1941-01-20 — Page 114

CHINA MAIL, PAGE 60.

1841

HONG KONG CENTENARY NUMBER.

Law And And

UPON the cession of Hong Kong

to Great Britain by the Treaty with China in 1842 the right was acquired by the crown of estab- lishing laws in the Colony; and by the first Charter of Hong Kong in April of the following your, it was provided that the laws then existing in England should be in force In Hong Kong, except so far as they were inapplicable to the local circumstances of the Colony or of its inhabitants. The local cir- cumstances necessarily rendered inapplicable certain laws then, and still in force in England; such, for Bistance, as the Mortmain Act, which, although the question of its appleability to Hong

Kong has never arisen in the Court of this Colony,

declared by the was House of Lords not to be appli- cable to any of the colonies, It would appear never to have been definitely settled by the Supreme Court of Hong Kong that imy particular statute or statutes in

in England, prur to 1843, has tre

ve no application to this Colony The question seems to have men but once, when two persons were convicted by the magistrate of the criminal offenes lebaniperly and maintenance. The defendants in this care ap- pealed to the Full Court agamust the maghtate's decision, and on their behalf it was argued, upon The strength of a judgment of the Privy Council, that the old Eng- hish laws with regard to cham-

and mamtenance, perty

which, though unaltered, had fallen int desuetude mn England, Wen 35 much inapplicable to the inhabit- ants of Hong Kong as, it was held in the case cited, they were to the inhabitants of India. The Full Court did not decide the point, but allowed the appeal om other greunds.

Supreme Court

In 1845 an Ordinance was pass- ed for the purpose of establishing a Supreme Court of Judicature in Hong Kong, whereby it was pro- vided, amongst other things, that the laws of England, and the prac- tice of the English Courts, should be in force. This provision extend- ed to the Colony all statutes which had already been enacted in England after April 5. 1843, as also all those which might in the future be passed, which could in any way be deem- ed not inapplicable to the local circumstances of the Colony. The inconvenience of this, particular- ly in those days when it took so lung a time for communications from England to reach Hong Kong, was manifest; and, therefore, in the following year, by Ordinance No. 2 of 1846, it was provided that such of the laws of England only (except in so far as they should be inapplicable to the circum- stances of the Colony and its in- habitants), and such portion of the practice of the English courts, as existed on April 5, 1843, should be in force in the Colony from thenceforth. However, although many statutes of importance were enacted in England after 1843, the provisions of which might have been usefully introduced into the Colony, very little trouble, ap- parently, was taken for many years by the Legislature to amend the law in this Colony as it had been amended in England. Qc- casionally, necessary Ordinances were passed relating to procedure, adopting the methods provided by English statutes then recently enacted. Of course no provision made by a local Ordinance of a Colony could deprive the Home Government of power expressly to extend to the Colony the pro- visions of any statute enacted sub- sequently to 1843, Moreover, the right of our Sovereign to make all such laws as might appear necessary for the peace, order, and good government of the Co- lony was expressly reserved by

the Charter,

The Ordinance of 1845 where- by a Supreme Court was estab- lished in Hong Kong gave powers to that Court to admit and enrol persons "as Barristers and Soli- citers" who had been admitted to practice

United as such in the Kingdom, or in British Colonies; and further enabled the Court fo admit temporarily, for 3 months only, any other "fit and proper person" to practice in the Courts, provided that there should not number of then be a sufcient duly qualified, and admitted, per- sons competent and willing to ap pear.

Since that time the two branches of the profession have remained distinct,

very occasionally, but infrequently, and this many years age, a Solicitor having been ap- pointed to act temporarily as Barrister.

bern Proposals have made on many occasions for the analgamation of the two branches, but the members of neither branch have approved of the idea, which, it carried out, it was considered would be detrimental to the in- terests of the public, as well as to those of themselves.

An Alternative

As an alternative to an amalga- mation, the suggestion was onee that the Supreme put forward Court should have its summary Jurisdiction (which is at present Junted to cases involving sums up includ: enlarged to to $1,000) cases up to $5,000.

This was also rejected as im- practical, and the only outcome of the latest discussions has been a modification of the scale of fees which solicitors and barristers are allowed in respect of cases within the lower limit of $1,000 or $5,000. The Ordinance which still gov➡ erns the admission and enrolment of barristers and solicitors

in 1871, but it is that passed thought highly probable that if it had not been for the War a new ordinance would have been put into force; it has already submitted by the Incorporated Law Society of Hong Kong.

was

been

it

This new Ordinance, whilst

and deals with the qualifications formalities for the admission both of solicitors and barristers in Hong the Kong, will bring up to date law affecting the conduct of soll- citors in control of the profession as laid down in the Solicitors' Acts enacted in England from 1932 on- wards.

study Whilst the facility for under articles locally is to be pre- the served, it is intended under

new Ordinance that every articled clerk should pass a final examin- ation as set by the Law Society in England, with a view to spending part of his period under articles in that country,

There are to-day about 52 prac- tising solicitors in the Colony and 10 barristers, but only a few of the latter are in active practice in the Courts

The first European barrister re- gistered in Hong Kong was Ed- 10th, ward Farncombe, October 1844.

was

The first Chinese solicitor Ho Dyson (August 23rd, 1887), since whose time and up to 1928 there has been an aver- age of from two to three Chinese solicitors. After 1926, the number of Chinese solicitors has steadily increased until to-day, out of the total number of solicitors practis- ing, 20 are Chinese. In addition, there are seven Portuguese one Indian solicitor.

Registration Of

Deeds

and

The first Ordinance of any particular importance which was passed alter the Colony obtained a local legislature by virtue of its Charter, was one which provided for the registration of deeds, docile ments, and judgments affecting Janded property in Hong Kong.

Its Practice

Its

Ordinance No. 3 (now styled No. 1) of 1844, whereby a Land Office was established, in which, it was docu- provided, all such deeds, ments, and judgments should be registered within the period of time mentioned-one month after execution in the case of all docu- ments executed in the Colony, or twelve months if executed in any other place. Neglect to obey the provisions of this Ordinance, it was further provided, would ren- der such deeds and documents absolutely null and void to all in- tents and purposes as against any subsequent bona fide purchaser or mortgagee of the property affect- ed.

The establishment, by this Or- dinance, of a register of titles to landed property rendered convey- aneing a comparatively easy mat- ter, although considerable dif- culties have occasionally been ex- perienced by reason of the custom among the Chinese of purchasing property in a "Tong" name, that is to say, a name invented to re- present a family.

or a body of persons descended from a common ancestor. In the early days of the Colony this custom was apparent- ly unknown to legal practitioners, with the result that titles to some properties were subsequently found to be much complicated. Of late years, however, the Chinese themselves have come to under- stand that in dealing with landed property in this Colony, use must not be made of a “Tong” name.

The tenure of practically all the land in Hong Kong and its de- pendencies is under lease from the Crown for a term of either 999 years or 76 years, the Colony deriving a very large part of its revenue from the Crown rents payable under these leases. Crown lenges for the shorter term usual- ly contain a provision giving the lessee a right of renewal of the lease upon the expiration of the term, when, however, the Crown rent may be readjusted. But whe- ther or not the Crown lease con- tains such a provision, a renewal would doubtless be granted, on a readjustment of Crown rent, un- less the land were really required for public purposes,

Land Tenure

In the early days of the Colony by far the greater number of re- sidents were not British subjects, but Chinese. Many, as at the pre- sent time, were aliens from Euro- pean countries. For some reason, which is by no means clear, doubts arose regarding the rights of other than natural-born British subjects to hold and transfer landed pro- perty within the Colony. Accord- ingly an Ordinance was passed in 1853 for the purpose of removing these doubts, and it was provid- ed that it should be lawful for any alien to acquire, hold, sell, and transfer any lands, or other immovable property in the Co- lony as fully and effectually to all intents and purposes, as if he were a British subject residing in the Colony. Similar doubts later arose with regard to foreign corpora- tions, and, although it is conceived that the necessity for such pro- vision did not arise, inasmuch as the Mortmain Acts do not ap- ply, and a foreign corporation is for all other purposes regarded by our law as an entity, it was considered advisable to provide that u expressly by Ordinance foreign corporation shall be en-. titled to hold and transfer land in the Colony, provided that cer- tain formalities are carried out. The transmissions and devolution of landed property in the Colony is governed by the laws of Eng- land as they existed prior to 1843. The Real Property Act 1845 having come into force in Eng- land prior to the passing, in Hong Kong, of Ordinance No. 2 of 1846, it was, for a brief period of time, necessary for the purpose of ren- dering vollid at law a lease of

of landed property for a term over three years to make such Icase by deed under seal; but, as, both by the Ordinance of 1846, and by the Ordinance of 1873 rupeal- ing it, only such of the laws of England as existed on April The 5. 1843 became in force in Colony, it ceased to be so neces- sary. Nevertheless, it has been the almost invariable practice in the Colony to follow the home prac tice in this respect, and also in regard to assignments of property. The Conveyancing not being in force in Hong Kong, deeds relating to land are neces- sarily more lengthy than they are now required to be in England.

Act of 1881

On the death intestate of the owner of landed property in the Colony, the land being leasehold, devolves upon his administrators kin. in trust for his next of Should the owner of property die leaving a will, the terms of that will

the govern

devolution nf such property, provided the will is executed in due form ac- cording to English law. But in the case of a will made by Chinese testator, whether a na- tive of, or domiciled in, Hong Kong or the Empire of China, special provision was made by Ordinance In 1856 to the effect to that if the same be proved

to have been made. according Chinese laws and usages, it shall be treated as a valid will for the purpose of transmitting pro- perty in the

the Colony. At time of the

Or- passing of the dinance it was evidently not admprehended by the members the Legislative Council that it is extremely doubtful whether there existed any laws and usages in China at all with re- gard to wills; the general cus- tom being that property in that country devolves upon the next succeeding head of the deceased's family, who, however, is suppos- for ed to have a certain regard the wishes of the deceased, ex-

of

pressed verbally or in writing, to and whose conduct will be,

the some extent, regulated by elders of the village. The Or- dinance, therefore, would not ap- pear to be of much use.

Making A Will

Although in the past 15 years many compendious and almost re- volutionary laws affecting the ten- ure of land have been passed at Home, there has been no change in the local law, which, therefore, stands-except in regard to the Conveyancing Act mentiontd above-very much as it did in England before the Great War of 1914 to 1018.

In by far the greater number in instances where a Chinese has amassed property in Hong Kong and died, he has learned the ad- visability of making a will, and the necessity for having two at- testing witnesses to it. If he has omitted to make a will it is believed, though the fact can seldom be proved, that after his death a will, is prepared, ap pointing executors, which pur- ports to have been executed by him, and to have been duly at- tested. Such a will, however, is generally a perfectly just one according to Chinese Ideas, and is therefore not disputed," the sole object în propounding it being to avoid the necessity for finding the security which is re- quired to be found by the

ad- ministrator of an intestate's estate, The Chinese are a busi- ness people, and a Chinese be-- coming surety for another always requiros, and is considered to be entitled to, payment for his ser- vices.

The tendency in the Colony. at the present time is to passi- milate its laws, so far as it can conveniently be done, to those of England. ́ ́Undoubtedly this sists very much the administra- (Continued on Page 94).

1941