CO129-164 - Sir Kennedy - 1873 [7-9] — Page 30

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PREFACE.

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1. The following Draft of a Code of Civil Procedure for the Supreme Court of Hongkong is intended

to provide a uniform and more simple system of procedure for the administration of justice in the two principal branches of its jurisdiction, namely, at Common Law and in Equity.

2. The Supreme Court was established by Ordinance No. 6 of 1845, and by Section 4 of that Ord- inance, 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 local circumstances, be in force therein. 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.

3. 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 in the Colony by virtue of Ordinances No. 6 of 1855 and No. 5 of 1856, and the reforms in the Chancery Procedure of England were also introduced 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 adapted from Imperial Acts, 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 Procedure of the Supreme Court of Hongkong is substantially similar, from the institution of every suit to its term- ination, to that of the Courts of Common Law and Equity in England, it is in many respects far more incomplete and imperfect.

4. 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 Hongkong is still intricate, expensive, lengthy, and ill suited to the conditions of the Colony. A vast deal of time and money are spent 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, and Advocates are called upon to argue, and the Judge to decide points of this kind in several branches of the Law, cach of which is considered in England sufficiently difficult to constitute a speciality and to induce Members of the Bar to dovole themselves exclusively to its study and practice.

5. These very considerations led to the introduction in India of a new Code of Civil Procedure, which after a long trial has fully justified the expectations of the distinguished Jurists by whom it was devised.

6. The Rules of Procedure in force in Her Majesty's Supreme Court for China and Japan, which are in a great measure modelled on the Indian Code, are admirably suited to the transaction of Legal Business in the East, and their clearness and simplicity commend them to the approval of snitors of all nationalities.

7. The first Report of the Royal Judicature Commission, published in 1869, contains most valuable recommendations for the amendment of Legal Procedure and Practice, and it may be con- venient in this place to give the following extracts from it, which relate to the most important of the reforms suggested:-

Extracts from the first Beport of the Royal Judicature Commission.

Much may be done at the very commencement of a suit to prevent unnecessary litigation, delay, and expense. In a considerable number of suits there is no substantial question as to the right of the plaintiff to, at least, some relief. Frequently the object of the defendant is to gain time; sometimes he only disputes part of the claim, or of the amonat

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