36
ment, however, cannot have much difficulty in coming to a decision without the advice of that body. The building of houses on archways over the entrance of lanes is entirely opposed to sanitary principles. The objection is of course greater in proportion to the height of the houses in the lane and the height of the obstruction, but any obstruction whatever is objectionable as it necessary interferes with the free cir- culation of air and more or less excludes the direct rays of the sun. It would be an anachronism for any civilised Government of the present day to sauction such structures or to sanction their continuance when the lapse of vested interests permits of their re moval. The Director of Public Works secmed to be influenced in his opinion by what he considered the hardship to the owner of the house built over the ground in question. If there is any real hardship in the matter it would be better to meet it by monetary or other compensation than by permitting the continuance of the obstruc tion. Where for any reason the renewal of a Crown lease is refused liberal con- sideration should be given to the in-
terests of the parties affeted thereby, for when a person hold land on
THE HONGKONG WEEKLY PRESS AND
ing to the official circle is one of the best guarantees for decency and the avoidance of the painful accidents that sometimes re- sult from carelessness in the arrangements. The Superintendent of Victoria Gay, on being applied to for orders of admission for the Press in connection with the execution that took place on the 12th January, replied that he had decided not to mit reporters. Whether this decision was arrived at on his own authority, or after reference to the Government, we do not know, but if the former it seems desirae that some rule should be laid down on he subject and that the practice should not be allowed to vary with the individual views of the officials who may successivelf be in charge of the Gaol. On the occasion of previous ex- ecutions in the Gal orders of admission have always been fiven to representatives of the Press, and that seems the wiser
course.
SUPREME COURT.
12th January.
IN ORIGINAL JURISDICTION.
(January 19, 1898. 13th January.
IN ORIGINAL JURISDICTION,.
BEFORE SIR JOHN CARRINGTON (CHINE
JUSTICE) AND MR. WISE (PUINNE JUDGE).
T, HOWARD AND M. J, D, STEPHENS V. SIE
WILLIAM ROBINSON, G,C.M.G., AS GOVERNOR.
The plaintiffs' claim was for a writ of man damus.
Mr. J. J. Francis, Q.C. (instructed by Mess Deacon and Hastings), appeared for the plain tiffs, who are Thomas Howard and Matthew!
John Denman Stephens. The Attorney-Ge oral, Hon. W. M. Goodman (instructed by Me II. L. Dennys, Crown Solicitor), appeared f
the defendaut.
Mr. Franois said the claim was for a writi mandamus and the proces dings were taken under the provisions of section 85 of the code A potition had been filed by the plaintifs and an auswer filed by the defendants, and Lordship the Chief Justice in clumbers had sottied the issues arising between the parties those pleadings and bad directed that the fire two of those issues, which involved the settlementa of important questions of law, should be disposed of first. At the suggestion of the plainting and with the consent of the learned Attorney
lease from the Crown it is always assumed BEFORE SIR JOHN CARRINGTON (CIER General it was arranged that the matter should
that a renewal will be obtainable on the expiry of the lease, though possibly at a higher rental, to be fixed in accordance with the value of the surrounding property. The iden of dispossession without compensation seldom or never presents itself to arown leaseholder. If, therefore, there is any hard ship in the Lau Kwai Fong case let the ouer be properly compensated, but the Goyern- ment would commit a grave error if it sanctioned the continuance or an obetrug tion at the
The lane. granting of an annual lease would be a very inadvisable expedient, as it would ou lay up difficulties for the future and to prevent improvements in the lane.
entrance to a
REPORTERS AT EXECUTIONS.
JUSTICE.)
THE NAM SHANG FIRM Y. HIP WAT LAM, TRADING AS THE YAU CHEONG FIRM. Platiffs, who are timber merchants carrying on business at 141, Taikoktsui, Kowloon, claimed $3,979/72, boing the balance due for goods sold | and delivered to the defendant, who is a con- trafor sad carried on business until recently
19, High Street, Hongkong.
Mr. Pollock (instructed by Mr. Gedge, of Messrs. Johnson, Stokes, and Master) appeared for the plaintiffs. The defendant did not appear, nor was he represented by counsel.
January 19, 1898. ]
r. Francis-I did not, else I should have ked before. It was not until I was finally paring my argument that I noticed it. The Chief Justice (after conferring with the Paine Judge)-We both agree that the refusal ar neglect to perform the duty assuming the duty exists-is implied in the form of the estion, but if the plaintiffs wish it we see e objection to stating it more expressly. Therefore we will inseri the words "And uming that the defendant has refused or Pgiveted to perform such duty, is the duty are of which the Court, having regard, &o.”
The Attorney-General-I can only say that strongly object to this sudden alteration at the last moment.
The Chief Justice--Mr. Attorney, we have aled on the point. When we have ruled on a eint we cannot hear yon further.
The Attorney-General-You have not heard me at any length. I certainly must protest gainst this point--
The Chief Justice-It is not correct when the Court has ruled that counsel should get up and protest against the ruling.
The Attorney-General- Would it not be ficient to say assuming that the Governor That would raise should refuse or neglect P
actly the same point and would apply to any stion of the Governor in the future.
Mr. Francis-I sabuit it is beyond the jurisdiction of the Court to try that question.
The Chief Justice-I do not think there is any real difference. The assumption is purely hypothesis and will not affect the merits of
the case.
In reply to his Lordship Mr. Francis said he as afraid his arguments would last a consider- Fable time.
be tried before the Full Court. The issues it the question of law, as settled by the Chi Justice, were as follows:-(1) Assuming that the property or business of the plaintiff's has a fored depreciation or been injuriously affected by reason of the works authorized by tho Preval Reclamation Ordinance, 1889, does the said O dinance throw any duty on the defendant t
The Attorney-General-It is very probable inquire into and assess the amount of such
that long before this case gets very much depreciation or injurions affecting ?
further we shall have a new Governor and the such a duty is thrown on the defendant is Praya will be a long way in front of the plain of which the Court, having regard to the ptiffs' premises and he will have his daruages ns- essed, as was the intention of the Government. visions of the said Ordinance, can properly a force the performance by a writ of mandan Mr. Francis-We do not believe in any Counsel asked their Lordships' permission të
intentions except when they are expressed in
the words Praya Reclamation Ordinar slightly amend the first issue by adding after writing. I may say that the plaintiffs asked if the Government intended to extend the land and the Government refused to give them any 1889," the words "and assuming that the i vernor has refused to investigate the plaintiff, claim." He did not think the case could bl properly argued out without having th amendment made, and he was particula desirous to have it strictly regular "because if was the intention of the plaintiffs to earl In view di the case as far as possible. possible appeal he was very desirous of haring the issues as carefully framed as possible. must be assumed for the purpose of the argT: ment that the plaintiffs had suffered some At this point Mr. M. W. Slade (who was injuries, and it must also be assomed that thị structed by Messrs. Deacon and Hastings) said Governor had refused to perform a duty whi he appeared for two of the garnishees, Father plaintiffs alleged was incumbent on him. Torres and Mr. W. Danby, who had no pro- perty liable to attachunent in their hands,
Mr. Pollock said the plaintiffs from time to tendant, who made occasional payments, and time supplied goods and paterials to the defen- Jalances were struck. There was now owing to the plaintiffs the sum of $3,979.72. At the time of the issue of the writ the defendant had got into pecuniary difficulties and absconded | from the colony. A writ of foreign attachment was obtained against him and the present pro- ceedings were taken nuder that writ. Counsel proposed to proceed with the examination of the garnishees and to ask bis Lordship what property, movable or immovable, was subject to attachment under the writ, and to then ask for extion to issue.
The question of the admission of repre sentatives of the press to execptions has been engaging the attention of the Institute of Journalists and it was decided some time ago to appeal to the Home Secretary to lay down a upfform rule ou the subject. At present the prac- tice varies in different gols: in some re- porters are not admitted at all, in others one only is admitted, and if others a number are admitted. The duty of attending executions is a disagreable one of which the reporters are no doubt glad to be re- lieved, but on grounds of public policy it seems expedient that they should be allowedl to be present. The reason of the change from public to private executions was to do away with the demoralising influences atten- dant upon the drawing together of a big crowd to witness the death of a fellow crea- ture; but it was not intended, we believe, that a feil of strict secrecy should be drawn over what actually ook place in connection with the event. Sensational and morbid descriptions are of course undesir able and from that point of view there may be something, to be said in favour of the exclusion of the Press, but on the other hand the presence of spectators not belong-
Mr. Pollock objected to his friend appearing. The plaintiff had certain admissions that certain money and materials belonging to the defendant were on the premises of the garuishees. If the garnisheer intended to set up some title in the moncy and materials they should have put in a claim to the property.
His Lordship thought the best course would be for the plaiuting to prove their original claim first, and the question of the garnishees could be dealt with if the claim was established.
01
Mr. A. Brown, Assistant bailiff, spoke to serving copies of the writ of foreign attachment the garnishees, ho are the Humphreys Estate and Finance Co., Limited, Messes, Palmer and Turner, Reverend Father Torres, and Mr. W. Danby.
Jndyment was given for the plaintiff for the amount and costs.
The Court then granted counsel power to examine garnishers.
Mr. Clement Palmer was exhuired. The Court determined that any sums due unter the contract with Humphreys Estate and Finance Co. were subject to attachment, and gave leave to issue execution in respect thereof, the writ as regards the other arnishees
to remain subsisting.
The Court then ädjourned.
|
The Attoruey-General said he must strongh object to such an amendment being made. He would be sorry to see put on record an assur tion that the Governor had not done his dis That was one of the issues of fact which would bare to be argued if the Court was of epile that a mandarins could issue. Their Lordshi on Saturday said that the parties should the suggest any alterations, but uono were g gested. The amendment was quite unneceENNJ for the purpose of the argument, which w purely on questions of law and not of fact.
The Chief Justice-I think, Mr. Franes that the refasal is implied in the form of t question.
Mr. Francis-Has your Lordship not what the Attorney-General has just said, the he has come here prepared to argue those qua i tious of law on the assumption that the Gore had not neglected to perform his duty T is exactly what I anticipated.
The Attorney-General-We have come je to discuss the legal aspect of two issues of h Now my friend wants one of the issues suddenly altered. It is not fair and it is not right.
The Paisne Judge-Mr. Francis, why you not suggest that alteration before P
Mr. Francis Woll, my Lord, it escaped fi notice.
The Chief Justice---You did not think di in time P
answer.
The Attorney-General---Now we are going into the facts of the case.
The Chief Justice You had better procerd with your arguments on the points of law, Mr. Francis.
CHINA OVERLAND TRADE REPORT.
273
37
the powers, whether discretionary or otherwise, Mr. Francis said primarily the Ordinance which were given to him, he was bound to pro- was passed for the benefit of the colony, but ceed judicially. Plaintiffs contended that that the reports of the meetings of the Legislative discretion must be exercised not arbitrarily but Council and the public meetings would show in strict accordance with right and justice and that the Ordinance was really passed for the established precedent; that, broadly, when any benefit of the Marine lot-holders and that the Go- Act of Parliament-in the present case the vernment had to spend nothing on the works. focal Ordinance or any act of a competent The public of the colony had to spend nothing Legislature, coufers authority to do any judicial except in respect of lots of land on the old or any other act which the public interest or Praya which were actually owned by the Gor- individual right might demand it was im ernment. The whole cost of reclaiming the perative on those so authorized to exercise that buildable land. of constructing the sea walls authority when a ense arose, that the power and dreins--the whole work from beginning was given for the benefit not of him to end was paid out of the pockets of the who was invested with it, but for those Marine lot-holders who signed an agreement for whom it was exercised, and that that duty and not out of any other pocket whatsoever. was positive and absolute and not merely dis- Plaintiffs asked for a mandamus, which would cretionary as to the question whether he make the Governor investigate their ease and should or should not exercise it that although make an award. The result of the award was the method in which the power was to be of course beyond the control of the Court. exercised and the most absolute discretion as to The Chief Justice-You contend that the the result might be invested in the person on Court can enforce the Governor to wake an whom that power had been conferred, the duty of exercising the discretion was imperative, In this case the only possible remedy, if such a duty was imposed on the defendant, was by mandamus. Lastly, the plaintiffs contended that the Ordinance gave power or imposed an obligation on a particular person to do some particular act or duty and provided no specific remedy for non-performance, and that the Court had no more power to refuse the remedy of mandanus in this case than it had to refuse any other remedy that might be rightfully claimed. These were the points, said counsel, on which the plaintiffs relied and which he would have to develop at considerable length.
The Chief Justice-I suppose you dis- tinguish between a legal duty and a moral duty?
it was
Mr. Francis said he certainly did. The power was conferred on the Government for the benefit of some members of the public. When an Act of Parliament conferred a power to be exercised by any particular person for the henefit of either the public in general or some particular persons, that Act imposed upon him the exercise of that power in a special case. How he should exercise it might or might not be discretionary in accordance with the provi. sions of the law that imposed the duty, but that he should exercise it when properly applied to by a proper person was, according to plaintiffs contention, absolutely imperative. Counsel submitted that no matter how wide the discre- tion invested in any person in matters relating Mr. Francis said he was afraid his argu- to the publio in general or to any section of the ments would extend to some considerable public, the Court would always, if the discretion length. Ife proposed first of all to indicate had been abused, investigate it and set it right. very shortly his contentions on both points. Plaintiff's were the bolders of the Crown First as to the construction of the Orland, Marine Lot No. 184, and the provisions in dinance he submitted that the rule laid down the Crown lease would be absolutely meaning in "Maxwell on Statutes," page 49. must be less unless
the intention of the applied. He and his learned friend greatly Government to give the plaintiffs compensation differed as to the interpretation to be put upon in respect of the Praya Reclamation works. the words of section 7 and therefore the duty The power to assess the compensation did not rest with the Governor but with the Surveyor- of placing an interpretation upon them was un- fortunately in this case imposed upon their General. Of course counsel know that the Lordships. It was contended on the part of Praya Reclamation works were really a public the defendant that that sub-section of the necessity, but it was a reclamation in the inter- Ordinance, read in conjunction with the whole ests and for the benefit of Marine lot-holders of the Ordinance, imposed no duty on His and no-one else, and it was only for the benefit Excellency the Governor in respect of claims of those holders that the powers were given. arising out of the process of the Iraya Ro-14 was the intention of the Legislature that no olamation Works, and that as there was no injury should be inflicted on any private person duty imposed upon him by law therefore this in consequeuse of the works, and the Ordinance Court had no power or no jurisdiction to make had provided that compensation should be paid any order against him requiring him to give in case of persons injured In carrying out effect to bis obligation as imposed by that see- these works plaintiffs had lost some of their tion. The contention on behalf of the plaintiff's rights; their property had been relegated to the Was that the Ordinance clearly deprived them position of a Marine Lot in a back street. Pro- of all other remedies in respect of any loss or visions were made in the Ordinance for com- depreciation they might suffer in regard to penating owners or persons injuriously affected their property arising out of the Prays Re by the works. The amount was estimated after clamation works except what were provided by investigation and detailed reports and that the Ordinance itself." The plaintiffs submitted amount was included in the estimates and that the Ordinance clearly empowered the authorized to be paid under the Ordinance for Governor to give compensation to all persons all losses and injuries suffered by any persous injuriously affected by the works. Plaintiffs where wharves or piors or rights were in any contended that if that was so the daty was way disturbed. Counsel then went very length necessarily imposed on him in every fit and ly into an analysis of the Ordinance, which proper case of exercising that power. If he he said was about as stupidly framed as an Or-
as empowered to give compensation it was dinance could be. an indisputable requirement of justice that he should bear both sides, giving each an oppor Sanity of bearing what was urged against the other, or in other words, before he could use
The Fuisue Judge--I may be wrong, but I always thought that the Ordinance was framed for the benefit of the colony and not for the benefit of the Marine lot-holders.
award?
Mr. Francis submitted that the Court could order an investigation, although in the end the award wight be that plaintiffs had suffered no injury at all.
The Chief Justice-It seems to me that the plaintiffs are fighting for a shadow.
Mr. Francis-We hare the most implicit belief that if the matter were properly inquired into there would be no difficulty whatever in grauting compensation, and it would be found we were fighting for something substantial. Counsel had not concluded his arguments when the Court adjourned.
HONGKONG SAY
JVARY BOARD.
A meeting of the Sanitary Board was held on 13th January at the offices. Hon. F. H. May (Captain Superintendent of Police) pre- sided and there were so present Ilon. R. D. Ormsby (Director of Public Works). Dr. Clark Medical Officer of Heal), Mr. N. J. Ede, and Mr. H. McCallum (Secretary).
MINUTES. The minutes of the previous meeting were read and confirmed.
MORTALITY ƒETURNS. For the week ended t January the death rato was 18.7 per thousand per annum, as against 15.8 for the corresponding period of last year. For the week ended 8th January the rate was 18.3, as against 20.9 for the corresponding week of last year,
THE OBSTRUCTION OF RIVATE LANE
An application having en made for the renewal of a lease of property in Lan Kwai Foug Lane, the Medical Officer of Health wrote objecting to the application being granted as the property obstructed the entrance to the lane. The Director of Pulfic Works was in favour of the renewal, as there was enough light and air in the lane aud verf little obstruction.
A discussion ensued.
The MEDICAL OFFICES OF HEALTH-I am
afraid the Director of Fuble Works is not aware that for the past eighteen months this Board has been strenuously fighting for the passage through the Legislative Council of a by-law prohibiting the obstruction of private streets aud lanes. That by law has quite recently been passed. The opposition to the by-law came not naturally perhaps from property owners and their representatives and he sole argument against the by-law was, I believe, that the pro party owners would, in future, be deprived of the rentals which they might derive from such buildings built at the entrance to these streets and lanes. The arguments of Board on the other hand, in favour of the by-w, were that the baildings obstructed light and air and were detrimental to the health of the people living In this particular case it is not in such streets. a property or ner but the Government who will derive the befit of the rents from the obstruc- tion to the lane, and if the Board were to recommend that this applicou be granted it will certainly have the appearance of stultifying its action during the past eight months, for it would certainly lead weight to the assumption that although the Board object to property owners deriving rents from obstpletion to streets and lanes there is no objection to the Government themselves doing so. That can hardly be deemed a wise policy for this Board to fapt with regard