16
subjects are not. But, with all respect, the Colonial Secretary misses the
grava- men of the complaint. It is not a simple question of a foreign creditor passing by the jurisdiction of the Hongkong Courts for the purpose of recovering a debt due to him; the complaint comes from the Official Receiver in Bankruptcy, and it is to the effect that German creditors of a trader who has been adjudicated bankrupt by the Hongkong Courts, endeavour to get behind the jurisdiction of that Court, and recover their debts independently of the bankruptcy. They, like British subjects in Hongkong, are subject to the Bankruptcy Laws of the Colony, and what they do (if Mr. WAKEMAN's information is correct) is both a manifest injustice and an illegality.
30. I agree with the Colonial Secretary that in the last paragraph of Mr. WAKEMAN'S memorandum he has indicated the crux of the matter.
The object have in view is to put before the Government the necessity among other things of devising some means by which the Chinese Government can be brought to recognise the responsibility they have already undertaken in principle under the Treaty of Tientsin, but which they do not carry out in practice.
Mr. Wilkinson's Letter.
31. This letter deals with the question as it affects Chinese creditors. The Colonial Secretary in criticising it sets out the rules which are adopted by the Consul General in the case of applications by persons of Chinese race al- though they may be British subjects. I have already pointed out that in one case only in the Minute Papers annexed was the applicant a judgment creditor. I am under the impression that, although this case was the very one in which the Officer Administering the Government decided, accepting the Consul General's suggestion, that in future he should not take up cases sent by Solicitors or Chinese from Hongkong until they have been passed or enquired into by the Hongkong Government, yet the distinction between an ordinary creditor and a judgment creditor has been lost sight of, for such rules ought never to apply to judgment creditors of any nationality. They amount to provisions for ascertaining whether the claim is bond fide; they indiciate the procedure adopted by what I have termed an extemporised tribunal composed of the Colonial Secretary, the Registrar General and the Consul General; and would, if they were applied to the case of a judgment creditor be going behind the judgment of the Court, and therefore opou to the gravest criticism.
32. The only conclusion to be drawn from this part of the Colonial Secretary's minute is, however, that neither the Government nor the Consul General do draw this distinction between judgment and other creditors, in the case of persons of Chinese race even if they are British subjects; and further that British judgment creditors of Chinese race are subjected to rules which are not enforced against judgment creditors who are British subjects not of Chinese race: and this is precisely what Mr. WILKINSON complains of He however looks on the subject from the broader point of view of Chinese residents in Hongkong generally.
33. Now in the first place, I do not think that there can be any escape from the proposition that all British subjects, irrespective of their race, are entitled to the same protection at the hands of the British diplomatic agents abroad, and this more particularly so when their claim is based on a judgment of the Court.
31. The question of British subjects by naturalization in a colony presents so many difficulties that I do not think it necessary to complicate the present minute by referring to it.
35. The same remark applies to the rule that the Consul General will not receive applications from solicitors on behalf of judgment creditors who are British subjects of Chinese race: but insists on the introduction and recommendation to his good offices by the Hongkong Government. In the case of ordinary creditors · this is insisted on as a means of ensuring the identity of the person who presents
17
himself to the Consul General. But in the case of a judgment creditor this is quite unnecessary, as no one else could obtain a certified copy of the judgment, on which alone the Consul General should procecd. It is clearly right that the solicitor who has been in charge of the proceedings before the Court, should carry them through to the end. The costs are not likely to be appreciably heavier, as I observe there is even now a certain amount of correspondence with the solicitors, alf of which is charged for.
36. But as I have just said Mr. WILKINSON raises a wider question, whether the judgments of the Hongkong Court given in favour of Chinamen should not also be enforced under the Treaty, as it is, or as it may be amended. From what I have already said, it is possible, should the Treaty come to be amended, that an objection may be raised to the suggestion that the British Consul should act in aid of a foreigner, even though he is a creditor who has obtained a judgment in the Hongkong Courts. When we come to deal with judgment creditors who are Chinese (though not of British race) resident in Hongkong, the objection would take a somewhat different form. I cannot put the case in favour of the proposal to treat them on the same footing as British subjects of Chinese race, in any stronger way than Mr. WILKINSON does himself: beyond saying that I concur in his remarks, I do not propose to add anything farther to them.
37. I
propose now to point out briefly the defects of the Articles of the Treaty in its present form.
38. The language itself is open to objection at every point not merely on the ground that it is uncanonical, such for example, as the extraordinary phrase that the recovery of debts "must be arranged for by the English Courts on the spot": but also because where the meaning is more clearly stated, the words used are so limitative that they must inevitably lead to failure to give any benefit in certain cases which ought undoubtedly to come within the Article.
39. The most noticeable example of this is to be derived from the report of the Official Receiver in Bankruptcy, that the Consul General will not entertain applications made by him on behalf of the creditors, but insists on acting for the creditors individually. I presume that as the proof of debts by creditors in a bankruptcy proceeding is not specially dealt with by judgment of the Court in all cases, the view taken is that their recovery has not been arranged for" by the Court: obviously a narrow and unsatisfactory interpretation, though strictly speaking, just possible.
40. Again, why is the remedy limited to those natives of China "who repair to Hongkong to trade"? Granting that the remedy is to be limited to those China- men who incur debts in Hongkong, why should it be restricted to those who repair to trade, that is, traders who reside? Why indeed should it be limited to traders? Why should it not extend to these who come to Hongkong tempor arily, and not necessarily for trading purposes? Why should it not extend, say, to damages received for a tort committed by any Chinaman in the Colony? Again, why should it not extend to a successful defendant, for whom judgment has been given with costs ?
41. If the first part of the Article is unsatisfactory, the second part is still more >0. It begins but should the Chinese debtor abscond"-It is difficult to determine whether the absconding referred to is before or after the English Courts have arranged for the recovery of the debts. It may apply to both cases, and it appears to have been so interpreted. But then the word "abscond" of itself intro- duces a most unsatisfactory limitation in the application of the Article to judgment creditors; and the rule adopted by the Consul General limits it in this respect still further, because he will not act unless there is a bond fide case of abscond- ing."
42. The full meaning of this is illustrated by the case dealt with in Minute Paper 4203/05. The assistance of the Consul was applied for to recover money lent in Hongkong in December, 1904: the debtor left the Colony in April. The Consul General decided that as there was time to recover the money in Hongkong
282