1948-12-15 — Page 2

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THE CHINA MAIL,' WEDNESDAY, DECEMBER 15, 1943.

Legal Argument In Cowie Appeal

An appeal against the judgment delivered by Mr. Justice Gould (Puisne Judge), an September 2, on a legal point raised during hearing of a claim by William, Honry Cowie against the Attornay Gonoral, was heard by the Full Court yesterday. The Full Court comprised Sir Leslie Gibson (Chief Justice) and Mr. Justice Wicks (Acting Addi- fional Judge). Hearing will be resumed today.

Mr. Justice Gould held that, be raised and that he wond Inter Cowie could not claim, in his dont with each point fu deini. nction for damages for wrong- Mr. Bernasch, sald thi it ful dismissal against the At-would be submitted on behalf of torney General, that he was the appellant that:

(1) nut guilty of misconduct as set because the parties to the present There was no estoppel out in the Statement of Claim. action were not the same as the The appeal now before the Full parties before the Board of In Court seeks a reversal of Mr. Justice Gould's judgment and an

[quiry: order that it might be held that Cowie ought to be allowed to say that he wOB not guilty of mla- conduct,

M. B. A. Bernacchi, instructed by Mr. Y. H. Chan of Messrs. To m Boigson, Is representing Cowie, the appellant.

The Attorney General, uominat- ed representative of the Crown, who is named as respondent, is represented by Mr. A. Lonsdale. Crown Counsel.

No Jurisdiction

Reminders

Today

NEW ORDINANCE HAS FIRST READING TODAY MAAMENDMENTS AFFECT

Toc H Club meeting at Talbot

flouse, 50, Macdonnell Road, LEGAL APPOINTMENTS

8.90 p.m.

Exhibition of Paintings by Yee

Bun, Lee Bying and Luis Talk on "Medico-Social Work in

Chan, Hotel Cecil, 10 p.m.

Hong Kong by Miss Mar-

Wilson, garel

European

YMCA, 8.45pm.

יי.

he Society of Yorkshiremen in

p.m.

Hong Kong, meeting at Jaco- beam Room, H. K. Hotel, 3.30 Talk Ching Middle School, 25th

annlyersary celebration, 10: H. K. Singers. Rehearsal, St.

gives wider powers to the magis- trate of releasing an offender on probation.

The object of clause 17 of the

An Ordinance to amend the Magistratos Ordin-Bill therefore is to replace seclips

n

ence of 1932 and to give the Governor power 3 of the principal Ordinative b

now section which authorises to appoint permanent and special magistrates magistrates to make on to the by warrant will be presented to the Legisla. propert tive Council for its First Roading today. The amendments also make it possible to dispense with the expedient applicable in certain cases of two magistrates sitting together, and to make the utilisation of justices of the peace for magisterial duties more practical,

sale of such, goods' or or to order dispost property, Where sale would be unlawful, rights of the owner are, dangerous or impracticable. Tha In the months from the date when the event of sale. peserved for six property drst came into the hands of the police and in the event of

I

disposal for six months from the John's Cathedral, 5.45 p.in.

dule of the order. Sino-British Club Orchestra · 70- St. David's Welsh Society Dinner-the objects and reasons of the of Uganda substantially

hearsal Cosmo Club, 0 p.m.

An official explanation of of the Criminal Procedure Code

"Section 73, which relates to gives temands has been recast to bring Social, Satlors and Soldiem new Ordinance follows:

Criminal efeel to the present practice in it into line with the Home. Hennessy Road, 7.45

Hong Kong. Such practice would Justice Act, 1014. The result of p.m.

not, however, be warranted, ex- the amendment will be that ne- cept by the express consent of the cused will be cautioned before accused, under the wording of thebo in wakest if he wishes to give present sub-section. It is appre-evidence on oath or to call wit- clated that this is a departure nesses and that the recording of from the procedure 7100 which

in force in such evidence will be subsequent wers England. It should however, be to the recording of any · unsworn

statement he wishes to make. borne in mind.

Coming Events

(2) The Board of Inquiry's | · no jurisdiction to sit as a judicial tribunal for the purpose of finally | Chinese determining the matters before and as corollary to that, that ita décision was no final, but purely for guidance of the Comaniasioner pf Police:

the

Exhibition, Governor, Hotel,

TOMORROW

Products opening by opposite Peninsula Kowloon Rotary Club luncheon,

4 p.m. Peninsula Hotel, 12.30 p.m.

-

St.

's Men's Club of Hong Kong.

nxsisted by Mr (2) The Board of Inquiry's L. R. Andrews, Crown Solicitor.

decision amounted to a bare ver Mr. Bernacchi said that the ap-diet not supported by judgment, peal was against the judgment of because the Board had no power Mr. Justice Gould on a prelimin- to give a judgment to support its |ary point et law. The respondent] verdict: if it were plesded, it

bad decided to put in or altach to might be possible in argue that St.

of the Governor proceedings, the the decision Judgment of Mr. Justice Gould on created in estoppel because it The second point of law, as far was a judgment or verdict: As the appellant was opneerned. he was not objecting to this at tite moment, but would reserve

the record of

has rights in the matter.

After stating that the point be- fore the Couri was long and somewhat interesting. Mr. Ber- nachi said that I was incumbent for hum to deal with the matter In detail,

Relevant Facts

(4) The reciprocity test and its application to Ue present car curatantes, namely, the test as to if the decision had been the other way, what would have, been the effect, on the ground that estoppel must be qutual:

the

(5) There was

no promulge.

Y's

12.15 p.m.

More Association & Orchestral Concert In aid of Home for Aged, China Fleet Club.

Thomas More Association, lecture on "The Apostleship of the Sea" by the Rev. Fr. M.C. Felly, At Catholic Club, King's Bldg., 6.80 p.m.

FRIDAY

SATURDAY Men's Club of Hong Kong, Xmas Party at Soon Kwont School, 2.30 p.m.

"Most Colonies have found necessary in the adininistration of Justice either to depart from the system prevating in the United Kingdom or at all events to con- sillute some tribunal for the trial

criminal Cases 2 greater jurisdiction and powers than Justices under the Summary Jurisdiction Acts in the United Kingdom and less jurisdiction and

of

Kins ann a Judge of the High

Court.

turn

Hong Kong the

such

A

In-

here is far in excess of that con

"(a) that the jurisdiction and powers conferred on magistrater ferred on Justices in England.

"(b) that in Quarter Session charges could be joined in the manner provided by clause 0 of

Bill and "(6) thai numerous

the

More Effective Stops

tion of the decision such as toil. R. Artists Guild Exhibition, I wise have had to be trfcil by A General to exercise the necessary | section (1), tha relevant part

create, a sumcient estoppel:

Hotel Cecil, 11 ..

or

of

"The object of clause 37 of the BUI is to enable more effective adopted iramediately prior to the

stops to be taken against un- Pacine War. of increasing the

and against licensed hawkers Powris of magistrates was, after

licensed hawkers found

con- the restoration of Civil GoveTMn ·

other

travening any Ord

Ordinance relating mere permits ment, confrmed by an Ordinance Colonles have in not dissimilar

markets, or causing obstruction theby hawking in a public thorough- increased circumstances legislated in munner proposed by the Bill. powers being exercised by

fare. The proposed now section 96 Justice to possess the

certified by the Chief magistrale

"It is clearly desirable that, as

will table a tragistrate, on con- in other Colonies, the Attorney victing an offender, to order the Recessary legal qualifications and experience

General should exercise control forfeiture of his still frames and for the exercise of such power.

over criminal proceedings before other hawking paraphernalia in cos Public School, Speech originally possed as an emergency entes previously triable only by played, hawked and sold by him. "Although this measure was magistrates particularly as many addition to the articles being dis- Day, 11 n.m.

racasare, its alitity since the re- the Supreme Court are now beina It is considered that the great in- of Civil Government has been dealt with by magistrates. The crease in the number of offenders demonstrated by the fact that

Attorney and Powers were resorted to course, always personally exercise justines this measure.

General cannot of (which shews no sign of abatfog) hy magistrates in a vast numbers it is necessary to vent in him.

the discretetons and powers which

"In clause 27 of the Bill, pection of cases, all of which would other-

79 has been recast so that it now. "The Bill enables the Attorney contains two sub-sections. In sub- already over-burdened Supremat

been

discretions, esses | Cotirt

to delegate some of the existing section has been ex- Inadequately

these to

to the Punished. It is perhaps significant

General and panded to state what

though trial of these i lo appone prosecutors to clearly law, to wi [that despite the

is often disputed, more. Important cases by magis-

is act either generally or

that discharge is no trates there have been very few cular cases or classes of cases. It bur to a subsequent charge or successful appeals against sen- is proposed to appoint suitable complaint in respect of the same lence since the restoration of Civil police officers to bet generally and Tacts; and to enable the magistrate ed from the Colonial Secretary,: My Bernacchi sald that he

cifcers Government. a letter which stated that the would also deal with the decision A Bill to give the Roman

departments to

to investigate a charge disclosed. Governor had ordered him to be in the Abercromble cast and lead- Catholic Bishop his appropriate Ordinance,

"Another defect in the principal which customarily conduct their by the inquiry but not the

subject dismissed for conduct calculated ing decisions of the pust in con- title will come up for its Brst when it was recently desired to affecting their respective depart

which came to light own prosecutions to act in cases of complaint or information.

"Clause 28 of the Bill seeks to to bring the Public Service into nection with deenestie forums, to Reading at disrepute.

distinguish those cases with the Council meeting today.

the Legislative appoint magistrates purely for the ments. Crown Counsel will be amend section 97 by making bail Me. Bernacchi, addressing the present. He would also deal

The purpose of hearing tenancy cases public prosecutors ex officio.

ses of felony. discretionary in all cases Court, said that he intended in with the general Medical Board Bill is to be known As the is that there is no power to ap- Certain Types Of Cases the first instance to summarise

enses relied on by the respondent, Vicar Apostolic Incorporation point magistrates by warrant and "There are certain types of well as with a few old general (Change of Name) Ordinance this way, limit the jurisdiction cases, notably those relating to matters, including the question of of 1848.

and powers of magistrates.

breaches of trafe régulations and "The rehearing of cases under burden of proof of a res judicata, A official explanation sald that

"A similar situation arose and other statutory offences which section. 09 of the principal Ordin- mby arise again in the case of though the Roman Catholic Church in of an offence which is

of publie order or

or Kingdom at the benefits from Hong Kong, has been raised to a

so pre public health arc ollen con- such a procedure are very doubt- bishopric. In view of this, 14 has valent that additional magistrates travenet by persons wins would ful in view of the rights of appeal

ere from time to time required. Ing was adjourned until 18 a.m. become necessary to give to the The practice of appointing mugls. Het normally be fermeti criminals, ; Kiven otherwise. Clause 30 is in-

Roman Catholic dignitary having trates by warrant

It is to the interest of such per- tend

per-terided to replace section DD by the supreme, ecclesiastical Juric-use In other Colonies and would

na to that of Police new .section which allows a diction in elles Culch is an suit the circumstances prevailing mit à plea of guilty to be made by determination consequential upon

his pin Hong Kong

letter

The relevant facts were, he said, | that appellant was employed in

(6) The decision was ombīgu- The Palice Force, that a summon us and therefore could not be taken against um was later with the subject of an estoppel. drawn, and that

(7) The present action he was sub- sequently brought before a De-not raise the same issue as wor partmental Board of Inquiry. raised before the Board of, in-

On August 21, appellant recely-¦quiry, except collaterally,

like different points which would

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save treason and murder, and in all cases of Indictable mis- demeanour,

After Mr. Beranecht had dealt the office of Vicor Apostolic of offences by hawkers or in the case in the intarily made offendea ance is not possible in the United

with each point separately and quoted numerous authorities in support of his submissions, bear today.

IF IT'S NEWS, WE'LL PRINT IT

Payment for all iteran timed Phone ihrough any · NEWS story, day or night, tez-«!

52312 OR 24354

YOU TOÒ CAN DE A'REPORTER,

Roman Catholic propriate title.

The new Bill has been dreignað to give effect to the changw status.

of

B

is in feriet Sancing dadules to par- magistrate to review an order or

"It is accordingly provided by pearance where the commission is in excess of jurisdiction. In And without personal op- conviction only where the order clause 3 of the new Bill that of the offence is not contested.

consequence of this it is proposed magistrates may be appointed by

a similar

en-

has also been Warrant under the hand of the be done has been introduced with cising the right to apply for re- "A procedure to enable this to that the period of time for exer- "Opportunity inken to repeal nad replace sec- Governor. Such magistrates may success in Scotland. The Bill view should be extended from 7 tlon 4 of the Vicar, Apostolic In- be given alther a permanent war-ables a corporation Ordinance,

procedure to be days to 30 days. 1885, in rant or a special warrant. In the ables

The proposed section 111; in order that the section may con-† former cate they will exercise allf Spplied here where the Ordinance clause 40 contains a provision that form accurately with the require the powers now exercisable by a ton of legislative Council has de-a magistrate prepare a statement

creating the offence or a resolu- ments, regarding private Bills, of magistrate including the increased blared it in be applicable to such of his Roding on the facts, and Article XXVII of the Royal In- powers, structions, concluded the official "Special magistrates, who may entomary, left to the discretion on appeals which are not by way however, as is other grounds of his determination statement,

not be legally qualided, will not of tire magistrate to insist if he of case stated which is intended have such increased povers save wishes on the personal appearanto to give the full benefit of and in so far as express provision of the defendant. is made in future Ordinances in

magistrate's conclusions in the

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case of special offences, cipal Ordinance is based on sec- and the judge on appeal and in- "Although section 21 of the prin- hekring of the cash to the parties Moreover, their jurisdiction and to 1 of the Summary Jurisdic-cidentally to reduce the time powers may be further limited tion Act, 1848, It contains a most which is taken in the hearing. of by their warrant of appointment important addition in that it en-Provision made throughout the

Clumsy Expedient ables the adjudicaling magistrato

"As a corollary of the above to give judgment upon the sub-principal Ordinance for fires, conts amendments it becomes possible stantial merits of the facts of the and compensation are subject to to dispense with the clumsy and case as proved before him and in maximum limits. These appear uncconomic expedient applicable convict the accused of any offence hopelessly inadequate, particulur- in certain cases of two magistrates of which he may appear to be in. Ulose cases where they have siting tomther. It is nevertheless guilty. Magistrales have not in-femtinet unaltered, possibly for a proposed to utilise Justices of the frequently asked for guidance as century and certainly elne 1890. pence for magisterial duties and correct procedure in such cases. The scale proposed by the Bill: section, 7 of the principal Ordin- and have suggested that the set ance has been amooded to make tion should be expanded. Clace Remarka this more practical.

11 of the Bill accordingly replaces The amendment to sub-section section 21 of the principal Or- (a) of section 10 of the principal dinonce with a new section. Ordinance réproducing section 134' "Clause 12 of the Bit which

FOR.

EXCLUSIVE PRESENTS

IN

FINE QUALITY

JEWELLERY

Perret

Frères

OPEN UNT

DAILY:

•Proposed scale Appropriation to payment of fine of money. found on defendant ...... Default in complying with

magistrate's

Order

penalty për day of de- fault

$100

$20

maximum penalty $1,000 Penalty for punishment of person who has;retison- #bld cause to believe ho wany/In... “posesion of „stólón property an Penalty on common: In- former compounding without imagistrate's per

$500

Apparel of debtor and famBy Powers to award couts and

Exeroption from distres

of budding and wearing

$100

fecovery by duitreas

($50

No coals where fine does

$20

Power to substitute fue for

Imprisonment

$2,000

to

$250

Pow to award compensa.

tion. In addition punishment www. Power

to sentenen.person vgising, insulting, Ikörunge

to or concerning › magis-

trala

$500

Power

to award compenka

tion to person maliciously

$250

Ponally for false

in above conner

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for Don