of the premises on December 20, 1948.
been
In other words, Me - fer's construction involves the preposition that the Legkin- ture inserted action 0 In order matters to provide for any
We which had overlooked. should be very loath to altri- bute to the Legislature such n In its own cm- want of faith eleney unless we are driven to do so. But when the long titie is closely examined, it is clear that the modifications which it
estricted in the manner suf- On the gested by Mr Polter. "Their Lordships agree that contrary the long title leaves the the Governor-General-In-Coun-word "modifications" to be cou- cit could not, by any form of strued at large.
erente in India, ennetment, and arm with general legiats-
Mr Eldon Potter, KC, In-sentative Legislatures" in the Burah where Lord Selbourne at contemplates are not in terms structed by Mr M. A. da Silva. Colonies to make laws, respect- p.905 said:- appeared for the appellants and Ing their constitution, powers. Mr P. A. L. Wright, Instructed and procedure. His point was
that, by implication. The Legis by Mr B. N. Cooper, for the re-
lature of Hongkong (which is spondent,
not had
a Representative Legisla The premises
ture for the purposes of the exempted by the Governor from the provisions of the Landlord Act) did not have this authoritive authority, a new legislative effect, that when the Ordinance
power not crented or authorised and Tenant Ordinance. 1947, on ty,
of the
by the Counclis Act," tlic recommendation
But, on Tennney Committee under the of the Ilon. Leo chairmanship
ne, Sir K. C. d'Almada,
After the judgment had been
lodge v. read, the Chief Justice said that
132 there remained the point of stay of execution.
Mr Potter said he was agree. days, adding. able to fourteen
We may apply for leave appeal to the frivy Council,"
The
to
In the courre of the hearing, however, Mr Wright (for the respondent) drew attention to the recent decision of the Privy Council, ns to the constructie of section 5. In the case of
and
Company Chenard
the other side of the Barnes Peacock,
in
The Queen, said
at
con,
alone.
for
Mr Potter's next point is, in and the Schedules which form part of it are examined, it will
be found that the Legislature dictionary has crented its own
word the n to the meaning of
in the long title "inodifications and has thereby restricted, the "It was argued at the bar that scope of section 8 in the man- ar does not, in our opinion, follow others v. Ariasol 05 TLR 42. legislature committing importer for which he contends. It The effect of that decision is tent regulations to agents that recilon 5 is not a disabling delegates elfaces itself. That is that the instances of modifica- section in any sense. In the not so. It retains its powers in-ons in the Ordinance and the wherever 11 Schedules are exhaustive of the inodiflenflons contem- light of this interpretation, Mr tact, and
the Legislature in Volter
that Mr Wright: No objection, my
conceded
the pleases, destroy the agency it has sort of Validity Colonial
Laws
Act created and set up another, or plated by Lord,
Chief went out of the Giving Judgment, the
picture and take the matter directly Into his rection B.
But let us now examine the own hands. How far I shall Justice said:
that the real issue was whether
of subordinatt
light of the appeals arise out of two section 8 of the Ordinance was seek the aid nctions for possession of their pires the powers conferred agencies, and how long it shall legislation in the
has crented its own dictionary. ground floor and second floor of
The drafting of the Ordinance The plain on the Legislature of Hongkong: continue them, are matters for contention that the Legislature No. 3 Chine Ronil.
31
by paragraph VII of the Let-each legislature, and not
For In each action wi The
ters Patent of February 14, 1917. Courts of Law, to decide."
Again, in Powell v. The Apollo is not entirely consistent.
the word "modifica- Mother
the which reads as follows: Superharity
Candle Co., Sir Robert Collier, example,
llons" in the
the long title becomes of the Daughters of
"adaptations and modifications" Canossion Institute (Hongkong) "VII. The Governor, by and at p.201 said:
sections 3, 4, 5 and 7. If And
the defendunts were Mr with the advice and consent of
"It is argued that the tax in in Legislative Council, may Ping Shek and Mr Karel Weiss. the The defendants were monthly make laws for the peace, order, question has been imposed by Mr Putler's contention was cor- of the the Governor, and not by the reet, "adaptations" would have had been the more appropriate word who Legislature. tenants of the plaintiff and had and good government
the to use throughout. But however been given notice to quit,
Colony,"
power to impose it. But
the Schedules do nf the
Mr Potter's con- Privy duties levied under the Order in this may be, HELD EXEMPT
The decision Ceunell was not entirely with Connell are really levied by the not hear aut
Governo: The issue in each action out nail to Mr Potter because authority of the Act under which tention. See, for example, the
to the the Order is issued. The Legis power given to the able to point which is relevant to these ap-
be was
tain events, all or any of the peals was whether the premises following passage in the judge lature has not parted with its by Schedule 1 to repeal, in cer-
perfect control over the Gover-
the power. of provisions of the Proclamations were exempled from the pro- ment of Lord Reid:
to make
Or-ho, nnd has tection of the Landlord & "A
DOWS
prace, order course, at any moment, of with Nos. 19 and 20. the dinances for the Tenant Proclamations of
of a drawing or altering the power
This brings us to Mr Polter's British Military Administration and good goverment
they have entrusted to: marise al-' which
last point. in connection with which came into being after the coleny does not
him." constitution or
his second line of argument, theleration of the Japanese occupation of
which is that the modification POWER TO AMEND Colony. The actions were heari rowers of the colonial Legisla-
nude by the Order in an inter- before Mr Justice Reynolds who ture."
Now clearly there is nothing ference with the rights of the; held that the premises were so
which takes subject and that section B ought This case was also of seme exempt and gave Judgment for:
be construed 25 though the plaintiff in both actions. It avall to air Wright who are in the Ordicande
contained such words of further away one lula of the power of to
All that the is from this decision that
the Legisinture.
would ns
pre- the judgment Legislature has done in the Or- limitation present
Governor-in-Council passage lodged,
Caftown-
dinance is to give to the Go-vent the
body from effecting such UFF inter- On the restoration of civil
"Such a power has been heldvinor-lo-Council a government in Hongkong. the Landlord & Tenant Proviams to authorise the utmost discre which Mr Potter contended had ference, tions were preserved by
thetion of enaciment for the at-ucially, through its members, a power, not to ture self-a Law Amendment (Transl alament of the objects painted controlling voice in the Legisia. legiskte generally, but to amend Pro- certain spervified military clamations. We are unable acree that such a delegation was ultra tires the powers of the
appeals
the our
have been
attention
ก
л
tional Provisions) Ordinance, to," and a Court will not in
quire wheller any particular 1910. which
shall refer We
ennelment of this character does to ពន "the Ordinance." The sections
Ordin-in fact promote the peace, ar- the of ance with which we are direct-der or goed government of the
colony (Riel
The Queen Legislature. ly concerned are sections 3 and (1885) 10 App. Cas. 075. at B which read us follows:
3. The Proclamations of the .670)."
British Military Administration
Me Potter,
V
putting
fact
set out in the first column ofrase at its highest.conthat-His Majesty hus-not-dls Schedule I hereto shall have
tenderi that, by section allowed the Ordinance would effect as if the same had been
of the Ordinance. the contained in Ordinances enact Legislature had turned cure any want of authority to
Legistature of the the Proclamations in the First P ed by the Colony coming into operation Schedule into Ordinances, and
from
which
any
bs from the respective dates, that any attempt by the Lexis
such Pro-lature any,
for to provide clamations ΑΓΙ expressed to amendment whatever al an take effect or as from the re-
Ordinance by the Governor-in- spective dates of promulgation Council must be bad. of the said Proclamations and shail as from the enactment of this Ordinance have effect sub- ject to the adaptations and modifications contained in the second column of the schedule.
We turn now
to Mr Potter's
second line of argument which! is that the Order is ultra vires the Ordnance.
SIDE GLANCES
2:26
By Galbraith
SHOWING
TO-DAY
COM. 1949 BY REA BETVICE, INC. T. M., RED, U. 3. PAT, DIY,
"It happened at Sixth and Main-when you were tenching mo to drive, you didn't say that was one of the very dangerous stop streets!"
UNITED EUROPE
FLAG FLIES
OVER LONDON
2,000 Delegates Meet
At Guildhall
London, Apr. 21.-London's historic Guild- hall was crowded today for a public meeting of the Euro- 2,000 delegates of the Conference of pean Movement.
The flag of the United Europe Movement-- a brilliant green letter E on a plain white ground -was hoisted over the building—the first time it had flown in the city of London.
Greeted by the Lord Mayor, "But unless
fo- Sir George Aylwen, the delegates voured
Amery said, were addressed by 31. Andreabolished," Philly, of France. M. Paul Van "such a preferential system ap- Zeeland, of Belgium, and Lord, plying to a limited area would Havana enine up against the Layton of Britain.
Sir John Anderson, former Charter". Chancellor of the Exchequer,
the
most nation clause
Mr
presided.
onc
PENAL STATUTE.
Plans for an "Industrial Par- lle cited, as instances of the
Ilament" of Europe are expect- extent to which the Courts will
Introducing the speakers, heed to emerge from today's pro- to 0 to preserve the rights
the subject, the declared, "I think we have coedings of the European Move. liberties of
of State for Home Affairs
What Ex render of sovereignty. cases of The King v. Secretary heard far too much of the surment's Economic Conference.
Today the conference split into until which, five committees parte O'Brien 1823 z K. B. 301,ure can be and must be is a in view of that we have said. Cox and Hakes 13 A.C. 500, voluntary nbatement of the late in the
the evening, freely dis- It is unaccessory for us to ex-and In re Bunter 1015 1.K.B. claims of sovereignty such as cussed problems of forming
econumy
into inter- European involved in every his press any opinion as regards the 21. But we cannot regard these are
before us. The remedy-by question of whether the
cases as parallel to the
single market for labour, pro- case national agreement."
duetion- -and. exchange.To- Habeas Corpus is the very
M. Paul Van Zeeland, former mor
morrow further sub-committees Minister, SUE will examine. these problems corner stone of the liberty of the Belgian Prime subject.
gested that the meeting should more deeply and try to agree.
The "take a frank look at the spot
Agricultural Committee The Voxatious Actions Act,] we are in.”
today discussed agriculture's 1898, is a highly penal statute which enables à éltizen to bel
"It has been evident." he con- parl in the recovery of Europe, He began his argument by deprived of one
of his most tinued, "that it is impossible to Specches reflecfed a feeling that ngriculture had been neglected. contending that we must con- fundamental rights the right of solve our problems utong nar-
--Reuter. strue section of the Ordinance secess to the Courts. The rights row national lines. It is impor in the light of the long title of of a statutory tenant under the sible for any Power, even for the Ordinance which reads as Landlord
Tenant Pro- the biggest Power, to ensure clamation are in a very uit peace along unilateral lines." We find it unnecessary to ex-follows:
Lord Layton, category. The
The conferring
a distinguishca press any opinion on this pro-
"An Ordinance to provide for
the economist, declared that pro- the Legislature on position because, in our view, the incorporation into the law it is founded on a inconcep. of the Colony of provisions
Governor-In-Council
gress in Europe could only be power in exceptional cireum- founded on a compromise be tion of the position. The Pro-
intertal Proclamations and mat-
statutory Europe. clamotions. In their origin,
promul- stances, to deprive
Rangoon, Apr. 21-A Cathiny were ilme add to alter or amend from Ordinances.
something very different ter done thereunder
They weregated during the British Mili-tenant of his rights as such and
to his contractual Mr L. S. Amery, former Er-
Pacifle aircraft on a chartered tary Administration together leave him
fish Minister. submitted 1 flight over the delta yesterday the provisions of the Schedules Proclamation of a military ad- with matincalions of such pru- rights is not a modification of
the Social and was demaged by ground fre hereto or any of them."
ministration called into being
the near the rice port of Bassein, 90 In purported exercise of the in the turmoil following the re-visions and to amend such Or-the Landlord and Tenant Pro- resolution to
afternoon miles West of Rangoon, efficial can hold have been outsirte Conference power conferred by section 8 occupation-a type of authority dinances as are affected by such clamations of a kind which we Commercial Committee of
1 incorporation." a Legislature
the contemplation of the Legisla recommending that the most cources reported. an: Order of far removed of the Ordinance
the favoured der elvil government. is Mr
enacted ture the Governor-in-Council mile on September 6, 1846 nad
Ordinance and we are not pre- pured to read into the Ordinance tion
low Notifica- published as Gazette
words which would exclude it- tion 388. We shall refer to this an "the Order Paragraph 3 of
words which are not there. Order provided, inter alia, as follows:
said
1. The Governor-in-Counell may by Order from
the
nx
the advice of
lime to
was
"The Governor acting upon
under
дисс.
MISCONCEPTION
from
reslored, and
the
Ordinance (reading
the
Wright argued
ferent
of
thai we
when
and
of
tween
Eastern
tor
ments.
this
and
Western
1-
CPA Plane Fired On
The starboard engine was put aut of commission, but the air- craft landed safely at Bassein and none of the passengers wat injured Associated Press.
21-
nation elnuse: be dropped from internu-
agreements to a fair assumption that, in the should not regard the scope of circumstances in which they section U as restricted by the
bilateral agree- they could not were issued.
jlong le because the Ordinance hope to reach the standards of dealt with a number of matters completeness and permanence and the Legislature could not
The resolution, which stimu-] On the contrary the Legisla-Jated the afternoon's discussions, one associates with an Ordin hupe to cover them all in the
may well have contem-said that "the Trade Committee long Utle. We agree that the ture
conditions considers that European antions MURDERER TO as. the Colony got should be free to develop co- They lack then the sanctity of long title does not strictly cover plated that, in the
the prevailing Exceutive Councli
back to normal, the Proclama-
every possible PAY PENALTY may, on the recommendation of an Ordinance. But they had toll matters dealt with in
lions of the British Military Ad-peration by
means and to the fullest extent the Tenancy Committee that in be given some status when civil Ordinance.
which were not
that its opinion exceptional elreum-government was
It does not, for example, cover ministration
Johannesburg, Apr. nomic and social arcas allow. stances
Samuct Odendant, 20, of Jehan- to exist which make the what the Legislature has prosection 2, which repeals the Pro-repeated would require modifica- their several political, eco-
time, ..and may
The exercise of the discretion hereby vided in
most favoured nation nesburg, was today sentenced to conferred
in clause is opposed to that prin- death for the murder of an desirable, Brant it as a whole) is not that the clamations, etc., of the British tions from time
ilitary Administration which well, have been prepared,
to entrust to
ciple insofar as it imposes a Vcto American businessman Samuel exempilan in any particular Proclamations shall have
are not expressly kept alive by those all or any of the full status of Ordinances but are Ordinance. But the long the
Cor-in-Council ense from
arrange Morris Schiff, 54, and an Indian provisions of this Proclamation that they shall have that status thle specifically includes among task of making such modifien- any co-operative
the to the power of
We are therefore And any amendment or modif- subject
deal the purposes of the Ordinance, tions.
of modifying the opinion that the Order was not its whether callon tiereof upon such terms Governor-in-Council to
and ultra vires the Ordinance. as appear to him to be just and with them under section B... the purpose
Proclamations kept alive
It follows that these appeals Given that the Proclamations that is the very purpose of see- It was in pursuance of this now enjoy only this qualified on 8. We think Mr Potter's must be refused with costs and paragraph that the Governor-status, it remains to consider, on contention is correct. in-Council, on August 1, 1947, general principles, whether the
next contention Mr Potter's purported to exempt the pre-delegation of legislative power mises which are the subject of by section 8 is sanctioned by the was that the effect of the long there pppeals,
Letters Patent. It is settled law title was to limit the scope
has section 8 to such modifications that a colonial legislature
thons were strictly V
equitable;"
TWO ARGUMENTS
of
we so order.
the
of
some power of delegation-see, of the Proclamations kept alive Prison For Life
for example, Powell
necessary for
by
L'At 2.30, 5.15,
KING'S. 7.20 & 9.30
BETTY GRABLE
(that figurel).
VICTOR MATURE
(that hunk of mani)
CAROLE LANDIS
{+++ mmmmmineuriners}}
P.M.
| Throu kemos that momen EXCITEMENTI ...and do they usaka the screen alegia!].
WAKE UP SCREAMING
Laird Cregar William Gargan Alan Mowbray Allyn Joslyn
Directed by H. Bruce Humkoruzana Prodead by Mikus finding – forene Pay by Deriyle Taken
A 201 CENTURY-POX PICTURA
ADDED: LATEST PARAMOUNT NEWS
LEE THEATRE
ADVANCE BOOKING OFFICE CHINA TRAVEL SERVICE 1. QUEEN'S RD, G. BOOKING HOURS, 11.00 11 334 pan ddy
Last 3 Shows To-day At 2.30, 5.15 & 7.30 P.M.
MYS BROTHER TALKS TO HORSES
"BUTCH" PETER BEVERLY. JENKINS-LAWFORD TYLER
TO-NIGHT AT 9.30. P.M. ONLY
PICTUER
"SPRING SONG”
COMMENCING TO-MORROW WARNER BROSI ALLE
April Showers
JACK CARSON ANN SUTHERN
***BOBLES ADA-$2 SAVAL JANIST KIRA
ALHAMBRACE THEATRE
HELD OVER! TO-DAY ONLY! !
AT 2.30; 5.15; 7.20 & 9.30 P.M.
Hal Roach
presenta
THORNE (Topper) SMITH'S HILARIOUS NOVEL
TURNABOUT
John
starring Cirole Adolpha MENJOU ⋆ LANDIS ✩ HUBBARD,
OPENS TO-MORROW!
WINNER OF 3 ACADEMY AWARDS!
“THERED SHOES"
Color by Technicolor
concessions or priorities or wallet at John mesburg's Charl- From End To End Radio Hongkong
preferences
in quota
+
bulk ton last November.
thai On Horseback The evidence showed
to Mr Schult's buying measures, unless thero Odendaal went
shot the American, later shoot-o a complete eustoms union. are carried out to the length of room, demanded money and then This, for political as well using the waiter when malting his economic reasons is not a prac-
get-away-Reuter. tleable policy
any near future."
in
"REVOLUTIONARY" Special Jet
Fighter Plane
•
10
HKT.
ON
0.00 Programme Bummary: 0.01, Jazz Classics: 0.15, Evening Melody: Londen, Apr. 21,--A 24-ycar 4.30, Cantonese by Radia given_by Ginmorgan woman, · Mrs Miss Leo Wai Lân & 8. K. Lee 0.50, Sports Preview Margaret Jones, is riding alone (audio);
(Studio); "Muric Lovers Hour** on horseback from Land's End, Classical Request Programme pre- the southwestern Up of England, ented by Yvonne Charter (Studio): to John O Groats, In northern-500, World News and News Analysts London Relay); 18, "Looking At most Scotland.
Britain"--Kent--The Garden of Eng- She set out from Land's Endland. by D. F. Attken (BBCTS): The New Concert, Orchestrai yesterday, with all her needs.
0,00, Fram, the EdBorials" (London by Colled "revolutionary"
packed in two big saddle-bags, rioy) 0.10, Hong Kong Dances 21.Gregorios Athens, Apr.
Guzman and Hi some delegates, Mr Amery's re-
They include an ex-Army blan-To"-Eddie Mr Potter (for the appellants) Apollo Candle Company, 10 A.C. the purpose of fitting them into
questions Greek joursolution provoked as it Stachtopoulos, a of the Colony
ket which she may use to sleep chestra from the Ritz Ballroom, developed two lines of argument 262, Hodge v. The Queen 9 A.C. the law
found guilty whether Britain would be pro- London, Apr. 21. qut of doors in fine weather, Mrs Detectat, Cora Baltecer: 5.B. The in Fiction": "road My concerning the exemption. In 117 and The Queen v, Burah 3 existed immediately before the ralist, was today
Davies. the Orcf complicity in the murder of pured to give European coun- Vickers-Armstrong Compuny
(Studio); to,00 the first place he faintained A.C. 800-and the only question coming into force of
American tries Mr George Polk, an
most favoured
announced tonight, that it has Jones is on the same mare she Clifford
of Rumsky-Korsakov; -10.30, “Birings that section of the Ordinance is whether the particular dele-dinance.
radlo company'a corn
to Sunderland-Router.
with. Wingo". The Melachiinu. Atrings was ultra vires the powers of the gation provided for in section 8
Legislaturd whose body was foundent, treatment, putting them on a built a special jet fighter Mans I rode last year from Glamorgni A Short Programme of the Murte
floating
with members level
of the for the British Government. Now, when the
with Milleent Phillips and Wilfred Legislature of the Colony, In the falls on the right side or on the
Harbour in May Commonwealth
"designed to Investigate the enacted the Ordinance, it must in Salonika
Barnes (ORDS); 11.00, Radio News second place he maintained that wrong side of the line.
Reel (London Relay): 11.15, Weather been last year,
told Reuter to folems associated with fight at Stachtopoulos Was Mr Amery
Report and Close Down, be presumed even if nostion & was Itself
of Imperial and beyond the speed of sound." We are of opinion thut, in de familiar with the existing Jaws sentenced to life imprisonment night that because intra vires, paragraph 3 of the
It had decided He was one of four people Preference Britain, could not
The
new plane is n swept- Order was ultra virca the pow-ciding this issue, the question we of the Colony.
should ask ourselves is whether, which Proclamations it wished tried for the murder. Two men, enter any European customs ck wing development of a
Coffey, Junior, Mexico, last, night, "thờ” United ers conferred by section
In Robert Lewis which single-seat machine As regards: Me Potter's by the delegation, the Legis to keep alive and, if Mr Potter's Evangelos Vasvanns and Adam unlon,
bus wholly
But if, instead of an all-out February last year established aged 30. Democrat Representa-States Air Forco has announced. or partly construction of the long title is Mouzemides, tried in their ab-
An Air Force Reserve Omoer, first line of argument, he ori- lature
itself 100. Street correct, it was. In a position 10 rence, were condemned to customs union, a system could new international speed record tive of Johnstown, Pennsylvania, ginally placed considerable re-efface
An inzet out once and for all the death. The fourth accused, the be evolved of preferential tariffs over a hundred kilometres close was killed instantly when his the Congressman was on a cross-
profielenes Dight llance on section 5 of the on Ultra Vires P420. Colonial Validity-Act.stance of what would be efface modifications of the Proclama mother of Stachtopoulos, was between members, Britain could circuit, of 564.8 miles an hour Shooting Star jet fighter plane country
|acquitted:=Reuter;"
certainly joirs.
- | Reuter, a busintangan
crashed at Albuquerque, New Router. 1855, whian Surables Repre- ment is given in The Queen v. tons which were necessary.
8.
have to
nation
F
Proficiency Flight Ends Fatally Washington, Apr: 21-Mr
Page 5Page 6