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It is here contended that the Chinese courts had no jurisdiction because, it is said, the administration of Shan Tung by the Chinese has been replaced by the military jurisdiction of the invaders, the allegiance which the company formerly owed to China has been displaced in favour of an allegiance to Japan, and the company has now acquired an enemy character which would remove it from the jurisdiction of the Chinese courts even if in fact they were able to enforce their judgment that the company be dissolved.
Despite that judgment, it is said, the company still has in fact a corporate existence and is carrying on business in Chefoo, and therefore there is no ground on which the branch of the company in Hongkong can be wound up under section 313 (1) (b) of the Companies Ordinance, 1932 (No.39).
It is said by counsel for the appellants that in the contemplation of a neutral (British) court the company is perfectly entitled to trade with Japan.
For some purposes, indeed, it seems that the company has acquired enemy character. Chefoo is in the actual possession of the Japanese forces. The produce of Chefoo and the property of the company in Chefoo would be regarded by the Chinese as enemy property and so liable to seizure. The nationality of the occupied territory of Shan Tung as regards property is no doubt Japanese.
The position of the company is analogous to that to which Lord Lindley, in Janson v. Driefontein Consolidated Mines, Limited, (1902) A.C., at page 505, was referring when he said -
"When war broke out the company became an alien enemy of this country . . . although almost all its shareholders were resident elsewhere and subjects of other countries".
Commenting on this statement in Porter v. Freudenberg, (1915) 1 K.B.,857 at page 868, Lord Reading, C.J., said -
"Lord Lindley's statement was not intended to be, and is not, exhaustive. His Lordship, for the purposes of the appeal then before the House of Lords, was considering the character of a trading corporation and did not purport to deal with persons residing but not carrying on a business in the enemy territory. Such a person is equally treated as an alien enemy, provided he is voluntarily resident there, having elected to live under the protection of the enemy state. For the purpose of determining civil rights, a British subject, or the subject of a neutral state, who is voluntarily resident or who is carrying on business in hostile territory is to be regarded, and treated, as an alien enemy and is in the same position as a subject of hostile nationality resident in hostile territory".
And in The ASTURIAN, (1916) P., per Sir Samuel Evans, on page 153, we find the statement
A
"The simple fact upon which the decision of the
court depends is that the goods claimed were the produce of land owned or held by the claimants in an enemy country".
The