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before the debtor left, and that as his address was known in Canton, it was not a case of absconding, and that the proper course was for the plaintiff to take proceed- ings personally (I assume that this means without the Consul General's interven. tion) before the Chinese Courts.
43. As this was a debt which had not been sued for in the Hongkong Courts no possible objection can be taken to the decision as an interpretation of the Article. But the objection arises from the fact that, apparently, the same limited interpretation of "absconding" would seem to be applied in the case of judgments-at least there is no trace of any other rule. This therefore limits the Consular assistance in the case of judgment creditors to eases where the debtor absconds inmediately after judgment, and where the address in China is not known. I assume of course that the Consul General in the case of a judgment creditor would not enquire in the same way into the absconding with regard to the original debt.
44. If the interpretation of the Consular rules is correct, a very large number of judgments do not fall within the scope of the Article. Among them the principal classes are judgments by default against absent defendants who have no property in Hongkong, or who have removed it. The mere statement of the case shows that the Article as interpreted by the Consul General with the approval of the Government is lamentably deficient. I have already shown that, even with the widest interpretation it is still deficient.
45. I must note before passing to another subject, that the advice given by the Consul General [in M. P. 4203 of 1905] was not in accordance with the Code of Civil Procedure of Hongkong. The obvious course for the applicant to take was to sue in the Hongkong Courts, obtaining leave to issue a writ against the non-resident defendant in Canton under section
46. It is unecessary to elaborate this point at any greater length. The fact is patent that while, under Article 23, some relief is afforded by the Consular inter- vention in the case of some trade debts, unnecessary restrictions are imposed in the way of affording similar relief in the same limited number of cases where the creditor has obtained judgment; but that judgment creditors as a class do not get any special relief at all. I am of opinion that it is absolutely essential to provide such relief.
47. In my first letter I said that "the absence of any effective protection to judgment creditors must be to re-act prejudicially on commerce; 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."
My experience of the Courts in the Colony has not been long; but it has been sufficiently long to enable me to add with absolute certainty, that there is a large class of Chinese traders in the Colony who carry on their business on lines admirably adapted to the deficiencies of the legal system based on Article 23: who go on so long as there is profit or hope of profit, who bring very little property into the Colony, and send out of the Colony as much as they make to the security of Canton; and who put up their shutters and go so soon as things appear to be turning against them.
48. The minute of the learned Attorney General covers so much of the same ground as that of the Colonial Secretary, more especially where he says "it is diffi- cult to conceive what more can be done in the direction of providing for the exe. ention in China of the judgments of the Hongkong Courts than is provided in the 23rd Article." This point has already been fully dealt with. I did not of course intend to propose that "a Hongkong judgment should be forthwith executed in China by a Bailff of the Supreme Court."
In the paragraph of this minute which deals with the proposal that the prac- tice should be amended by substituting a request from the Supreme Court to the Chinese Court to execute a judgment, the learned Attorney General has, I think, misconceived the scope of any suggestion, which is that some means should be
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provided by which all judgments can be more readily executed than they are now. The first step in such procedure should be the issuing by the Supreme Court on the application of the judgment creditor of a request that the judgment, a sealed copy of which would be attached this night or might not be addressed to the proper Court of the district in China where execution is required (Article 4 of the McKay Treaty recognizes the existence of proper Courts in China; sec para. 25 above.) There would not be the slightest objection, in fact it would be better, that this request should be presented through the diplomatic channel of the Con- sul General. Further, this request in the hands of the judgment creditor, issuing from the Supreme Court, would itself be sufficient guarantee that the claim was originally, and is afterwards, put forward in good faith.
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In the penultimate paragraph which begins "The British Consul it appears convinces me that on further consideration the learned Attorney General will share my views; for he allades to the practice of ordinary creditors applying for assistance to the Consul General as if it were exceptional, and not, as it now appears, the almost universal rule: and he also, as I do myself, dwells on the importance of there being in all cases a judgment of the Court.
With regard to the penultimate paragraph which deals with the alleged action of foreign Consuls interfering with Hongkong bankruptcies, I agree that if it is true, it indicates "diligence or diplomatic influence on the part of the foreign creditors or their Consuls superior to that displayed by the British". But as I have pointed out, it is in many cases illegal, in all unfair, and it is one which could well be adjusted by concerted action, such as in many other cases has arrange i interna- tional difficulties which re-act to the prejudice of British subjects.
I proceed now to state my proposals: it being well understood that I give the details in broad outline only, leaving them to be filled in hereafter.
As I have already indicated the fundamental change which I propose should be made in Article 23 is that the Chinese Government should grant all the assist- ance in their power to aid in execution of all civil judgments of the Hongkong Courts.
If it be thought advisable still to retain the recovery for debts for which no nction has been brought, the new provision could be treated as supplementary to, or explanatory of, Article 23.
The procedure to be adopted would be an application to the Judge in Cham. hers for a certified copy of the judgment, supported by affidavit setting out the reasons for the application, the existence of property in China to the best of the applicant's information and belief, together with its nature and position, and the probability of recovering it. The Court would then issue a letter of request to the Chinese Court (probably of the district in which the property is alleged to exist) to which the certified copy of the judgment would be attached. The party should then have the right to forward these documents to the Consul General, by himself or his solicitor, who would then forward them to the Chinese Court for action.
It would be distinctly understood in the stipulations of the new Article that the Chinese Court should act promptly, and that no defence or dilatory plea should be allowed.
The article should specially include the recovery of debts due to estates in bankruptcy, on the application of the Official Receiver.
It should also extend to calls against contributories in winding up companies, the liability to pay them being established by a judgment of the Court.
Lastly, efforts should be made to induce the other Powers to join in the agreement, so far as their own subjects are concerned who are resident or carry on business in Hongkong, and are parties to the judgment.
F. T. PIGGOTT.
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