Enclosure 2 10082 24
The Daily Press.
HONGKONG, APRIL 17TH, 1894.
HONGKONG LEGISLATIVE COUNCIL.
A meeting of the Legislative Council was held yesterday. There were present-
H. E. the Acting Governor (Hon. G. T. M. O'BRIEN, C.M.G.)
Hon. W. M. GOODMAN, Attorney-General, Hon J. H. STEWART-LOCKHART, Registrar-General.
Hon. N. G. MITCHELL-INNES, Colonial Treasurer.
Hon. R. M. RUMSEY, R.N., Harbour Master. Hon. C. P. CHATER.
Hon. Ho KAI.
Hon. J. J. KESWICK.
Hon. T. H. WHITEHEAD
Hon. E. R. BELILIOS, C.M.G.
Hon. E. BOWDLER,
Mr. J. G. T. Buckle, Acting Clerk of Councils.
THE OPIUM BILL.
HIS EXCELLENCY-We will now proceed to the order of the day. It only contains one item. A motion was proposed and carried at the last meeting of the Council that before the second reading of this Bill the Opium Farmer should be allowed to be heard by counsel. I understand from my hon. friend on my left (the Attorney General) that the counsel should be heard before the motion for the second reading is put, and if the Council is agreeable that that is the most convenient course, I would ask the learned counsel who appears for the Opium Farmer to say whatever he has to say on the subject.
Hon. C. P. CHATER-Would your Excellency allow me to suggest that a message be sent to the hon. member whose chair is vacant (Hon J. J. Keswick) and who is no doubt absent owing to his not having noticed the alteration in the time.
HIS EXCELLENCY-Certainly. Probably Mr. Francis will occupy some time.
Hon. C. P. CHATER-I was very anxious that he should hear Mr. Francis.
HIS EXCELLENCY-I don't think we can wait. The Clerk was instructed to send a message to Mr. Keswick, who arrived shortly afterwards.
Mr. J. J. FRANCIS, Q.C.-Your Excellency, I have the honour to appear here to-day on behalf of the Han Fook, a Chinese partnership in whom is vested by a grant from the Government dated 21st March, 1892, the opium monopoly and all privileges connected therewith under the authority of Ordinance 21 of 1891, commonly called the Prepared Opium Ordinance, 1891. I appear here for the purpose, on behalf of the Han Fook, of showing cause, as it were, against the second reading of a Bill introduced and read a first time at the last meeting of this honourable Council entitled An Ordinance to Amend the Prepared Opium Ordinance 1891. I appear here by virtue of the 52nd of the standing rules and orders of the Council and in accordance with the permission of the Council granted by a resolution moved by the hon. member who represents the Chamber of Commerce and seconded by the hon. member who represents the Chinese community; and my first duty is on behalf of the Opium Farmers to return their hearty thanks to the mover and seconder of that resolution and to this honourable Council for the gracious permission granted to me to appear here to-day and state their case before this Council.
I appear here, sir, to oppose the passing of this Bill and probably the more convenient course in dealing with the subject will be to call attention, first, to the state of the law which it is proposed to amend; secondly, to call attention to the mischief which it is desired to remedy by the amending Ordinance; and, thirdly, to point out in what respect the proposed amendment seems to interfere with the rights and privileges of the Opium Farmers. Now, the Opium Ordinance, No. 21 of 1891, which was passed on the 13th November, 1891, establishes and constitutes what is commonly called the Opium Farm. It creates a monopoly in the preparation of opium and in the sale of the opium so prepared, and by that Ordinance all the privileges and all conditions and limitations which attach to the existence of the Farm were created. By virtue of that Ordinance the Governor was empowered to make a grant of the privileges created or constituted by that Ordinance to some person or persons, to be thereafter called the Opium Farmer or Farmers. By virtue of that Ordinance the Opium Farmer was to have the sole and exclusive privilege within this colony of boiling and preparing opium and the sole and exclusive privilege of selling the opium so boiled and prepared. It was declared an offence for any person to be in possession of prepared opium within the colony without the authority of the Opium Farmer. All prepared opium found in possession of any person in the colony which was not protected by a license from the Opium Farmer was liable under an order of the Magistrate to be forfeited and under section 35 the Magistrate was required, if he declared it forfeited, to adjudge it to the Opium Farmer.
The ATTORNEY-GENERAL-"In his discretion." I don't know whether you have noticed that.
Mr. FRANCIS-I quite understand, but as a matter of fact under all previously existing Ordinances in which these same words existed, the opium has always been adjudged to the Opium Farmer, and as a matter of interpretation I think that any Court would hold that under all ordinary circumstances the opium should be so adjudged. I can quite understand extraordinary circumstances might occur under which the opium would not be forfeited, but when the opium has been forfeited it has always been held that it should be adjudged to the Opium Farmer, and I don't think there could be a stronger argument in support of that interpretation than the existence of section 38. If it were in the discretion of the Magistrate at any time and any place to refuse to adjudge to the Opium Farmer any opium he declared forfeited, of course it became the property of the Crown and at the disposal of the Governor. But it was thought necessary to pass section 38, which makes another arrangement in the disposition, which is an exception from section 35, and which enabled the Magistrate in a certain class of cases to reserve the disposal to the Governor.
Section 39 is one that it is now proposed to amend, reads as follows: Notwithstanding anything in this Ordinance contained, any opium seized on board of any steamship bound or about to proceed to the ports of Canton and Macao and which does not appear on the manifest of such vessel shall if forfeited by a Magistrate be detained by him until the disposal thereof has been determined by the Governor in Council." Now, sir, we contend, on behalf of the Opium Farmer, that by the provisions of that Ordinance, as it stood he was entitled as of right to have handed over to him all opium declared forfeited by a Magistrate for any breach of the conditions of this Ordinance, except of course where the forfeiture was of opium seized on board a steamship and not on land. Now, sir, the Farm being constituted by virtue of that Ordinance, which was passed in November, 1891, tenders are called for by advertisement issued on the 9th December, 1891, and the period for sending in tenders was extended on the 31st December to the 19th January, 1892. The advertisement is to the following effect:-- "Sealed tenders will be received.........for the purchase of the entire privileges known as the Opium Farm established under the Prepared Opium Ordinance, 1891, for three years from March 1st, 1892." You will notice the phrase is "The entire privileges known as the Opium Farm," and our contention is that part of the privileges, part of the thing we purchased, in accordance with that definition, was the right to have delivered over to us by the Magistrate...
Enclosure 2 10082 24
The Daily Press.
HONGKONG, APRIL 17TH, 1894.
HONGKONG LEGISLATIVE COUNCIL.
A moeting of the Legislative Council was held yesterday. There were prosent-
H. E. the Acting Governor (Hon. G. T. M. O'BRIEN, C.M.(.)
Hoa. W. M, GOODMAN, Attorney-General, Hon J. H. STEWART-LOCKHART, Registrar- Genera).
Hon. N. G. MITCHELL-INNES, Colonial Treasurer.
Hon. R. M. RUMSEY, R.N,, Harbour Master. Hoa, C. P. CHATER.
Hon. Ho KAI.
Hon. J. J. KESWICK.
Hon. T. H. WHITEHEAD
Hon. E. R. BELILIOS, C.M.G.
Hon. E. BowDLER,
Mr. J. G. T. Buckle, Acting Clerk of Coun
cils.
X
X
x
THE OPIUM BILL.
HIS EXCELLENCY-We will now proceed to the order of the day. It only contains oue item. A motion was proposed and carried al the last meeting of the Council that bofore the second reading of this Bill the Opium Farmer should be allowed to be heard by counsel. I understand from my hon. friend on my left (the Attorney General) that the counsel should be heard before the motion for the second reading is put, and if the Council is agreeable that that is the most convenient conrso, I would ask the learned counsel who appears for the Opium Farmer to say whatever he has to say on the subject.
Hon. C. P. CHATER-Would your Excellency allow me to suggest thata message be sout to the bon, member whose chair is vacant Hoo J. J. Keswick) and who is no doubt absent owing to his not having noticed the alteration in tho: time.
HIS EXCELLENCY-Certainly. Probably Mr. Francis will deenpy some time,
Hon. C. P. CHAIER-I was very anxious that he should boar Mr. Francis.
HIS EXCELLENCY-I don't think we can wait. The Clerk was instructed to send a message. to Mr. Keswick, who arrived shortly afterwards. Mr. J J. FRAN IS, Q.C.-Your Excel-ney, i have the honour to appear here to-day on behalf of the Han Fook. a Chinese partnership in whom is vested by a grant from the Government dated 21st March, 1892, the oplam monopoly and all privileges connected therewith under the sathority of Ordinance 21 of 1891, commonly called the Prepared Opium Ordinance, 1591. I a pear here for the purpose, on behalf of the Hau Fook, of showing cause, as it wore, against the second reading of a Bill introduced and read a first time at the last meeting of this honour- able Council entitled An Ordinanco to Amend the Proparet Opium Ordinance 1891. I appar here by virine of the 52nd of the standing rates and orders of the Council and in accordance with the permission of the Council granted by a resolution moved by the hon. member who represents the Chamber of Commerce and seconded by the hon. member who represents the Chinese community; and my first duty is on bobalf of the Opium Farmers to return their hourly thanks to the mover and secouder of that resolution and to this honourable Council for the gracious permission grautod to me to appear here to-day and state their case before this Conncil.
I appear here, sir, to appose the passing of this Bill and probably the more convenient course in dealing with the subject will be to call attention, first, to the stato of the law which it is proposed to amend; secondly, to call attention to the mischief which it is desired to romedy by the amending Ordinance; and, third- ly, to point out in what respect the proposed amendment seems to interfere with the rights and privileges of the Opium Farmers. Now, the Opium Ordinanes, No. 21 of 1891, which |
was passed ou the 13th November, 1591. ostablishes and constitutes what is commonly! called the Opium Farm. It creates a monopoly in the preparation of opium and in the sale of the opium so prepared, and by that Ordinance all the privileges and all conditious and limita- tions which attach to the existence of the Farm were created. By virtue of that Ordinance the Governor was empowered to make a grant of the privileges created or constituted by that Or- dinance to some person or persons, to be there- after called the Opium Farmer or Farmors. By virtue of that Ordinance the Opinn Farmer was to have the sole and exclusive privilege within this colony of boiling and preparing opium and the sole and exclusive privilege of selling the opium so boiled and prepared. It was declared an offenco for any person to be in possesion of prepared opiam within the colony without the authority of the Opium Farmer. All prepared opium found in possession of any person in the golony which was not protected by a license from the Opium Farmer was liable under au order of the Magistrate to be forfeited and under section 35 the Magistrate was required, if be declared it forfeited. to adjudge it to the Opium Farmer. At first it would look as if the powers there given were simply permissive. As is usual iu Acts of Parliament and Ordinances the word "may" is used instead of the word "shal!," but it is perfectly clear that in case of a conviction before the Magistrato it was the duty of the Magistrate to declare the opium seized to be forfeited to the Crown and it was equally his duty to adjudge that opium to the Opium Farmer.
The ATTORNEY-GENERAL"Ia bis disere- tion." I don't know whether you have noticed that.
It
Mr. FRANCIS-I quite understand, but as a matter of fact under all previously existing Ordinances in which these same words existed, the opium has always been adjudged to the Opium Farmer, and as a matter of interpretation I think that any Court would hold that under all ordinary circumstances the opinm should be so adjudged. I can quite understand extraordin- ary circumstances might occur under which the opium would not be forfeited, but when the opium has been forfeited it has always been hold that it should be adjudged to the Opium Far- mer, and I don't think there could be à stronger argument in support of that interpre ation than the existence of section 38. If it were in the discretion of the Magistrate at any time and any place to refuse to adjudge to the Opium Farmer any opium he declared forfaited, of course it became the property of the Crown and at the disposal of the Governor. But it was thought necessary to pass section 38, which makes an- other arrangement in the disposition, which is an exception from section 35, and which enabled the Magistrate in a certain class of cases to
reserve the disposal to the Governor. Section 39 is one that it is now proposed to amend, reads 83 follows: Notwithstanding anything in this Ordinance contained, suy opinn seized on beard of any steamship bound or about to proceed to the ports of Cauton and Maoao and which does not appear on the manifest of such vessel shall if "forfeited by a Magistrate be detained by him aatil the disposal theroof has been determined by the Governer 22 Council." Now, sir, we 200- tend. on behalf of the Opium Farmer, that by the provisions of that Ordinance, as it stood ho was entitled as of right to have handed over to him all opium declared forfeited by a Magistrate for any breach of the conditions of this Ordin- ance, except of course where the forfeiture was of opium seized on board a steamship and not on laud. Now, si, the Furmo being constituted by virtue of that Ordinauus, which was passed in No. vewbr, 189, fenders are called for by advertise- ment issued on the 9th December, 1891, and the period for sending in touders was extended on the Slat December to the 19th January, 1892. T'ho atvertisement is to the following effect:-- "Sealed tenders will be received.........for the purchase of the entire privileges known as the Opium Farm established under the Prepared Opium Ordinance, 1891, for three years from March 1st, 1892." You will notice the phrase is "The entire privileges known as the Opium Farm," and our contention is that part of the privileges, part of the thing we purchased, in accordance with that dofinition, was the right to have delivered over to as by the Magis
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