of
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9. If it is true as the Official Receiver believes that in cases of bankruptcy Foreign Consuls are able to obtain for creditors who are their nationals possession property of debtors situate in China an 1 so obtain unfair advantage over British creditors that fact may indicate diligence or diplomatic influence on the part of the foreign creditors or their Consuls superior to that displayed by the British: but it is no proof of the inefficacy of Article 23 if proper advantage be taken of its very elastic provisions.
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seems to me that Article 23 as it stands affords an exceptionally effect- ive means of realizing in China the fruits of a judgment obtained in Hongkong.
No. 4.
H. S. BERKELEY.
MINUTE BY HIS HONOUR THE CHIEF JUSTICE.
His Excellency the Governor,
Supreme Court, 26th August, 1905.
I have read the minutes of the Hon. Colonial Secretary and the learned Attorney General with great care, and submit the following remarks upon them for Your Excellency's consideration. These remarks must necessarily be very lengthy for the subject is both important and complicated, and I propose to analyse these minutes sentence by sentence; but speaking broadly I venture to think that both my friends have devoted their attention too exclusively to one aspect of Article 23 of the Treaty of Tientsin, and in so doing have misconceived both the object and scope of my proposal.
2. It will be convenient to start this minute with the text of the Article which is as follows:-
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"Should natives of China who may repair to Hongkong to trade incur debts "there, the recovery of such debts must be arranged for by the English Court of Justice on the spot; but should the Chinese debtor abscond, and be known to "have property real or personal within the Chinese territory, it shall be the duty "of the Chinese authorities on application by, and in concert with, the British "Consul, to do their utmost to see justice done between the parties."
3. Now putting all questions of strict construction on one side it is I think clear that the drift of this Article is to provide for the recovery of debts incurred in Hongkong, by Chinamen trading in Hongkong: and it does so in two ways: it recognizes first the right of the English Courts to “arrange for the recovery of debts in Hongkong: secondly it provides that when the Chinese debtor has abs- conded from Hongkong the Chinese authorities, on the application of the British Consul, shall do their utmost to sco justice done between the parties." But this absconding may occur either before action, or after judgment. These two points are not kept distinct in the Colonial Secretary's minute, but they must obviously be governed by entirely different principles. It will appear from the analysis of the Minute Papers put up in which applications under the Article have been male, that the Colonial Secretary's remarks are directed almost entirely to cases where the absconding has been before action in the Hongkong Courts, whereas my suggestion relates almost exclusively to absconding after judgment. And speak- ing generally I think his criticisms of the various memos, which were annexed to my letter have been based on his experience of applications for Consular assistance before action. The proper way of dealing with abscondling before judgment, is an entirely different question, which forms the subject of my letter in Minute Paper No. 4871/1905 C.S.O., and which I am dealing with in a separate minute.
4. In this minute I shall confine my remarks almost entirely to the cases where the Courts of Hongkong have been resorted to and judgment has been given. This being so I find some difficulty in dealing with the Colonial Secretary's minute, for
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in some cases what appear to be criticisms of my proposals, may only be criticisms of those proposals as he views them, and might not have been made had he ap- proached the question from my standpoint. I think it better however to deal with them as if they were intended to apply to my proposals to give greater effi- cacy to judgments of the Hongkong Courts.
5. It will however be convenient if I deal at once with the procedure by way of Consular assistance before action brought: in doing so I must consider the very old-fashioned provision (drafted when the Common Law Procedure Act had not long been in force, and when the procedure in Hongkong was in a most primitive condition) by the light of the modern science of procedure.
6. It was assumed, and rightly, in the first part of Article 23 that a China- man in Hongkong could be served with a writ and sued in the Hongkong Courts.
7. It was assumed in the second part, and speaking very broadly the assump- tion was correct, that when once the Chinaman returned to China he could not be sued in the Hongkong Courts. The modern procedure against absent defend- ants was then in its infancy even in England, consequently a provision was in- serted in the Article dealing with this case. There being no remedy in Hongkong, recourse could only be had to the Chinese Courts; but as there existed doubts as to the efficacy of these tribunals the assistance of the Consal-General was allowed to be invoked, and in order to give back-bone to the Chinese Courts, they were enjoined to act in concert with the Consul-General.
8. Now, an action can be brought in the Hongkong Courts against absent Chinamen in certain defined cases: and I should say that the rules governing the practice would apply in nine cases out of ten. In the summary of the Minute Papers put up, which is attached as an appendix to this minute, it will be seen that an action could, in practically every case, have been brought in Hongkong, which could have been prosecuted to judgment.
9. My own opinion is that it would be much better for all parties if this procedure were made compulsory by withdrawing the unusual Consular assist- ance; that this would save much trouble, annoyance and expense: that fraudu- lent claims would be as easily detected by the Supreme Court as by an extem. porised tribunal composed of the Colonial Secretary, Registrar General and Con- sul-General: that such claims are less likely to be brought before a regularly constituted Court: and above all, that it is more othodox procedure in these days, as the Courts have from time immemorial expressed disapprobation at the ousting of their jurisdiction. But I am not pressing this opinion for acceptance now. I am quite content to let the old cumbersoine procedure exist side by side with the regular procedure by way of action. It has this advantage that it recognizes the alternative remedy which every plaintiff bas of suing in the Courts of the country where the defendant is resident.
10. The point I am insisting on is that the judgments of the Hongkong Courts should have more vitality given to them in China than they have at present, and should be enforced by the Chinese Authorities with the assistance of the Consul- General if necessary, but without further formality or examination of the claim. When once this is done, then I have little doubt that the procedure of the Courts would be resorted to in nearly all cases; and the old-fashioned procedure now in use would die a natural death.
11. I do not think that the answer given by the merchants to Lord CHARLES BERESFORD can be taken at all to conclude the question I have raised. It was a broad general answer to a bluff question. The particular issue now raised is not likely to have been present in the minds of the persons to whom the question was put: it was obviously not a time to go into details-more especially somewhat technical ones.
This question moreover is one which though it concerns the merchants, is more prominently in the minds of their legal advisers. But, pat at its lowest point, the question raised does in fact come within the expressed wish to "see our rights under the Treaty enforced". It appears clearly from the papers attached to my original letter that this is fundamental to the whole case, that the rights under the Treaty are not enforced. I make bold to say that if this question were put to the lawyers in the Colony-"What improvement is necess- ary to put the commercial relations between Hongkong and China on a surer basis than it is at present ?" the unanimous answer would be: "Amend Article 20 of the Treaty of Tientsin."
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