CO885-(15-16) — Page 529

PUBLIC RECORD OFFICE

Reference :-

TTC.O.8

.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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Lordship would propose to communicate to Mr. Walker a copy of these documents and of all other documents which would be laid before the Board if and as soon as His Majesty in Council had decided that the case should be laid before the Judicial Committee.

That your Lordship would accordingly propose to request the Lord President of the Council, if he saw no objection, to lay the papers before His Majesty in Council with a view to obtaining an order that the case be referred for consideration to the Judicial Committee in order that His Majesty might be advised whether the decision of the Governor in Executive Council should be approved and the suspen- sion of the Chief Justice confirmed.

That Sir C. Lucas was to request us to take the above matters into our con- sideration and to report:-

(1) Whether we concurred in the course proposed by your Lordship? (2) If not, what other steps should be taken in the matter?

We have taken the documents into our consideration, and in obedience to your Lordship's-commands have the honour to

Report-

That we concur in the course proposed by your Lordship.

The Right Honourable

The Earl of Elgin, K.G.,

&c.,

&c.,

&c.

We have, &c.,

W. S. ROBSON. S. T. EVANS.

22719

No. 98.

(HONG KONG.)

LAW OFFICERS to COLONIAL OFFICE.

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[The Companies (Local Registers) Ordinance (No. 16 of 1907). Question whether the Ordinance is ultra vires of the Hong Kong Legislature.

Royal Courts of Justice, MY LORD,

20th June, 1906. We were honoured with your Lordship's commands signified to us in Mr. Antrobus's letter of the 1st May last, stating that he was directed by your Lordship to transmit to us a copy of an Ordinance, No. 16, of 1907, passed by the Legislative Council of Hong Kong to enable companies registered under the Hong Kong Companies Ordinance, 1865, to keep local registers of their members outside the Colony:

That the despatch from the Governor (of which a copy was enclosed), in which he submitted the Ordinance for the signification of His Majesty's pleasure, gave the reasons which had led to the enactment of this law, and that the enclosed copy of an extract from a report by the Acting Crown Advocate at Shanghai would explain how it was that a number of companies operating in the Far East were registered under the laws of Hong Kong although they carried on little or no business in that Colony.

That it would be observed that the Ordinance provided that the Governor in Council of Hong Kong might issue an annual licence to a company whose objects comprised the transaction of business outside the Colony, empowering such company, if authorized to do so by its own regulations, to keep in any place outside the Colony, at or near which a principal part of its business was carried on, a register of its members, and shares so registered in a local register were exempted from Hong Kong probate duty and from stamp transfer duty unless the transfer was executed within the Colony. That provision was made as to the manner in which such local registers were to be kept, and that the Governor in Council was empowered to make rules and regulations on the subject. That for the breach of any of the provisions of the Ordinance, or of any rule or regulation made under it, a company was liable to a penalty not exceeding £50 for every day during which it was in default, and that a company which was found to be keeping a local register without a valid licence under the Ordinance might be struck off the register and thus dissolved.

That it had been suggested to the Secretary of State that the provisions laying down the manner in which a company registered in Hong Kong should perform certain acts outside the Colony were ultra vires of the Hong Kong Legislature. That the Ordinance was based on the Companies (Colonial Registers) Act, 1883, and that it was questionable whether an enactment of that kind which was, of course, within the competence of the Imperial Parliament was also within that of the Hong Kong Legislature.

That by Royal Letters Patent the Governor of Hong Kong, by and with the advice of the Legislative Council, was empowered to make laws for the peace,

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order, and good government of the Colony"; and that, except where they were specially bestowed upon it by the Crown or by an Act of Parliament of the United Kingdom, the Legislature of Hong Kong did not possess any power of extra-terri- torial legislation.

That on the other side it might be urged that the provisions of the present Ordinance were not made enforceable by action beyond the boundaries of the Colony, and that as a Company registered under the Hong Kong Companies Ordi- nance of 1865 was absolutely a creation of the Hong Kong Legislature, that that Legislature could legally impose any conditions it pleased in return for the privilege of incorporation. That it might not be able to enforce them by action outside the Colony, but that it might be contended that it could lay down what must be done by a company within or without the Colony, in order to obtain or retain recognition of its corporate character by the Hong Kong Courts, while as a company registered in Hong Kong was required to have a registered office within the Colony it must

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