'
Enclosure 2.
だ
Extract from "Houything Daily Mess" of 7. 9. 1812
Meeting of L.C. held on 6.6.1912.
(Hansard of
FULL COURT ORDINANCE, 1912. The ATTORNEY-GENERAL moved that the Council go into Committee
on the Bill entitled, "An Ordinance to make provision for the reconstitution of the Full Court."
The COLONIAL SECRETARY seconded, and the motion was agreed to.
Hon. Sir KAI HO KAI---As there are certain amendments proposed to be made to the preamble, I
propose that the preamble be read first so as to save time.
The ATTORNEY-GENERAL-In
the pre- amble the majority of the Law Committee recommended the deletion of the words after Supreme Court.
Hon. Mr. OSBORNE rose to speak.
HIS EXCELLENCY--You can sit down. Hon. Mr. OSBORNE--May I stand up! HIS EXCELLENCY---You can sit. Hon. Mr. OSBORNE-I would rather stand up.
4
HIS EXCELLENCY----Oh !
cases
Hon. Mr. OSBORNE-I beg to move as an amendment that the following words be omitted from the preamble and that the whole of the recommendations of the majority of the Law Committee of this Council he adopted. These words are:-- And to make provision for the appoint- ment of a temporary judge in where a sufficient number of permanent judges are not available." For several years past it has been increasingly evident that the system of appeal now in vogue by which the Chief Justice may be called upon to review his own deci sions is unsatisfactory, and this feeling of dissatisfaction as to the existing state of affairs has culminated in the Bill before Council. As to the necessity fr some reform in the constitution of the Appeal Court there is, I believe, no difference of opinion, and it is only when we come to consider the means by which the reform shall be effected that dis agreement arises. The Government's proposal, as I understand it, is that the Judge of the Supreme Court for China, that is to say, the Chief Justice at Shanghai, shall attend in Hongkong for two periods of 15 days in each year, to sit with our own Judges as a Court of Appeal. The alternative proposal, ad- mitted on all sides to be a superior one, is that a third judge should be perman- ently appointed to our Courts. It is, I understand, the generally accepted opinion that the first proposal will be unsatisfactory and unworkable; whilst the alternative proposal of a third judge is eminently suited to meet the end we all have in view. The existing constitu- tion of our Appeal Court was formed in the year 1873, nearly 40 years ago, and to illustrate to what an extent its business has increased, it appears that in 1874 there were 1,016 Summary cases as against 1,868 last year; whilst cases in Original Jurisdiction rose during the same period from 50 to 200; that is to say, minor eases bave nearly doubled, whilst important cases, heard by the Chief Justice, have quadrupled. And yet our staff of judges has not increased in the slightest degree. The point to which I desire to direct attention is this: Will the appointment of a temporary
23.5.12, attached.)
judge from Shanghai in any way tend to solve this problem of increased work? Will his presence in this Colony for 15 days twice in a year enable appeal cases to be disposed of in a manner that will satisfy the growing requirements of the Colony A large appeal case might last, as it has done in the past, longer than 15 days, in which event I would like to ask what becomes of the other appeal cases remaining to be heard? Is their hearing to be postponed for five months waiting for the Judge's next visit from Shanghai And even though the Shang- hai Judge did manage to dispose of all the cases within 15 days, it is not im- probable he would have to so rush his work that he could not give the time he might rightly regard as necessary for a matured judgment and for discussion with his fellow judges; is it not con- ceivable that he would frequently find himself involved in the facts and points of law of A new case before he had properly digested those of its predecessor? Then, again, what are the qualifications of a Shanghai judge to sit in the Courts of Hongkong? Litigation in Hongkong is mostly between Chinese; cases whore Chinese customs and Chinese methods of accounting are frequently involved; intricate cases which for their dis- entanglement may need a comprehensive knowledge of local Chinese custom and character. The jurisdiction of the Shanghai judge on the other hand is confined entirely to British subjects or where British subjects are defendants, and I submit that it is open to question whether a judge whose experience is thus limited is qualified to sit for two short periods a year upon the Bench of Hong- kong. On the other hand, the advantages of a third permanent judge are mani- fold. We should have the work of the Courts carried on continuously by three men instead of two; we should have a Court of Appeal available during 12 months in the year instead of one month; in the event of one of the judges being indisposed we would still have two to continue the work; in the Court of Appeal, cases would be taken immediate. ly they become ready for hearing instead of having to wait five months for the judge from Shanghai; and there would be adequate time for a judge to arrive at a decision on one appeal case before having to consider the details of the next. To illustrate the possible hardships which might arise under the system of bringing in a judge from outside for 15 days in every six months, I will take two instances out of many that might be quoted. Take the case of a man victed of murder and a point being re served for consideration by the Full Court. Is it justice, would it be humane, for such a person to be subjected in the event of our two local judges differing, to five months' torture of suspense, pead- ing decision by the Shanghai Judge whether he shall or shall not be hanged? Or take the instance of a receiver being appointed in a partnership dispute where the Chief Justice's decision is appealed against and there ensues an interval of five months' waiting for the Shanghai judge; is it not probable that during this
con-
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