1949-06-08 — Page 3

APPEAL REFUSED IN TENANCY TITLE CASE

*** |The question of the validity of the leasing, of p

Reminders

Today

Victoria Recreation. Club, Swim

ming League Meet, heais at 6,15, p.m.

Toe 11 Club roeeting, Talbot Houre, 60, Macdonnell Rond, 8.30.p.m. Crown Land Sale, Talpo, District

Omec, 11 am.

Kowloon Indian Tennis Club, ex- traordinary meeting, at club- house. 7, p.m: Flog Whist. Ladies' section, Euro-

pran YMCA.

Coming Events

tenancy title by the Japanese custodian af Property during the Japanese „occupation Zaf: the Colony was raised in an appeal before .: Full Appeal Court, yesterday.

The appeal was against the decision, given on'

March 1 this year, of Mr. Justice Reynolds, who delivered judgment in favour of the

of plaintiffs. In on action for recovery posses- sion of premises at 133 Des Voeux Rood .West.

The plaintiff, Hau Chung-..ministrative officer of the, Japan- kwak the respondent in Ulete-government who purported to leanney, could in appeal, had claimed that the give a valid

fact have dant so legally," he 'defendant, Fung Wal-yin, liv

stated Ing at the premises under dis- pule, was a trespasser.

Counsel went on to submit that there was no necessity for the Japanese to pass any special law to have been able to do so. Under international law, he said, the Japanese authorities could pro- perly enter upon this property by

Jaw in this connection.

TOMORROW

The appellant was represented Kowloon Rotary Club, luncheon, yesterday by Mr. B. A. Bornacchi Peninsula Hotel, Kowloon, Instructed by Mr. M. A, da Silva. 12.30 p.m.

Mr. D. A. L. Wright on the in- Y'a Men's Club luncheon, Roo!structions of Mr. F. Zimmern ap-

Garden, HK Hotel, 12.45 pm.peared on behalf of the respon-applying the appropriate. British Garden Party, Government House dent,

4 p.in.

FRIDAY

Victoria Recreation Club, Swim- ming League moet, Anals at 6.15 p.n.

RAILWAY

SERVICE RESUMED

trafle

The appeal

is based on the that grounds

the Judgo was wrong in holding that the appel-

Japs Stopped. In

int had not satisfied the burden After quoting various authorl- of proof as regards the legality of ties in support of his contention, the actions of the Japanese Cus-Bir. Bernacchi then told the Court todian of Property and that there that the respondent some time is.bnd was, sufficient evidence during the occupation moved out thereof.

of the premires in question. ing behind two fokis,

Later on

Abandoned Promisos The appellant also claimed that the Judge had failed to consider Jegality of such actions of the Japanese Custodian of Property on the clear evidence that the premises cousututed abandoned premises at material dates.

PANUSTE 38, 1940.

>Areas, at North Point are boing rapidly, developed. A.num - ber of residential buildings have been constructed there. Hara is one of the latest, blocks, of Chinees tenemente, under.com. struction on King's....Road,—“China Mail" Photo.

Landlords Rebuild On War-Damaged Sites

the premises became entirely un-Realising that-they will eventually be called on, to

cured for. Under these circum- stances, he went on, it became deserted, and the Japanese „qu- ; thorldes stepped in.

that the question of international.

Mr. Wright in reply submitted law did not rire in this case. As far as the respondent was con- cerned, they had proved that the title deeds were produced as ex-

His clients, bo continued, did was necessary. In the cir-

what

The leasing by the Japanese After more than 24 hours of complete disruption ral custodian gave lawful - Utle of

between Nationalist tenancy, to the appellant whereby China's refugee capital, Can- (a) at the material date of com-hibits. ton, and Kowloon was resummencement of proceedings, up- pellant was, and still is, the con- ed early yesterday morning.

The first train after the resump-treetual tenant of the premises in tion of service pulled in to the dispute; (b) alternatively appel- Kowloon Station shortly after lank was at such material dote al

train left statutory tenant of the said pre- The midnight.

mises and hereafter was, and is, for Canton again at 8:10 am.

not evitable as a trespasser, The suspension of traffic be- tween Canton and Kowloon was

A further ground for the appeal 4 (a) and (b), the eated by the Shek Ton incident that in do which Chinese soldiers armed Judge tacked juridiction. with mehine guns and rifles heldi Kowloon-bound trains **ip wo

same

that

the

strike was

spondent.

The appellant asks for juchte ment to be entered for himself and kidnapped one ticket inspee- and the costs of the action and tor on board one of the trains. of the appeal be paid by the re

Railway sources revealed that passengers travelling in trains be- Protected Tenancy tween these two points were very

Mr.Bernacchi told the Court Jew.

Chinese press reports from Can-lus case was that the letting of the premises to his client by the ton said

during the called off on Monday evening Japanese authorities

the occupation at the time created a by when the men taken

Ho submitted that for Chinese soldiers returned to the his reason, his qilant could not capital.

bad a protected Rarrison division

After further arguments, Mr. that the Bernacchi confonded Japanese Custodian of Property was an odministrative officer, am preposing to show that an ad-

tenancy.

ciumstances during the Japanese occupation. They moved to free. China, leaving behind two fakia with nstructions to look after ite premises as best as they could.

Returned To Colony On the re-occupation early in 1040, he went on, the landlord arrived back in the Colony and palu a visit to the premises. He found the appellant there, who was not known to him at all.

The Commander of the nth be evicted as a tenance as he evidence that the premises were"

་་་

also made, a verbal promise that henceforth: the death sentence will be given to officers and soldiers who dis-

regulations Tegard the Railway.

of the

Stewart Freed As Appeal Succeeds

Robert George Stewart, aged 28, former Admiralty clerk, walked out of the dock at the Appoal

· Court yesterday, a free man, when the con- viction and sentence passed on him in Febru- ary on four counts of,simple Jarceny, involv ing HK$19,000, wore quashed. The Full Appeal Court, comprising the Chief Jus-

tice, Sir Leslie. Gibson, and Mr. Justice .Wil- liams, Puisne Judge, in allowing Stewart's appeal, also held, that on an indictment on simple larceny there can be no conviction for .fraudulent.conversion.

nt

unlawful.”

Stewart had been convict Larceny Ordinance, a person who ed and sentenced in February is a ballee or part, owner may be by Mr. Justice Wicks. then convicted of; larceny even though the his original posesion was not Additional Judge, Criminal Sessions. He was

He went on to say that the acquitted on two other counts Court was of the opinion that to of falsification of documents be convicted, as a bailee or part and four of Jarceny by clerk owner a man must be under the obligation to roturn the specific 'or, servant.

properly to the alleged, subject o the larceny.

Mr. Percy Chen, who represent ¿e Stewart of the original hearing also appeared on his behalf.at his appeal uninstructed. Mr. M Hecaan. Crown Counsel. was for

the Crowearing yesterday took

The

|

fulfil their obligations, a number of landlords have begun to rebuild on war-damaged sitos and rehabilitata.war-damaged property. Housos on now sites are also under construction. Except at Aberdeen, construction of residential

+

Four Held On Charge Of Extortion

Four Chinese „appeared be- fore Mr. F. X. d'Almada at Central, yesterday, on a charte of demanding money with monaces: fram Wong Kwok- loung on May 29,, at Queen's Road Central.

The defendants were Wong Kal-yeung, aged 28, waltor, Cliui Kwok-wing, aged 32, aselatant steward, Chouk Kim-tat, aged 20. waiter and Lai Sul-ming, aged 22. walter,

They were defended by, Mr. A a, Clifford, instructed by Mr. M. A. da Silva and Inspector: Perpy Lowe was forethe prosecution.

Inspector. Lowe ila that the ense first came to the notice of the Pullee when the complainant and a friend. Cheung Wonstan went to the Police Station on May 10. Complainant made a com- plaint that a demand with, men- aces had been mado on hän on at #1 p.m. by, the first des May fendant and several others før

$500.

Arrangements were made, to pay the money dur following day But, the, King's Restourent, JAK I result detectiven were sent to the place, in order,,to, hear the tone versation. S1.Wong, and twoj des Lactives were there.

Serious Throats

Lowe

Demand was made, and defen; dant offered $500 (in marked notes) but, the defendants refused and wanted $2,000 and at the same time made, serious threats were arrested and taken The parly to the Central Police, Station.

Inspector fold the inagis- trate that sometime in June last year, a demand was made in Can- ton. The impression, given, at that time was that compininant, had been involved in some sort of n swindle and was told to refund he money. Through complainant the first defendant was arrested in Canton and detained for some

houses is in progress throughout the Island of Hong Kong. A number of Chinese tene- ments and European-type -detached houses are being built along Island Road, "Repulse Bay Road, of North Point, Causeway Bay,tline. Happy Valley and Wanchai.

Some of the most modern residential, buildings are being built in the vicinity of Garden Terrace,

Woog met · defendant at the Plaza Restaurant and demanded the money from, complainant say- poreons, and European typing that he had suffered a lot in housing. For 7,000 persons wat Canton. After first defendant was destroyed.

arrested In Canton, complainant man sway,

Cheung. Wou-ton -In evidence wid that he was, a Clerk in Alfred Hon and Company. At 10.30 am. an May, 10 complainant went to A number of war damaged site:is house to see him and told him untouched, since the end of the

if the Inoldent the night before. war, are expected to be developed He advised complainant to, report before the end of the year, as a

to the police. result of the recent Ordinance compelling owners to rebuild.

ASS

Canton Holiday

Winess said that some time, in June last year he went jó Canton for a holiday and there met com- lainant in a cabaret. He promised to have tea with the complaihunt.

Singkiang Brings Chinose he next day. "From Faachow

In 1940 and 1948, a total of 98 Kennedy Terrace,

European Lype houses, and 516 MacDonnell Road, Kennedy Chinese type dwellings were com Road and on The Peak.

ploted to accommodate an e- According to official statistics.mated 30,000 persons. "He found a person in his pre- during April, 47 plans for Euro- mises whom he did not know and pean-typed houses were approved with whom no agreement of ten-as compared with the monthly ancy was made whatsoever." Mr. average Ogures of 45, during last Wright declared.

As to appellant's contention year and 67. during the first three

mouths .of the, year. that the promises had been aban- An increase in approved re- deed, ir. Wright stated that habilitation plans was also re from the evidence the facts were corded in April. Eleven plans for contrary to this. There was no

repairs and rehabilitation were

09: approved compared with B abandoned by the Lokis.

"All we know

is that

when the respondent went out of the Co-

Plans for house alterations and Additions totalled 011 during lony, she was later informed that the Japanese Custodian of Pro April. The monthly average dur- perty had taken over her

her pre mises. When or why, it could not ing last year was 530 and during be ascertained, Counsel, said.the first three months of the year

Mr, Wright went on to say that it was 550.

Including 72 plans for Chinese the onus was on Mr.:)

To provide fagilities; for the type houses, the authorities con- to show exactly why the Japan- ese took over the premises. It was cerned approved a total of 780 transfer from the Sinking to the plans during April Canton-bound craft, the Wusuch

le, then asked complainant, to no good for Mr. Bernacchi mere- construction

monthly was specially berthed alongside report to the Canton Police, A ly to say that he could not tell as compared with a exactly why, but that even if leverage of, 708, last year and 785the

to discharge her first-defendant was arrested.

The case was adjourned to dime 27 at: 2.30, pan.

torchli

monthly average of 10 in the first three months of the year.

The ss. Sinkiong yesterday brought 437 Chinese passen gers from Foochaw. Many of Wusach to leave for Canton them hoarded the river vessel

last night.

1.

While they were having tea, In restaurant in Cantón four men came up to them and one of the men opened, his jacket and show-

them a, revolver.

The mon with the revolver, told some one in-Hong Kong and ask- complainant that he had swindled

edhim

to refund the money. Eventually complainant poid them $2,000 in his presence

could not...nevertheless it could during the, first,hree months of Sinklanan, Wharf, where the report was made and eventually'

authorities.

paspengers.

Le. presumed that what they did the year.

Omalni statistics relating to the Buf several small craft in the was done by some measure piss-actual completion of building are neighbourhood

•prevented the from getting Referring to 1 Mr. contention that a military occup-Mail was told yesterday. It was alongside. She fasored at B. 1. mt of a captured territory was pointed out that, in view of the Instead and passengers had, to

frequently

disembark into ompans and the successor to the Crown fact that building lots matters such as these. Mr. Wright change bands, and new plans may launches to go ashore. submitted that the military pe-be submitted for approval by the cupier was only a temporary new owners, the Agures in thin possessor of Crown property, article do not afford, a preciso in- Sovereignty, he declared, did not dication of actual progress in pass from the Crown to; the mili-building. tury decupant.

ed by the Japan Bernacchi's stili being prepared, the "Ching ocean-going : ship

Mr. Wright stated further that it was the practice for the Japan- ere to confisente premises during can one occupation, "How the hase his, decision on surmise that the Japanese Custodian of Pro- perty was entitled to take over the premises" counsel queried.

He went on to submit that the general principal of international low was that a military occupier was not entitled to interfero, in private property. He quoted an authority on it.

The Decision

the

df,ho was not a part owner

In giving his decision, Afthe specific property, Bir Lealle, added, the provies of the Chief, Justice reminisced that Mr. Larceny Ordinance,bad no, ap- Bernacchi contended 'that the Jamese occupying power, were

for him,

Building In Progress

A survey by the "China Mall" yesterday, however, shows that building.of new houses is in pro dress throughout the Colony.

High rontals and, key, money, however, are still prevalent. Among the ленто

modern apart

six-storey air- ment houses being constructed in the city are conditioned building in Kennedy Road, and a seven-storey al- conditioned apartment house at Nos. 10-18, MacDonnell Rosd.

divided

1

One wing of this building a already occupied by tenants.

On MacDonnell Road, a four- to be is also storey residential, house,

into apartments, Justice then Chief

to exercise the power under construction. In the same recplied place at the newly constructed

Heenan's

reporter Third Court, and the appeal JMr.

application or Sir Leslie Gibson, stated that district a "Chins Mall

considered that saw a number of other modem the first case to be taken within words fraudulension that the conferred on the Crown

disposition" might be wide enough the Court had

struction. Japanese Custodian of Property was not entitled to exorciza, this power.

its qir-conditioned interior.

In giving judgment, the Chief to cover the offence of fraudulent point, and have found that the residential buildings under con- Justice, sald in part:

conversion: We are

"On the hearing of the appeal, that this is not

Mr. Chen has not argued the

merus off. the

The

of the he

Saso and. In fact of general and do not

the Court accepted that stidid not Yuen Street,when completed will

there appear to be no merits in permit either a

ase because, on the appel Appeal the cases!

Ja

મ

Similar conditions prevail.on the Mainland. One project at the words, he ruled, were not

The Chief Justice also said that comer of Boundary Street and Fa 30 self-contained of Court of

fraudulent pass to the Japanese when they have at least

coupled Hong Kong, and were apartments, with verandahs. lant's own statement in. The Court conversion on a count of farceny.

The area between Nathan Road to the British. Th not succDESOIE As to the question of whether below and on his own evidence in

Crown. He pointed out that it and Chatham Road has become particularly conspicious for new the Court below, he quite clearly would be possible, forthem to would be quite impossible for The misappropriated money which eder a new trial, Sir Lepile stated Japanese authorities to carry out housing projects. One of the new was the money of a Club,

and garages on the Sir Lealle concluded by ruling apartments a new trial on a count which hịt that the Court was of the opinion ground floors.

Latest type of never been-preferred by the that the onus of proving the lega-European residential blocks are Attorney-General at all.

lity of the action of the Japanese also under construction In Gram- "We cust also set-side the Custodian of Property had not plon Road, Derby, Road, and, pear but that does not affect the post-conviction and the sentence, and been discharged by appellants and Sal Yee Street.

Legal Argument

hat the Court took the view that the provisioris in the drdinance. buildings will have three-roomed |

tok | it was not open-to-them to order

4

"It is, of course, the excuse of every offender against the

that he hope to be able to repay,

dae-typo -housing-for-460,00r

tion at all:Mn Chen bag bowever, the appellant is therefore kilp that therefore the appeal is, re- A1 a result of the war, Chin put forward a purely legal argi-chargid ment. His argument la thay there was no ovidico belureithe Juty on which the accurgil: could be found guilty of siniple larceny, and it is necessary for us to-con- elder, that point

Bir

that a persons the pomessed of felonious

Hittard (with coats.- .

-HUJA NAN MOTORS PRESENTS

*LIGHT

TEL.

¿CARS

There was only one European passenger in the Stokiang.

:TUBERCULOSIS "DEATH TOLL

Deaths from tuberculosis dur- ing the week ended May 14, totalled 61 bringing the total, sinc total

"REQUISITIONING totalled 61 bringing the

since the beginning of the year Amivate house at Tan Ling, 40967. New - Torritories, owned by Mr. Deaths from all causen, during Eldon Potter, KC, was requisithe wook under review were 207 tioned by the Government yes-Births in the same period totalled terday for the Army.

201.

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