this Ordinance it may be desirable to introduce some small amendments, but it will be time to deal with those when we reach them section by section in the Committee. I may mention that as regards section 4, one or two matters mentioned by the learned gentleman representing the Opium Farmer to this Council had already occupied my attention, and I shall be prepared when the Bill is in Committee, and clause 4 is reached, to suggest such alterations as the following, namely, at the end of the first line after the words "Any opium forfeited by the Crown" should be added the words "under the preceding section, &c." I had already noted that and had called the attention of the Governor to the matter as one which should be altered. I had discussed that with the officer administering the Government.
As regards any possible rivalry with the Opium Farmer and the matter of sales I myself feel that there is something to be said against the Government selling opium. The Farmer has had granted to him a certain monopoly of selling prepared opium, and that monopoly was conferred by Ordinance 21 of 1891. If hon. members will refer to section 39 of that Ordinance—which is the present law—they will see that it says "any opium forfeited and detained under the preceding section may be disposed of as the Governor in Council may direct." That follows section 33, which says that if the opium is forfeited by the Magistrate it may be detained by him until the disposal thereof has been determined by the Governor in Council. Then section 39 says that it may be disposed of as the Governor in Council directs.
The words "disposed of as the Governor in Council may direct" are words of wide import, and they might cover a sale by anyone, I take it, and in point of fact I believe they have covered sales by the Government to the Opium Farmer. The Government has always been very careful not to sell to the detriment of the interests of the Opium Farmer, and I believe on former occasions when opium has been forfeited the opium has been offered to the Opium Farmer himself at a fair price, but I am not prepared to say that there is not power already in section 39, in those words "may be disposed of as the Governor in Council directs," to sell opium, or that disposition by sale would not be covered by that expression and, if so, the monopoly granted to the Opium Farmer—the monopoly given by that Ordinance—is a qualified monopoly and does not apply in cases where opium has been forfeited to the Crown.
When we come to the Committee stage I shall be prepared to make certain suggestions and alterations which will, I think, avoid any difficulty, or anything like an appearance of rivalry between the Government and the Opium Farm in selling the drug, and I think no difficulty will arise upon that matter. When I come to the third section I shall not be prepared to offer any substantial amendment. As regards the word "ship," which again has occupied my attention, the word "ship" is defined in the principal Ordinance as including other vessels besides steamships, and considered whether "steamship or ship" should be used. I was instructed to use the word "ship." I see an objection to substituting "steamship," because I think the protection should be adequate to the liability which is imposed by section 33, and that imposes penalties on any "ship" conveying opium in contravention of the Ordinance. Its operation is not restricted to "steamships."
I should like to call attention to section 35, because there appears to be a misunderstanding in the minds of some people. Section 35 reads: "All opium seized with regard to which any breach of this Ordinance, or any regulation made thereunder, has been committed, together with any implements, may be forfeited by the Magistrate and in his discretion adjudged or delivered in whole or in part to the Farmer." It was contended by the learned counsel that the Magistrate must deliver all forfeited opium to the Farmer under that section, but the words of the section say, "may, in his discretion," and "in whole or in part." Everyone must be familiar with the construction placed on the word "may." The word "may" where it is coupled with a legal duty is treated as if it means "shall," but where the words are "in his discretion," those words have always been held in every case to prevent any compulsion or equivalent to "shall." And whereas this section 35 says that "all opium may be forfeited" and "in his discretion adjudged and delivered in whole or in part to the Farmer," it will be impossible for anyone to contend for one moment that the whole of it must be handed to the Farmer. Therefore I take it that there is no inherent right in the Farmer to have all the opium handed to him.
There are one or two other matters which may perhaps occupy attention when we come to Committee. I think I have said enough to show that there is no desire on the part of the Government to act in any way hardly or unfairly with the Opium Farmer. Section 4 as modified and as it emerges from the Committee way, I trust, be in such a form as will be entirely unobjectionable. As regards the alteration of "steamship" for "ship" in section 3, I do not think I can alter that. I think myself that the company have some grounds of complaint, but it seems to me that when the Opium Farmer sells his opium to any man, and gives a certificate of sale to protect that opium in the hands of that man, and receives the money for it, thereupon his rights cease. If that opium is taken by the purchaser and not entered on the ship's manifest it must clearly be for the purpose of evading freight, and he has no right to carry it without paying for freight, or it may be possibly for the purposes of smuggling.
If it is put on the ship's manifest it has to be passed by the Customs officers. But how is the Opium Farmer interested in what the man does with the opium he has bought and paid for? If the man throws it into the sea it does not matter to the Opium Farmer because he has got his money for it. If he succeeds in smuggling it on board a steamer, how does that affect the Opium Farmer? Having got his money for his opium, what does it matter to him if the man tries to smuggle it and because he does not succeed it is forfeited to the Crown? I may go a step further without impropriety, I may say that I had suggested that the steamboat people had only to say to the Customs authorities, "We have found some opium on board, and now you can seize it directly we are out of British waters." It is only fair to say that I suggested that course. I have heard nothing new to-day on that matter, but I sent a minute to the Secretary of State embodying that suggestion some time ago, and after having seen that minute we have received instructions from his Lordship to draw up this Bill.
I have carried out in section 3 verbatim the instructions received from the Secretary of State. I cannot do more; I cannot alter it; I cannot make a Bill which I have not been instructed to do. I do not see, I must say, in what way the Opium Farmer is wronged by section 3. We have heard it suggested that damages could be got from an action against this Council for passing this Bill.
Hon. Members—No, no!
The ATTORNEY-GENERAL—This Council is supreme.
Hon. Ho KAI—Against the Government, not against the Council.
The ATTORNEY-GENERAL—I am sorry I am misinterpreted.
HIS EXCELLENCY—I may mention that I saw the proof of the proceedings of last Council meeting this morning, and one question asked by an hon. member was whether we had power to do this, or whether we were doing what was legal.
The ATTORNEY-GENERAL—I need hardly say that it is competent for us, within our jurisdiction, to pass any Ordinance which we think fit. It is perfectly legal to take away any man's rights and alter them, within our proper jurisdiction. It is of course a different question, whether it is expedient. The Courts of Law will carry out the law, and the law is made by this Council. On that point I should like to read some remarks which occur in a judgment by the late Chief Justice in a case concerning the Praya Reclamation Ordinance. These are the words of the late Chief Justice, Sir James Russell:—"The act of the Legislature is supreme and binding on this Court, and although its action may even take away certain rights, or cover acts the most tyrannical, we cannot interfere." The remarks of Chief Justice Cockburn in Phillipps v. Eyre 4 L.R. Q.B. 243, are in point. The Ordinance is made by the Governor with the consent of the Legislative Council, and duly assented to. It is made in virtue of the powers conferred by the ...
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