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The
Daily Press.
HONGKONG, FEBRUARY 27TH, 1879.
POLICE COURT.
February 26th.
BEFORE C. V. CREAGH, Esq.
EXCESS OF PASSENGERS ON THE RIVER STEAMERS.
Captain T. T. Benning, of the Hongkong, Canton, and Macao Steamboat Co.'s steamer Kinshin, and Captain, thing, of the samo Company's steamer Potean, were charged with carrying passengers in excess of the number allowed by Ordinance of 1876. The Crown Solicitor, Mr. E. Sharp, appeared for the pro- secution, and Mr. Brereton for the defendants.
It was arranged, by consent of both parties, that the two cases be taken together.
Mr. Brereton said-Your Worship, before going further, I would ask you to take down my protest against proceeding with these cases at all, because I sabmit that the Ordinance under which these penalties are sought to be enforced is in abeyance and effete. I also protest because it is aurdiuance repugnant to "common sense and reason, and as such that the common law should take no notice of it; but should pass it over and give it no effect. In support of my first objac. | fion. I bring before your Worship the fact that in eptember, 1877. a summons was taken out against the captain of the Kinshan-Captain Carey, who is now in Court-seeking peualtios for a precisely similar reason. There was on that occasion a very large number of pas. sengers carried on board the steamer on a voyage from Canton to Hongkong in excess of the proportion which this Ordinance. purports to allow. Now on that occasion I sudeavoured to show the magistrate that the Ordinance was a tissue of absurdity, which I still say it is, and that it in no way provided for the safety of the passengers or provided any criterion upon which the gaber to be carried in the steamer with safety could bo estimated.
Mr. Sharp-I think my friend is going a little too far in saying it is a tissue of absurdity. It is not very complimentary to our legislature.
Mr. Brereton-I say it advisedly, without meaning any disrespect to the legislation. Sir, I won't go into the defence made on that occasion, because it would take up time nnnecessarily, but I would shortly tell you that Mr. May, who was the magistrate presiding, declined to take that view of the Ordinance and fined the company $250, the maximum fine provided by the Ordinance. and considering that he had no alternative ander the rdinance, which I still deny, of reducing the additional fine of $5 a head for every pas senger carried in excess of the number which the Ordinance purports to allow, he inflicted the full fue. Now, sir, whet was the result P Supposing that the Ordinance offered a fair and correct criterion, the number of passengers taken on board in excess of that number was? very considerable, and it should be presumed that in the case I mention there was great danger to life by carrying so many. But, ander in. structions from the company. I prepared a usmorial to His Excellency the Governor, setting forth the facis. His Excellency took the trouble of going on beard the stonmer and examining it himself. He had the vessel regularly surveyed and every proper means taken to estimate what should be the fair number of passengers to carry. I say every proper means. because I am perfectly convinced no such menuS were taken before that Ordinance, 11 of 1876, as passed. If they hal we should not now be involved in this trouble. Now, what was the re- ault? His Excellency, who is not an amateur statesmau, but a real one, who knows what laws aught to be, and whe has himself is the House of Commous contributed to pass some of the mostim- portant enactments over passed in the British House of Commons-His Excellency remitted the whole of that tooxcept $100, a mere nominalsın. Is not that the most conelusive reason that this court could have-that where the Governor, the fountain of laws here, abrogates the whole of it. forogos the fine-that the Ordinance is condemned
for ever
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Ent that was not all. Having satis- fed himself that this Ordinance was a farrago of nonsense, under his direction a new Ordinance was brought in, and it is the greatest pity in the world it was not passed. This bill was prepared in the following February, 1878. It wan coad a first time, and section 6 of that Ordinauce is so framed as to meet a case of the kind and the pro- vision there made, if carried out, would haşe been a proper and a just one. That section says-
The Governor in Council way, from time to time. grant special licences for steamships og vessels
Pro- pelled by steam, leaving or entering the waters of the Colony for or from Canton, or for or from any place on the Cautor river, or for or from Macao, in respect to the number of passengers to be carried on each such steamship or veasel propelled by steam, and in case any steamship or vessel propelled by steam, shall leave or enter the waters of the Colony as aforesaid, having passengers ou board in excess of the numbers authorised by such specini licence as aforesaid, or in case any steamship not having such special licenco shall leave or enter the waters of the Colony as afore. said, having passengers con board in excess of the pro. portion of two passengers for every three tons of the registered ust tonnage of such steamship, the owner or master thereof, shall be liable to a penalty not ex. ceeding two hundred and fifty dollars, in addition to a penalty of five dollars for every passenger on board, in excess of the number permitted by the liesnes, or wben no special licence has been granted in excess of the proportion of two passengers for every rogistered three (net) tons of the said steamship.
Now, sir, if that Ordinance were passed what would have followed?
His Worship-Woll, it only relieves vessels which have a special licence.
Me. Brereton--Just so. If it passed what would be result ? Why, that each vessel would then got a special licence.
His Worship-Not every vessel. It was not intended to give every vessel a special license.
Mr. Brereton-Every vessel plying to Canton and Macao.
His Worship---The bill does not say so. It is
The Governor may grant."
Mr. Brereton--The term "may" is merely an expression of courtesy. When a person in the position of Governor is dealt with by the legis lature the term is invariably used.
His Worship-Why are they called special if they are intended for every vessel!
Mr. Brereton--They are given for special duty and under special circumstances. That is the reason the licences are called special. Then the section goes on to provide certain penalties for vessels not getting a licence carrying passengers in excess of two for every three tous. Now, I would not quarrel with the penal clause there, although it is equally absurd, because the object of a peual clause is merely to enforce some duty or right, but I would not quarrel with it because the ship would merely apply and the Governor would be bound to give a licence. It has been laid down by the first jurists in Eug land-the present Master of the Rolls laid it down-that where the legislature is dealing with the judicature the word "may" is nsed but is always read as "shall."
Mt. Sharp-I considor all this is irrelevant. for I don't see that we have to do with an Ordi- nau not passod.)
1
Mr. Brereton-But I want to show that by force of circumstances the Ordinance is in abeyance and effete. Although Mr. May inflicted the fine on the other summons the Governor re- mitted it, and this bill being brought in, it shows the intention of the legislature to abrogate the Ordinance of 1876 and bring forward fresh legis. lation. That bill was withdrawn. And why? Re. cause it was thonght better to bring in one com. prehensive Ordinance that would embrace all! steamers entering the harbour and comprise varions others matters. That bill is still before the legislature, there is a committee sitting upon it, and it purports to deal with this subject. Now we have one bill brought in! specially in consequence of the first case against the Kishan, read a first time, and only with- drawn to make room for another Ordinance of the same kind. It would be contrary to usage and equity to deal with the case under this Ordinance while the other is before the Council. His Worship-It is certainly not contrary to usage, because it is done in every court and every colony.
Mr. Sharp-This is entirely out to order. Mr. Brereton-I am protesting against the Ordinance. I want to show you it is in abeyance
and effete.
His Worship-The other bill may never pass.,