CO129-161 - Public Offices - 1872 — Page 336

Land

Should your Landrip worthy of adoption in Hong Kong,

consider it

I shall have much

pleasure in

revising

and completing

the

Draft which at present

is

mere

а

"ébauche

I have the honor to be

Your Lordship's Most obedient Servant

Julian Pounce fote.

Allarny

Several of Hong Ko

1

MEMORANDUM on the Constitution and Procedure of the Courts of Justice of the Colony of Hong Kong, together with Suggestions for the Amendment of the Law.

I have the honor very respectfully to submit to the Right Honourable the SECRETARY OF STATE FOR THE COLONIES the following remarks on the Constitution and Procedure of the Law Courts of the colony of Hong Kong, in the hope that they may prove of some utility in the event of any legislation being contemplated on the subject.

The views which I entertain are founded upon the experience of ten years' practice at the Hong Kong Bar, in every brauch of the Law; and as I have also temporarily filled the office of Chief Justice of the Supreme Court, and that of Judge of the Court of Summary Jurisdiction, I have had the opportunity of considering the question from every point of view.

No one having resided as long as I have in Hong Kong, and having had the privilege to fill the important offices which have been entrusted to me, could fail to take great interest in its progress and welfare; and it is in that spirit that I proceed to give a slight Apercu of the Administration of Justice in the colony, and that I venture, with great diffidence, to offer a few suggestions for its amendment.

The Supreme Court of the colony of Hong Kong was established about twenty-five years ago, under Ordinance No. 6 of 1845.

By Section 4 (supplemented by Section 3 of Ordinance No. 2 of 1846) it is enacted that the Law of England and the Practice of the English Courts existing on the 5th day of April, 1843 (when the colony received a local legislature), should, subject to their applicability to the local circumstances of the colony, be in force therein.

By Section 5 it is provided that the Court shall consist of a Judge, to be called “the Chief Justice," although no provision is made for the appointment of Paisne Judges. This peculiarity was the subject of remark on the hearing of a recent Appeal Case from the Supreme Court of Hong Kong to the Judicial Committee of the Privy Conneil. (Rodger v. The Comptoir d'Escompte de Paris).

By Sections 14 and 15 a full legal and equitable Jurisdiction is conferred upon the Supreme Court, commensurate with the Jurisdiction of the Courts of Common Law and Equity in England.

Since the establishment of the Supreme Court upon the same footing, as to Practice and Procedure, as the English Courts, various Ordinances have been passed introducing into the colony the provisions of many of the more recent Imperial Statutes for the amendment of the Law. Thus, the Common Law Procedure Acts, 1852 and 1854, are in force by virtue of Ordinance No. 6 of 1855, and the reforms in the Chancery Procedure of England were introduced in the colony by Ordinance No. 7 of 1856 and other later enactments. It has not been possible, however, to keep pace with Imperial Legislation, and no Rules or Orders of the Supreme Court have been made to regulate the Practice under new Ordinances for the amendment of the Law, though portions of the Rules and Orders of the English Courts, in reference to the same subject matter, have from time to time been incorporated into the Colonial Law. It follows, therefore, that although the Law, Practice, and Procedure of the Supreme Court is substantially similar from the institution of every suit to its termination, to that of the Courts of Common Law and Equity in England, it is far more incomplete and imperfect.

Notwithstanding the valuable reforms in the Law which Imperial Legislation has achieved during the last twenty years, there can be no doubt that the legal Procedure now in force in the Supreme Court of Hong Kong is still intricate, expensive, lengthy, and ill suited to the conditions of the Colony. A vast deal of time and money are wasted over arguments arising out of Special Pleading and technicalities of Practice, which are incomprehensible and irritating to the suitor, and which in most cases do not touch the merits of the real question at issue. The Advocates are called. upon to argue and the Judge to decide points of this kind in every branch of the Law, any one of which is considered in England sufficiently difficult to constitute a speciality and to induce Members of the Bar to devote themselves exclusively to its study and practice.

These very considerations led to the introduction in India of the New Code of Civil Procedure and to the fusion of Law and Equity in one simple system, which after a long trial has fully justified the expectations of the distinguished Lawyers by whom it was devised, notwithstanding Lord Sr. LEONARD'S prediction that the fusion of Law and Equity would prove to be their "confusion."

The Rules of Procedure in force in Her Majesty's Supreme Court for China and Japan are modelled on the Indian Code, and are admirably suited to the transaction of Legal Business in the East from their extreme elasticity, clearness, simplicity, and common sense.

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