333
Attachment, introduced into the colony by Ordinance No. 2 of 1855. It might form a separate Ordinance on this subject, if preferred.
The Report of the Judicature Commission contains several new and valuable suggestions, most of which might be incorporated with advantage in the proposed New Code for Hong Kong.
Secondly, As regards the Constitution and Jurisdiction of the Supreme Court.
I am disposed to think that it would be desirable to abolish the Court of Summary Jurisdiction as a separate Court, and to confer upon the Supreme Court a Summary Jurisdiction similar to that of the County Courts of England, in Equity, Common Law, Admiralty, and Bankruptcy limited to such amounts as may from time to time be deemed expedient. The Procedure, Rules, and Forms, of the County Court Acts might be adopted with slight modifications to suit the circumstances of the colony, so that the New Code of Procedure which I have suggested, would apply only to the superior as distinguished from the inferior or Summary Jurisdiction of the Supreme Court.
In order to carry out this scheme, it would be necessary to turn the Judge of the Court of Summary Jurisdiction into a Puisne Judge of the Supreme Court, and to provide for the appointment of a Second Puisne Judge in the event of any increase of legal business rendering it desirable.
Some inconvenience might be felt at first in having a Chief Justice and only one Puisne Judge, but it would be preferable, in my opinion, to the present arrangement.
The order and distribution of business might be regulated by the Chief Justice, but both the Judges should have co-extensive powers with respect to the transaction of all business in the Supreme Court, whether in its superior or summary Jurisdiction, with this exception that all points of Law should be argued before both Judges, and that, in case of disagreement, the Judgment of the Chief Justice should prevail. Although the decision would thus be practically that of the Chief Justice, yet the presence of another Judge on the bench would be of great assistance to him, and, on the other hand, would operate, in a certain degree, as a check against ill-considered, capricious, or oppressive Judgments. In the event of a second Puisne Judge being appointed, the decision of the majority of the Court would, of course, prevail.
Cases of very considerable magnitude and importance occur in Hong Kong, both in civil and criminal matters, and it is very unsatisfactory that the difficult points of Law, which occasionally arise, involving very important rights and interests, should be argued before one Judge only.
Having regard, also, to the great distance from England at which the colony is situated, to the insalubrity of its climate, to the necessary interruption of the business of the Court, owing to the occasional illness or temporary absence of the Chief Justice, to the scarcity of persons on the spot competent to fill Judicial vacancies, and to the inconvenience of allowing a Practising Barrister, to hold temporarily, the office of Judge in the same Court in which he practises, I believe that the appointment of a Puisne Judge of the Supreme Court in lieu of the present Judge of the Court of Summary Jurisdiction, would be found extremely advantageous.
I am able to state that Governor Sir Richard Graves MacDonnell concurs in the above views as to the Constitution of the Supreme Court, and would most probably have submitted them to the consideration of the Secretary of State, had he not been compelled by ill health to return to England. The Appointment of a new Governor of the colony upon his retirement, offers a convenient occasion for inaugurating these important changes, should they be deemed worthy of adoption, and before closing these remarks I will offer a few suggestions on some miscellaneous subjects of Legislation.
The Law of Evidence.-The English Law of Evidence which prevails in Hong Kong is in a great many respects unsuited to the conditions of the colony, especially as regards the administration of Criminal Justice. I believe that the French System of preliminary investigation of charges by a Juge d'Instruction (with the exception of the Prison de Prévention, which is the great blot in the French Criminal Process,) would work infinitely better among the Chinese than our own, provided it be carried out by the Magistrates in Open Court. With respect to the Law of Evidence in general a most learned and interesting speech was recently delivered in the Legislative Council at Calcutta by Mr. Fitzjames Stephen, Q.C. on the occasion of his introducing a Bill on the subject. It will be found in the Fort St. George Gazette Supplement of the 16th of May, 1871, page 183; and the new Indian Evidence Bill, as settled by a select Committee, is published with their Report in the Fort St. George Gazette Supplement of the 18th of July, 1871.
The adoption of this important measure in Hong Kong pari passu with a new Code of Procedure would no doubt prove of the greatest value.
The Law of Bankruptcy and of Fraudulent Debtors.-The Law of Bankruptcy in Hong Kong is in a very unsatisfactory state. It consists of Ordinance No. 5 of 1864, which is a mere transcript of the principal provisions of the Bankruptcy Consolidation Act, 1861. It falls very far...
333
Attachment, introduced into the colony by Ordinance No. 2 of 1855. It might form a separate Ordinance on this subject, if preferred.
The Report of the Jadicature Commission contains several new and valuable suggestions, most of which might be incorporated with advantage in the proposed New Code for Hong Kong.
Secondly,As regards the Constitution and Jurisdiction of the Supreme Court.
I am disposed to think that it would be desirable to abolish the Court of Summary Jurisdiction as a separate Court, and to confer upon the Supreme Court a Summary Jurisdiction similar to that of the County Courts of England, in Equity, Common Law, Admiralty, and Bankruptcy limited to such amounts as may from time to time be deemed expedient. The Procedure, Rules, and Forms, of the County Court Acts might be adopted with slight modifications to racet the circumstances of the colony, so that the Now Code of Procedure which I have suggested, would apply only to the superior as distinguished from the inferior or Summary Jurisdiction of the Supreme Court.
In order to carry out this scheme, it would be necessary to turn the Judge of the Court of Summary Jurisdiction into a Puisne Judge of the Supreme Court, and to provide for the appointment. of a Second Puisne Judge in the event of any increase of legal business rondering it desirable.
Some inconvenience might be felt at first in having a Chief Justice and only one Puisue Judge, but it would be preferable, in my opinion, to the present arrangement.
The order and distribution of business might be regulated by the Chief Justice, hut both the Judges should have co-extensive powers with respect to the transaction of all business in the Supreme Court, whether in its superior or summary Jurisdiction, with this exception that all points of Law should be argued before both Judges, and that, in case of disagreement, the Judgment of the Chief Justice should prevail. Although the decision would thus be practically that of the Chief Justice, yet the presence of another Judge on the bench would be of great assistance to him, and, on the other hand, would operate, in a certain degree, as a check against ill-considered, capricious, or oppressive Judgments. In the event of a second Puisne Judge being appointed, the decision of the majority of the Court would, of course, prevail.
Cases of very considerable magnitude and importance occur in Hong Kong, both in civil and criminal matters, and it is very unsatisfactory that the difficult points of Law, which occasionally arise, involving very important rights and interests, should be argued before one Judge only.
Having rogard, also, to the great distance from England at which the colony is situated, to the insalubrity of its climate, to the necessary interruption of the business of the Court, owing to the occasional illness or temporary absence of the Chief Justice, to the scarcity of persons on the spot competent to fill Judicial vacancies, and to the inconvenience of allowing a Practising Barrister, to hold temporarily, the office of Judge in the same Court in which he practises, I believe that the appointment of a Puisno Judge of the Supreme Court in lieu of the present Judge of the Court of Summary Jurisdiction, would be found extremely advantageous.
I am able to state that Governor Sir RicHARD GRAVES MACDONNELL concurs in the above views as to the Constitution of the Supreme Court, and would most probably have submitted them to the consideration of the Secretary of State, had he not been compelled by ill health to return to England. The Appointment of a new Governor of the colony upon his retirement, offers a convenient occasion for inaugurating these important changes, should they be deemed worthy of adoption, and before closing these remarks I will offer a few suggestions on some miscellaneous subjects of Legislation.
The Law of Evidence.-The English Law of Evidence which prevails in Hong Kong is in a great many respects unsuited to the conditions of the colony, especially as regards the administration of Criminal Ju tice. I believe that the French System of preliminary investigation of charges by a Juge d'Instruction (with the exception of the Prison de Prévention, which is the great blot in the Freuch Criminal Process,) would work infinitely better among the Chinese than our own, provided it be carried out by the Magistrates in Open Court. With respect to the Law of Evidence in general a most learned and interesting speech was recently delivered in the Legislative Council at Calcutta by Mr. FITZJAMES STEPHEN, Q.C. on the occasion of his introducing a Bill on the subject. It will be found in the Fort St. George Gazette Supplement of the 16th of May, 1871, page 183; and the new Indian Evidence Bill, as settled by a select Committee, is published with their Report in the Fort St. George Gazette Supplement of the 18th of July, 1871.
The adoption of this important measure in Hong Kong pari passu with a new Code of Procedure would no doubt prove of the greatest value.
The Law of Bankruptcy and of Fraudulent Debtors.-The Law of Bankruptcy in Hong Kong is in a very unsatisfactory state. It consists of Ordinance No. 5 of 1864, which is a mere transcript of the principal provisions of the Bankruptcy Consolidation Act, 1861. It falls very far
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