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As Your Excellency points out, such concessions could not be acceded to: and I think it is clear that if the question of revision were raised the result would be endless discussious leading nowhere, which would delay, and perhaps indefini- tely postpone, the accomplishment of the much-needed reforms which I have in view. I am therefore in entire agreement with Your Excellency that it would be better to consider how far these reforms may be arrived at by other means, and for the present, at least, to be content with this.
3. The first point on which Your Excellency desires information is as to whether it is advisable, should my proposals be adopted, to allow the old procedure to continue, under which Consular assistance is given to persons in Hongkong to bring their claims before the Chinese Courts or authorities when they have not sued them in the Courts of the Colony. The rules which govern the practice are set out in paras. 14 to 20 of Mr. MAY's Minute. They do not seem to have been very carefully thought out, but are, so far as I can see, derived from the action which has been taken on different cases as they have arisen. I gather from them that where the person alleging himself to be a creditor is a British subject not of Chinese race, the Consul General assists him, after a preliminary investigation, by pressing the claim before the Chinese Authorities, the interpo. sition of the Chinese Courts not being required.
4. This procedure seems to me to be open to many objections in addition to those mentioned in my previous Minute. One of them needs specially to be emphasised. If Great Britain sanctions the non-judicial interference of our Con- suls in the recovery of debts we cannot object to the interference of the Consuls of other nationalities for a similar purpose; and it may then become a race in which the quickest or most pertinacións Consul wins. This question, as I have pointed out, is of great importance in Bankruptcy, and may give rise to complications should the Hongkong Courts subsequently be called upon to protect the bankrupt's estate for the benefit of the creditors generally. It may not be without import- ance in civil proceedings.
5. I gather further that the privilege of Consular assistance is given to British subjects of Chinese race only subject to conditions more or less dependent on an uncertain, and it would seem varying, interpretation of the language of Article 23. In some cases it would appear that the claimant is required to go before the Chinese Courts. The reason for this distinction between British sub-
jects of, and not of Chinese race is not very apparent. Para. 18 of Mr. Mar's "Minute gives an explanation which can hardly be called sufficient or satisfactory.
6. I gather lastly from para. 6 of Mr. Mar's Minute that these conditions apply also to foreigners. I presume therefore that it is thought proper for the British Consul to take up the claim of a foreigner resident in Hongkong who has not sued it before the Courts of the Colony.
7. In accordance with the wish expressed in para. 7 of Your Excellency's letter, I have ascertained in a confidential manner the views of the profession on the question whether this old procedure should be allowed to continue side by side with the new practice should it be adopted. It is clear to me, both from the letters I have received from some of the Solicitors, and also from conversations I have had with others and with the two King's Counsel, that although they are thoroughly dissatisfied with the present state of affairs, the majority of them think that it might be inconvenient to abolish the existing procedure. Mr. BOWLEY, the Crown Solicitor, has written a very cogent memorandum advocating its aboli- tion. I am in complete accord with much that he says: but after giving the matter my best attention, I have come to the conclusion that, for the present at least, the more important object to attain is the introduction of the improved methods for invoking the assistance of the Chinese Authorities, and that the old procedure may be left to take care of itself. In this connexion I must not omit to note that the old procedure would certainly be useful in cases in which, the cause of action not falling within the provisions of Section 42 of the Code of Civil Procedure (Order XI of the English Rules), action could not be brought in the Hongkong Courts. It seems to me doubtful however whether in such cases it is expedient for Consular assistance to be given except for the
of purpose pressing the Chinese Courts to hear the case speedily should suit be brought before thein.
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8. I proceed now to consider the procedure to be adopted should my sug gestions be approved.
If, as Your Excellency suggests, it were thought better to eliminate the formal request by the Hongkong Court to the Chinese Court, I should not press for its retention. Some formal document should issue from this Court on the application of the judgment creditor, and a "letter of request" would seem to be the most convenient procedure to adopt. But the forin of the order is a matter which may be settled hereafter. The important question which Your Excellency puts to me is, what instructions are to be given to His Majesty's Consuls ?
I think the instructions should be to the following effect
On receipt of the necessary documents (to be precisely defined according to the procedure ultimately adopted), either from the judgment creditor or his Solicitor, the Consul is to make such representations as he my deem necessary to the proper Authorities in China requesting them to enforce the judgment, a copy of which, together with a translation duly certified by the Court Translator, is to be banded to them. He is to point out that the debt, or other matter in dispute, has been arranged for by the Hongkong Courts" (using the Chinese equivalent for this expression as in the Treaty) as required by Article 23. In the event of enquiries being made or proposed by the Chinese Authorities, the Consul should insist that they are to be limited to questions of identity of the judgment debtor, and to the existence or non-existence of property belonging to him. Enquiries into the merits of the case should be discountenanced, and if they are insisted on, representations should be made to the Viceroy. In such event the Consul should point out that justice has already been done between the parties by the judgment of the Court.
If however the application to enforce the judgment is made within the appealable delay (6 months in Original Jurisdiction), and any question is raised as to the merits of the judgment, the Consul should point out that the remedy is by way of appeal to the Full Court of Hongkong. But if he is satisfied that no appeal is contemplated he should insist on execution of the judgment.
If the judgment has been obtained by default, and it is alleged that the judgment debtor was never served with the writ, or was ignorant of the proceed- ings, the Consul should point out that the procedure which has been followed is that prescribed by the Hongkong Code of Civil Procedure, and has been acted on with the sauction of the Court: and further that the principles on which this. procedure is based are recognised and adopted in Great Britain and throughout the Empire; but that if the debtor thinks that he has a defence, the Code (s. 302) enables him to take steps to set aside the judgment and submit the merits of his case to the Court. The Consul should in such a case recommend the debtor to put himself into communication with a firm of Solicitors in Hongkong. Should the debtor refuse to do this, execution of the judgment should be insisted on.
The Consuls themselves should be informed that the fact of the judgment having been given relieves them of the necessity of making any enquiries into the merits of the case, and is the best guarantee they can have that justice has been done between the parties. Further, they should be instructed not to enquire whether it is a case of bona fide absconding", nor to consider whether in their opinion the case falls within the precise terms of Article 28, and finally, that the application is made by the Solicitor of the judgment creditor is sufficient guarantee of his identity.
The Consuls should further be informed that the new procedure applies to all judgments of the Hongkong Courts, of whatever nature, and that it includes judgments for costs. Their attention should also be called to the changes in the Bankruptcy and Company laws, should they be carried into effect.
or to his
Any money, or other thing, received from the Chinese Court or Authority should be transmitted direct to the party making the application, Solicitor if the application is made by a Solicitor.
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