:
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3. In the later Minute Your Honour draws attention to the obvious differ- ence that exists between applications to the Chinese authorities made under the Treaty before action in the Hongkong Courts and after judgment has been given in those Courts, and while not specifically proposing that in the case of abscond- ing Chinese debtors Consular assistance should no longer be rendered except on a judgment by the Hongkong Courts, that is, should not be rendered in the case of a plaintiff wishing to recover in China from a debtor who had absconded to that country. Your Honour appears to be averse to such unusual Consular assistance and to be of opinion that a judgment of the Hongkong Courts should in all cases precede any attempt to obtain relief in China. I further gather from the Minute of the 26th August that the principal change which it is proposed should be made in Article 23 of the Treaty of Tientsin is to introduce a provision which will oblige the Chinese Courts to execute the judgments of the Hongkong Courts as a matter of course and without any question being raised as to the validity of those judgments.
4. It appears to me possible that the Chinese Government might consider a revision of, or rather an addition to, the Article in question of the Treaty of Tientsin on these lines but I cannot conceive their doing so without insisting on reciprocity, that is on effect being given by the Courts in Hongkong to judg ments of the Courts in China as far as they affect the property in Hongkong of Chinese subjects adjudged to be debtors to the Government of or to private persons in China. It does not appear to me that such reciprocity would be desirable. There is not, I understand, the same separation between the judicial and executive branches in China as there is in this and other British Colonies. In the case of actions between private parties in which the Government was in no way con- cerned it is possible that the judgment of the Viceroy, Governor, Prefect or Magistrate might be accepted as impartial though even in such cases it is pro- bable that the party resident in China and having access to the yamens there would be favoured at the expense of the party absent in Hongkong and having property in this Colony. In the case of the Government claiming that the pro- perty of a Chinese in Hongkong should be forfeited or was due to them it would be practically on an executive decision of the Provincial Chinese Government in its own interest that the Courts of Hongkong would be called upon to act and I do not think those Courts could possibly be put in that position.
5. My belief that, any attempt to obtain a revision of the 23rd Article of the Treaty of Tientsin would result in a claim for reciprocal treatment to China under that Árticle and that the Chinese view of such reciprocal treatment would be the giving effect by the Hongkong Courts to the executive decisions in matters of property of the Chinese Provincial Officials, is much strengthened by the somewhat remarkable letter of the* 31st October last from the Viceroy of the Two Kwang to the Consul General at Canton of which I annex a copy.
6. Regarding for the above reasous any modification of the Treaty of Tientsin in the direction indicated by Your Honour as impracticable it remains to be seen whether without revision of that Treaty the result desired can be attained either wholly or in part by instructions issued to H. M.'s Consuls in China and by legislation in this Colony.
7. It seems necessary to determine in the first instance whether it is or is not desirable that Consular assistance should be given to Hongkong creditors seeking to recover debts in China where no judgment has been obtained in the Hongkong Courts. Personally it seems to me that in many cases it might be advantageous for the creditor to take action in the first instance in the country where the debtor resides and where his property is situate, and I am doubtful whether the interested persons in this Colony would be agreeable to such assist- ance us they may hitherto have received in such process being in the future with- held from them. On this point I should like to have a definite opinion from Your Honour who may think fit to make further enquiry into local views of the matter.
* Not printed.
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8. In the case of debts with regard to which judgment has been given in the Courts of Hongkong, I see on the face of it and subject to the concurrence of H. M's Minister at Peking no reason why the procedure indicated in the 5th paragraph from the end of the Minute of August 26th (commencing "The pro- cedure to be adopted") should not be followed, though the proposed letter of request to the Chinese Court from the Court of Hongkong secus unnecessary as such a letter would be written by the Consul General to the Viceroy on receiving from the creditor or his solicitor the certified copy of the judgment. The principal change in the proposed procedure from that at present in force would seem to be the elimination of the Hongkong Government as a means of conveying the judgment of the Hongkong Court to the Consul General and the substitution in some cases of the creditor's solicitor. I would be glad to learn the exact word- ing of the instructions which Your Honour would wish given to H. M.'s Consular Officers if the procedure recommended is adopted.
9. To utilize the above procedure for the recovery of debts due to estates in bankruptcy on the application of the Official Receiver it would seem necessary
to put the Receiver in the position of a judgment Creditor. Your Honour will be able to tell me whether this can be done under the existing law or whether further legislation is necessary.
10. As pointed out in the penultimate paragraph of the Minute of the 26th August a judgment of the Court would be required to establish the liability of contributories to pay calls in winding up companies. I should be obliged by Your Honour informing me whether when such a judgment has been obtained the persons liable to pay the calls could not be treated as judgment debtors and the same procedure as in the case of other judgment debts followed.
11. I enclose for facility of reference a printed copy of the correspondence which has passed on the subjects discussed in this letter.
No. 6.
I have, etc.,
M. NATHAN.
HIS HONOUR THE CHIEF JUSTICE TO HIS EXCELLENCY THE GOVERNOR.
Supreme Court, Hongkong, 31st January, 1906.
SIR,-I have the honour to acknowledge Your Excellency's letter of 29th November, 1905, on the subject of my criticisms of Art. 23 of the Treaty of Tientsin, and my proposals for improving the procedure thereunder. The delay in replying to it has, I regret to say, been unavoidable: it has taken some time to ascertain the views of the legal profession on the point referred to in para. 7 of Your Excellency's letter: and was anxious myself to take full time to recon- sider all the important questions involved, so that, in the event of Your Excel- leney deciding to bring the nuatter before the Home Government, the case should be forwarded in as complete a manner as possible.
2. Your Excellency has dealt in paras. 4 and 5 of the letter under reply with the important question of reciprocity. Looking at this question in the abstract I should say that it might be ignored. The Foreign Office bas, I think, never considered reciprocity as possible in matters such as the one now under consideration in the case of countries in which Great Britain has obtained extra- territorial privileges. The practice seems to have been to deal with any claim for reciprocal action on its own merits, and apart from our own Treaty rights: in some cases acceding to the claim, as in the case of extradition to China from Hongkong. But looking at the question from a practical standpoint, and taking into consideration the letter of the Viceroy annexed to Your Excellency's letter, it seems incontestible that if a revision of Art. 23 were now suggested an attempt would be made by the Chinese Government to obtain reciprocal concessions.
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