1940-01-05 — Page 9

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▲ THE CHINA MAIL, JANUARY 5, 1940

CHINESE LAW UPHELD

Appeal Dismissed In Ching Kee Steamship Case

FALLACIOUS ASSUMPTION IN APPELLANTS' CASE

THE APPEAL AGAINST THE decision of the Chief Justice, Sir Atholl Macgregor, granting the petition of the China Merchants Steam Navigation Company for the wind- ing up of the Hong Kong Branch of the Ching Kee Na- vigation Co., was dismissed by the Full Court of appeal, composed of Mr. Justice R. E. Lindsell (president) and Mr. Justice J. A. Fraser, this morning.

Mr. H. G. Sheldon, K.C., and the, matters. Hon. Mr. Leo d'Almada, Jn., instruct-selves seem to have recognised that Indeed the appellants them- ed by Mr. H. J. Armstrong, of Dea- Chinese law had not ceased to run cons, were for the appellants, while in Chefoo and Shantung since they the respondents were represented by appealed to the First Divisional Court Mr. Eldon Potter, K.C., and Mr. H. of Szechuan (at Chungking) against C. Macnamara, instructed by Mr. D. the order of the Chungking District L. Strellet.

Court.

Mr. Justice Lindsell in the course of his judgment said: This is an ap- peal against an order made by Sir Atholl Macgregor, C.J., in these pro- ceedings directing the winding up of the Ching Kee Steam Navigation Company which is an unregistered company within the Companies Or- dinance, 1932, but is incorporated un- der the laws of the Republic of China with headquarters at Chefoo in the province of Shantung and has (or had) a branch office in the Colony.

ENGLISH LAW

Field-Marshal Goering, recently declared to be "in disgrace," now appointed Nazi Economic Dictator.

any

members of this company to obey the lawful order of a Chinese Court.

We cannot assume without evidence that the Japanese authori- ties have interfered, or would inter- fere, to keep this company alive In spite of itself or against the will of its members, or that those authori- ties would do anything to prevent the members of the company resorting to the Chinese Court as they have in fact done.

GLASS, IRON JUST A

MEAL TO HIM

There's a British Tommy "some- where in Wales" who believes he

could chew his way through the Siegfried Line, and all Hitler's bay- onets couldn't stop him, either.

The fellow who's going to give the Nazis a No. 1 headache is Private Wally ("Human Ostrich")

well known on the stage.

Haylock,

He is known in London theatrical circles as the "Iron Duke." Haylock can chew up gramophone records, electric light bulbs, glass tumblers, Iron and" china ware, ΓΑΣΟΝ blades, and trifies like that, and awal- low them with the aid of a swig of water.

He can stick needles and nails into his head, push knives through his muscles, cut his limbs open and then sew himself up with needle and thread without feeling any pain.

X-rayed at St. Mary's Hospital, Pad- Doctors and scientists are puzzled. dington, he wdg found to possess hospital authorities insured his body phenomenal gastronomic powers. The

and awarded him a pension of £2 a week for life.

Even if effective military occupation were indistinguishable from "de facto" sovereignty, there is the clearest pos- sible authority for the proposition that it is not for an English Court to declare that a state of "de facto" sovereignty exists or existed at any given time, unless it has received an authoritative communication to that

It has been said in this case that effect from one of His Majesty's

the Chinese Courts, in making their

As soon as he leaves for active ser- Principal Secretaries of State (or in order, have purported to exercise ex- a Crown Colony from the

vice abroad he will forfeit the £2 a Colonial tra-territorial judisdiction

in Shan-week, because the hospital cannot be Secretary). Recognition of "de facto" | tung. That however is not the case. sovereignty is an Act of State, and The Chinese Courts were dealing with which they want for

sure of the recovery of his body, a company incorporated in China and poses, in the event of his being killed research pur- not in Shantung, which has no separ- in action. ate law of its own, and there is nothing in this case to show that, except where for special purposes the company is treated as an enemy, its character is in any way altered by the Japanese occupation.

GROUNDS OF PETITION

The facts are fully set out in the judgment of the court below and it is only when each sovereignty is need not be recapitulated. The ap-recognised by His Majesty the King plication for winding up was based as head of the State that his courts on three grounds, on each and all will give effect to the legal rights of which the learned Chief Justice that arise from the establishment held that the petitioners (the present respondents) were entitled to succeed, Those grounds were:-

1. That there had been a winding up order made by a Court of com- petent jurisdiction in the courtry in which the company was incorporated, -and-as-a-result-of-that-order, the corporate powers of the company had been destroyed in that country.

2. That the company had in fact ceased to carry on business in the Colony.

thereof. In case of doubt, a court can apply to a Secretary of State for the necessary information.

re-

Here, although the appellants hold many more shares than do the spondents, the business of the (Hong Kong) branch cannot possibly be carried on except to the jeopardy of the assets, or else under the control of Japanese agents whose appoint- ment as such was not only vold but illegal under the laws of China.

For these reasons and for reasons

ONUS ON APPELLANTS

SHARP

A Chinese Court, duly appointed SENTENCES

ALLEGED "TELEPHONE- THIEF, ARRESTED BY W. G, MORRISON IN

according to the law of China, has ordered the dissolution of the Com- pany. The onus is on the appellants AN to show that that court had no juris- WIRE" diction. Their argument is based first- DET.-SGT. ly, on the military occupation of Che- TAIKOKTSUI, WAS CHARGED THIS foo, where the jurisdiction of invader MORNING BEFORE MR. E. HIMS- is limited to military necessity, and WORTH ON 13 COUNTS OF LAR- 3. That it was just and equitable given in the judgment of the Court secondly, on the fact that the com- CENY OF WIRE FROM DIFFERENT that the company should be wound below, I am satisfied that the wind-pany for some purposes is deemed to up since its substratum had disappearing up order herein was rightly made have acquired an enemy character. ed and as a shipping concern it was and that this appeal should be dis- They have falled to discharge the quite unable to carry on legitimate missed with costs.

onus and failed altogether to show business.

that a corporation cannot be dissolv- MR. JUSTICE FRASER'S FINDING ed at any time in the courts of the country of Its incorporation. There are, in addition, equitable grounds on which the branch in Hong Kong may be wound up.

In my view this appeal must dismissed with costs.

NEW LINE OF ATTACK

Each of these grounds has been assailed (as in the court below)

by Mr. Sheldon on behalf of the appel- Lants but the spear-head of his at- tack has, with our permission, been now directed along a new line and has been aimed at the competency of the Chinese Court concerned to order the winding up of the Company in China not so much on account of the Court's inability to enforce its order as because, the province of Shantung being occupied by the Japanese mill- tary forces, its jurisdiction no longer extends to that part of the country but has been ousted by the fact of such occupation.

no

said:

Mr. Justice Fraser, his judgment, Military necessity cannot justify the voluntary acts of private persons and so cannot warrant the refusal of

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Det.-Sgt. Morrison said the public was caused much inconvenience, be well as the Telephone Company who had to pay heavy expenses for repair.

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