CO129-161 - Public Offices - 1872 — Page 339

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short of meeting the requirements of the place, and for many reasons, which it is not necessary to enter upon at present, I think its repeal, and the substitution of a new measure, more suited to the circumstances of the colony, would be a boon to the mercantile community. When the time comes for legislation on this subject I am inclined to think that most of the Provisions of the two Acts of the Government of Tasmania, 34 Vict. Nos. 32 and 33, might be adopted with advantage.

Claims against the Government.-There is no provision in the Colonial Law on this head; a Petition of Right may be presented to the Governor and by him referred to the Supreme Court, but there is no sort of machinery provided for carrying out such a proceeding. If legislation on this subject should be thought desirable, I would recommend the adoption of the Act of the Government of Western Australia, 31 Vict. No. 7.

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Application of Imperial Statutes to the Colony-By directions contained in a despatch of the Secretary of State about the year 1858, no Imperial Statutes are to be extended to Hong Kong, as far as they may apply to local circumstances," but their provisions must be specially enacted in the shape of an Ordinance. It seems to me that this rule might be relaxed with advantage. It is very difficult to keep pace with the Imperial Legislation of the day, and many Statutes are passed of great practical utility, and which require very little if any modification for the purpose of being applied in Hong Kong. In Western Australia the Criminal Law Consolidation Acts of England were introduced by one section of the Colonial Act, 29 Vict. No. 5, whereas in Hong Kong the same Acts are turned into Local Ordinances, occupying upwards of 120 pages.

Act 81 Viet., No. 8 of the Government of Western Australia, is a specimen of the Practice existing in that colony of adopting Imperial Statutes en bloc, so far as they can be applied to the circumstances of the colony.

APPEALS.

By the rules which regulate Appeals from the Supreme Court of Hong Kong to the Judicial Committee of the Privy Council, no Appeal is allowed (except by special leave to be granted by the Judicial Committee itself) from any Judgment in which the matter in dispute is not above £.500 in value.

I would strongly urge that the rule which is in force in the Cape and, I believe, other colonies, whereby the Colonial Court cau, in certain cases, grant special leave to Appeal, should be extended to Hong Kong. This would effect a vast saving of time and money, and prevent the hardship which may, in cases of this kind, be inflicted upon an unsuccessful defendant whom the Court has no power to protect from execution on the Judgment, pending the application for special leave to Appeal which has to be made in London.

I avail myself of this opportunity to submit a scheme which I have long advocated, and which would, I believe, meet with success in relation to Appeals from Hong Kong, the Straits Settlements, and Her Majesty's Supreme Court for China and Japan established at Shanghai.

The colony of Hong Kong is about equi-distant from Singapore and Shanghai---the steam communication occupying about the same number of days, which, according to the monsoon, varies between four and eight.

It appears to me that the Chief Judges of the three Courts might form an intermediate Court of Appeal, whose decision in cases not exceeding ten thousand dollars should be final, subject to special leave to Appeal to the Privy Council.

If the inconvenience and expense which might arise from the necessity of the three Judges meeting to hear the Appeal in open Court should be urged as an objection, a case for their opinion might be stated by the parties, accompanied by arguments in writing, to be printed and forwarded in sealed packets from the Court in which the Judgment appealed against was pronounced to the Judges of the other two Courts, who might return the same with their respective judgments, the decision of the majority prevailing. In cases above $10,000 the right to appeal further to the Privy Council should be as of right.

I am inclined to think that a local "Cour de Cassation" such as I have suggested would operate as a useful kind of breakwater between the Appellants from the three Courts in question and the Judicial Committee; besides providing an expeditious and inexpensive redress to suitors who are generally appalled at the prospect of an appeal to the Privy Council, and yet are not disposed to submit finally to the adverse decision of one Judge only, when they are advised that there is ground for questioning its correctness.

February 1872.

JULIAN PAUNCEFOTE,

Attorney-General of Hong Kong.

An Ordinance enacted by the Governor of Hongkong, with the Advice of the Legislative Council thereof, to simplify and assimilate the Procedure and Prac- tice of the Supreme Court in its Common Law and Equity Jurisdictions and to amend and consolidate the Provisions of the Law relating thereto.

HEREAS it is Expedient to simplify and assimilate the

W procedure and practice of the Supreme court in its

Common Law and Equity Jurisdictions and to amend and conso- lidate the provisions of the Law relating thereto : Be it enacted by the Governor of Hongkong, with the Advice of the Legislative Council thereof, as follows:-

This Ordinance may be cited for all purposes as "The Hongkong Gode of civil Procedure."

In the Interpretation of this Ordinance the Expression "The court" shall inean the Supreme court and shall include the chief Justice or other presiding Judge in chambers, except where the nature of the provision or the context shall be repug nant to such construction. The Expression "the civil code shall mean this Ordinance.

Nothing in this Ordinace contained shall be deemed :

1. To affect the Jurisdictica of the Supreme court in respect of the grant of prerogative Writs or in any other respect whatever;

2. To affect the procedure and practice of the Vice-Admiralty

court or of the courts of probate and Bankruptcy;

3. To affect any Skit, Action, or the other proceeding insti- tuted at the time of the commencement of this Ordi-

nance :

provided always that in case the parties to any such Suit, Action, or other proceeding she desire to carry on and continue the same, so far as may be practicable under the provisions of this Ordinance, the court may in its Discretion permit them so to do upon such Teras and conditions, as it may think reasonable.

From and after the commencement of this Ordinance, and during the continuance thereof all the provisions contained in any Ordinances of the colony relating to the practice nud procedure of the court in its cominon Law and Equity Jurisdic- tions shall be, and are hereby suspended subject to the last preceding Section, and to the proviso next hereinafter contained, that is to say; provided that if any case shall arise for which provision may not have been made by this Ordinance, so often as the same shall happen, the court may in its Discretion apply or permit to be applied any provision of the law now in Force, so far as the same may be applicable to the circumstances of such case, and so far as the same shall not conflict with this Ordi- nance and can be made auxiliary thereto, for the Purpose of doing Justice between the Parties.

Practice under the Civil Code.

Subject to the provisions hereinbefore contained, all civil Suits and proceedings in the court, in its common Law and Equity Jurisdictions, shall from and after the commencement of this Ordinance and during the continuance thereof be insti- tuted and carried on in the Manner hereinafter provided.

DECISION OF QUESTIONS WITHOUT FORMAL SUIT. Questions of Fact.

Where the parties between whom a Suit might be instituted are agreed as to any question of fact to be determined between them, they may by consent and by order of the Supreme court or other court on Summons,-which order the court may make on being satisfied that the parties have a real interest in the determination of such Question, and that the same is fit to be tried, proceed to the Trial of any Question of fact without any petition presented or other pleading.

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Such Question may be stated for Trial in an Issue (Form 1.), and such Issue may be set down for Trial, and tried accordingly, as if the Question stated were to be determined at the hearing of au ordinary suit.

The parties may, if they think fit, enter into an Agreement in writing, which shall be embodied in an order of the court, that on the Finding of the court in the affirmative or negative of such Issue, a Sum of Money, fixed in the Agreement, or to be ascertained by the court upon a Question inserted in the Issue for that purpose, shall be paid by one of the parties to the other, with or without any Costs.

Printed by T. Brettell & Co, 51, Espert Street,--W.

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