Enclosure 2.
CONFIDENTIAL.
€ 0.274 23817
Rece
TREG 2 JUL 06
CORRESPONDENCE RELATING TO THE EXECUTION OF THE CIVIL
JUDGMENTS OF THE HONGKONG COURTS IN CHINA.
No. 1.
23780
JUL 13 906)
HIS HONOUR THE CHEF JUSTICE TO HIS EXCELLENCY THE GOVERNOR.
Supreme Court, Hongkong, 7th July, 1905.
Sm, With reference to the letter I have already addressed to Your Excel- lency on the question of amending the law as to executing civil judgments by imprisonment, I beg to suggest that the matter be allowed to remain in abeyance for a short time. I have, since writing the letter, come across other articles of the Code of Civil Procedure which deal with cognate subjects, and it seems better that I should report to Your Excellency generally on the subject of civil procedure as it affects Chinese debtors. There is much in the law as it now stands which seeius to me to require serious consideration.
2. There is however one subject to which I propose to draw Your Excellency's attention at once, because the method of dealing with it, if my suggestion is approved, must necessarily be more complicated than an amendment of the Code of Civil Procedure. The question is whether greater facilities should not be obtained from the Chinese Government for executing the civil judgments of the Hongkong Courts, than is provided by Article 23 of the Treaty of Tientsin.
3. The question of entering into conventions with foreign countries in order to obtain the mutual execution of judgments bas for a long time engaged the attention of the Foreign Office, but it has so far not been found possible to deal finally with the subject. This however is no reason why the execution of Hong- kong judgments in China should not be dealt with independently. The cominerce of Hongkong, in so far as it is conducted with the Chinese, is subject to peculiar difficulties. There are a very great number of Chinamen carrying ou business in the Colony their native country lies within easy reach of them: and the moment the fraudulent intention enters their mind, the night-boat to Canton affords a speedy means for effecting a retreat, and evading the process of the Court.
4. The absence of any certain means of obtaining execution of the judgments of the Courts of the Colony in China has led to another most unsatisfactory result. Chinese defendants in a large number of cases, do not enter an appearance to writs of summons, allowing judgment to go by default. For a large part of their pro- perty is kept out of the Colony, and so no execution can be effected against it. This, however technical the subject may appear, must re-act on commerce in a most practical way; for a man who has no property in the Colony: who cares little whether a writ be served on him or not, naturally enters the more recklessly into engagements, which, if the result be unfavourable to him, he has not the slightest intention of performing.
5. The proximity of Canton thus enables dishonest Chinamen to reduce to a nullity the process of the Courts, not merely by evading personal service of docu- ments, but also by keeping the bulk of their property in, or by removing it to Canton. Plaintiffs obtain judgments which are practically useless, because they cannot obtain execution either in the Colony or in Canton.