9
18. It is easy to understand that a Chinese creditor will endeavour to make use of the Consul and try to settle his case without going before the Chinese Courts.
19. This is manifestly undesirable and even unjust to the debtor, and Your Excellency has ruled in C.S.O. 7672/1904 that in cases where Chinese are plain- tiffs they should be required to present themselves personally to the Consul- General and prosecute their claims in the Chinese Courts. Before they are granted an introduction to the Consul-General I require the Registrar General to enquire into the bona fides of the claim. This preliminary enquiry frequently results in the claim being thrown out.
20. I attach précis of cases referred to Consul-General in last 12 months. We are not informed, as a rule, of the results.
Enclosure 1 in No. 2.
F. II. MAY.
PRÉCIS OF CASES OF ABSCONDING DEBTORS REFERRED TO H.B.M.'s Cossui GENERAL, CANTON, FROM JUNE, 1904, To Juxe, 1905.
H.B.M.'s Consul-General.
Case.
Amount involved.
Application to
Wo Hing Tai Shop
$2,077.45
Wing Fung Shop.
37.
Heung Bing Firm
v.
Lam Wan Seung.
Result,
4706/01/C.S.O. of No result communicated.
29th June, 1904.
$1,011,54
7069/04/C.S.0, of
No result communicated.
5th October, 1904.
Fuk Tseung Poultry Shop
$380.00
?".
7672;04/0.8.0. of 27th Sept., 1904.
Leang Shu Tong,
+
Yee King Shop
K Lùng Tại Shop.
V.
$16,848,25
None.
Curreem & Co.
$5,135.25
:
8539/04/C.S.O. of 31st October, 1904.
Hling Loong Wo Shop.
Rumjahn & Co.
$5,335.22
1112/05/C.8.0. of 21st Feb., 1905.
1582;05/0.8.0. of 7th March, 1903.
V.
Wing Yee Shop.
No. 3 of 1905
21.
Creditors in Bankruptcy
Choy Taz Chong and Choy
! $15,941.92
2.
Tez Muk.
Creditors
Kang Chan Cheung Kee
Firm.
Wa Yick Co.
$18,000.00
U Shau Tin.
Su Wai Chuen
$28,000.00
Yee Shan Co.
3582/05/C.8.0. of 18th May, 1905.
3652 05/0.8.0. of 16th May, 1905.
4203/05 C.S.0, of 5th June, 1905.
Henng Shan, Magistrate, stated claim was a fraudulent one. Parties directed to appear be- foro him; no result communi- cated. Plaintiff in future to present himself before Cousul General.
No application received as yet from Solicitors for introduction to Consul General in accord- ance with routine laid down in 7672/04/C.8.0.
Particulars furnished by PlaintifÏ too meagre to effect recovery of amount.
Ko Won the defendant's where- abours not ascertained on 21st March.
No result communicated.
Manager of Firm arrested, Ar- rangements being made on 3rd instant for distribution assets.
No result communicated.
of
Plaintiff to present himself before Consul General. No result as yet communicated.
No. 3.
MINCTE BY THE HONOURABLE THE ÁTTORNEY GENERAL.
Hon. Colonial Secretary.
Attorney General's Chambers, 29th July, 1905.
1. The answer to the question raised by the Chief Justice "whether greater facilities should not be obtained from the Chinese Government for executing the civil judgments of the Hongkong Courts than is provided by Article 23 of the Treaty of Tientsin
would seen to be that no alteration in the language of the Treaty can afford greater facilities than is already provided by the letter and spirit of the existing Article.
11
2. It is difficult to conceive what more can be done in the direction of pro- viding for the execution in China of the judgments of the Hongkong Courts than is provided by the 23rd Article. After reciting that in ordinary course natives of China repairing to Hongkong to trade incurring debts there will be subject to the jurisdiction of the local Courts, the Article proceeds to declare that where a Chi- nese debtor possessing property in China absconds from Hongkong the Chinese authorities shall, on application by and in concert with the British Consul, “do their utmost to see justice done": that is to say, shall exercise all their power to ensure payment of the debt. Such an agreement, faithfully executed by the Chi- nese authorities "on the application of and in concert with the British Consul," gives a Hongkong creditor a far greater chance of recovering a debt from an abs- conding Chinese debtor than he would have even could it be made a term of the Treaty that a Hongkong judgment might be forthwith excented in China by the Bailiff of the Supreme Court.
3. I concur generally in the views expressed by you in your Minute of 17th July, 1905.
"a
from
4. I do not agree with the Registrar in thinking that the execution of Hong- kong judgments in China would be "facilitated" by substituting
request the Supreme Court" for the present procedure. As there is no "court" properly so called in China which the Supreme Court could address, the request contemplated by the Registrar would presumably have to be made by the Supreme Court to the Viceroy. Apart from the novelty, to say nothing of the official irregularity, of such a proceeding, there is no reason to suppose that the Viceroy would pay greater attention to a "request" from the Supreme Court than he now does to an "applica tion" from the British Consul.
5. The suggested procedure by way of request from the Supreme Court would moreover be ineffective if not unworkable for want of machinery of its own by which the Supreme Court could bring pressure to bear in support of its request". It is clear that in any given case of unwillingness or refusal on the part of the Viceroy to execute a judgment on request of the Supreme Court the ultimate re- sort would have to be to diplomacy.
6. The benefit of the Treaty, whether Article 23 be altered in phraseology or Dot, can necessarily only be obtained by diplomatic means; and the readiest as well as the legitimate medium of communication with the Viceroy is the Consul-General at Canton, using his good offices at the request of the Governor of the Colony,
7. The Consul-General acts properly, in my opinion, when he refuses to move except at the request of the Governor for only s has he any guarantee that the clain which he is asked to assist in enforcing is made in good faith.
8. The British Consul, it appears, has on occasions been asked to apply to the Viceroy to assist in enforcing payment of an alleged debt before the creditor has obtained judgment in Hongkong. There may be cases where that procedure may properly be followed; but speaking generally I think a creditor should be required to establish his claim by a judgment in the Colonial Courts before the Governor moves the British Consul to intervene under the Treaty. In the absence of a judgment it must always be difficult to be sure that the claim is a good one.
278
No comments yet.
Private notes are available after approval.