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The Daily Press.
HONGKONG, NOVEMBER 9TH, 1878.
SUPREME COURT.
November 8th.
CROWN CASEs Reserved.
BEFOE THE FOLL. COUR”.
REGINA V. HUFFAM. The court now delivered judgment in this case. The Attorney-General (Hon. G. Phillippo) instructed by the Crown Solicitor (Mr. E. Sharp), appeared for the Crown; and Mr. Francis, in- structed by Mr. Dennys, for the prisoner.
The Acting Chief Justice-Thinking it de- sirable that this case should have the most thorough investigation, I reserved at the trial, for further discussion, the various questions set out in the case stuted, and I now deal with them, with the exception of the points raised as to the validity of the defendant's appointment and the nou-initiation of proceedings by the agrieved parties, which were overruled at the heart of the argument. Having now heard the very able arguments urged by the learned Attorney- General in support of the convictions under the different coulls, and by Mr. Francis on behalf of the prisonor the other way, I have come to the conclusion, after very careful consideration, that the convictions under the two first counts caract bo sustained. I think it right to state my rea- sons at length though as briefly as possible. In the first count the defendant is charged with embezzlement of $50,000 received by him by virtue of his employment, be being in the public service of Her Majesty the Queen. The question really resolves itself into these two points: 1st- Wus the defondant, az official assigneo (not) generally but of certain bankrupt estates), in the public service of Her Majesty ? 2nd.-Was the money so alleged to have been embezzled Fer Majesty's property? In the 2nd count he is charged under the Fraudulent Trustee Clanse of the Larceny Ord. Soc. 65, with having con- verted to his own use the same sum entrusted to him as Trastoe for a certain public purpose, that of distribution amongst the eroditors of certain bankrupt estatos. This may be conveniently dealt with when the other points under the Trustee Clause come to be consideral. It is necessary to bear in my mind that the office the defendant held as Clerk of the Court was entirely distinct from the post he held as official assignee. He was not the public or general official assignee in the way in which the Registrar of the Supreme Court is under the Bank- ruptey Ordinance by virtue of his office. He was appointed official assignee of the estate of rail, Still & Co., uuder an Ordinance passed not for public purposes but for the special purpose of enabling the Governor to nominato and appoint some person other than the Regis trar of the Supreme Court be offluial assigace! of (not bankrupt states in the plural) but a bankrupt estato for the reason as stated in the Preamble that “circumstances occasionally arise which render it inexpedient that the Registrar should be the official assignee as provided by Section 6 of the Bankruptcy Ordinance of 1861." He received the actual appolatmeut, under this Ordinance December 27th, 1967, by an order in the writing of Sir R. MacDonnell. The day following, December 28th, by a notice in the Hongkoug Gazette he was appointed by virtue of the same ordinance the official assignee in about 30 other autocédent bankrupteios. As such official assignee the defendant re- ceived the money he has been convicted of em- bezzling. He never acted as official assignee under this ordinance in any subsequent bauk. raptey. It will be useful to ascertain as far as possible what the defendant's position was by virtue of this appointment, whioll at once bronght! bim under the regulations of the Bankruptcy Ordinance of 1864. With many differences the official assignees under the Bankruptcy Act in England of 1861 in all important purticulars would most resemble the official assignees in this Colony. The duties are very similar; and from the moment of appointment both passed under i the exclusive control of the Court of Bank ruptcy. Our Bankruptcy Ordinance 3 of 1864 is an imperfect copy of the previous Acts in Eug- land, especially of the Act of 1861. Unfortunately
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|å great part which provided a system of checks and counter chooks between the different officers was not imported. Into the details of the act of 1861 and the Ordinance of 1864 ie is unnecessary to enter. I will only say that the duties of the official assignee are carefully laid down in the English Act. In our Ordinance, Sections 7, 60, 66, 71, 82, 83, 88, 96, and 97, show the official assignee is entirely under the direc tion of the Judge of the Court in every act he performs. The multifarious duties connected with the management of bankrap! estates need not be described at length. If he was appointed by the Govinar it was in my opinien in deroga. tion of the powers of the Chief Justice, to whom : by the Ordinance 5 of 1864 all previous powers: and privileges had been reserved. He was liable to dismissal by the vote of a majority of the creditors in number, and one-fourth in value; or for misconduct by the Chief Justice, to whom the Supreme Court re-constitution Act 12 of 1873 restored. I am inclined to think, the full nowers of the Lord Chancellor, who by the English of 1881 could remove the official assignees by order upon canse being shown; having had by a previous Act, 5 and 6 Viet, ch. 122, zen. 80, the power to dismiss them at pleasure. The defen. dunt as official assignee was paid by a commission of 5 per cent, ont of the estate, not by salary from the Colonial funds. I have great doubt whether the official assignoes in England could be held to be in the public service of Her Majesty within the meaning of the 70th sect. of 24 and 25, Vict, which is the counterpart of sect. 57 of the Lareany rdinance 7, 1885, and but for the dual nature of his appointment, which might possibly make a difference, I should say the same of the general oficial assignee, the Registrar qué official assigune. When we find the duties of this office specially limited, can the holder with any accuracy of language he held to be a public servant? I cannot but think that some confusion of thought has arissu con- corning the terus "public officer" and "persons in the public service." These terms, are by no means co-extensive-the term publio officers in- oluding many besides those intus" public service.” The case of Regina v. Brembridge reportedin. Vol. 22 of the State Trials, is full of instruction on the liabilities of public officers. The principle laid down by Lord Mansfield is "where there is ; a breach of trust, a fraud, or an imposition in a subject concerning the public, which as between subject and subject would only be actionable by a civil action, yet as concerns the king and the public (I use them, he says) as synonymous terms, it is indictable." Lee, the Attorney-Creuoral, says “ wherever a man's business has a public aspect (Brembridge was accountant in the office of the Paymasterof the Forces), and an improperconduct in it injures not A, B, or C, but the community in general, that by itself is indictable at common law." The offonce is, it is said, acting contrary to the duties of an office if it be a public one, and Lord Mansfield adds that the rule holds: equally by whomsoever or howsoever he (the delinquent is appointed. Now the cases show that Mayors, Justices of the Peace-persons appointed to perform some duty under an Act of Parliament (Leheup's case), all per. sons easily recognised as being in the public service, e. g. accountants in Government offices, the customs and revenue officers, como under the |category of public officers," and all such public officers as the reports show, have been held at one time or another responsible to the Crown for mis- conduct in the discharge of their duties. IF official assignees como andar this rule, which Lord Mansfield says is as old as tho constitution, and if they are in the public service of the Queen, it is singular that, so far as my investigation goes, there is no instance to be found in the reports of an official assignee having been indicted as a public officer, or (as being in the public service), for embezzlement or any other form of miscon- duct. It is true the office of official assignes eo nomine was created by the Act of 1861, but some such public officers whose duty it was to manage bankrupt estates have existed from the time of Heury VIII. or Elizabeth, and as defaulters, were within the roach of the Common Law. How does this happen? Is it that the honesty of these persons in the public service, whether nated Commissioners formerly or official as- signees since 1861, has always been of an ex ceptional quality; or is it because officers of this kind have been nothing more or less than trustees by implication of law, orundor some express trust; and so the criminal law could not reach them uutil first in 1857 the Act of 90 and 21 Vict.
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