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dishonest conduct of litigation and of the proceedings incidental thereto; and that he had been guilty of the following mis- conduct :-
"(a) Champerty, the institution of a fraudulent claim, and the pre- paration of false evidence, in connection with O.J. Action No. 247 of 1913, Un Tak-kwong v. Un Ting Tsun.
(b) Champerty and the improper exploitation of litigants in con- nection with O.J. Action No. 105 of 1912. Ho Chiu-lam v. Ho Ngok-Lau.”
The statement of claim in the action was delivered on the 7th March, 1918,
The charges which formed the allegations on which Question 4, already referred to was based, included a further charge as to misappropriation of money collected for costs in another action, but this proved to be unfounded and was not pressed.
The question raised in these proceedings, and the only question on which their Lordships have entertained doubt, is whether it was competent to introduce as one of the charges, and as a ground for the order of deportation, the sweeping allegation that the appellant had made a general practice of champerty, and the other kinds of misconduct charged. It is true that this is followed by two specific instances of champerty and other misconduct, and if these had been given as examples of the general charge, their Lordships do not doubt that upon the explanation proffered being held insufficient, a deportation order could have been pronounced. But it is impossible so to treat this charge; for not only is the general allegation expressed as cumulative to the two particular cases charged in distinction from them as a separate head of charge, and numbered as distinct from the other charges, but in the order itself it is introduced as
a separate and distinct ground. If, therefore, by the provisions of the Ordinance a charge is inadmissible in such a form as a ground for making the order, the order itself is vitiated, because it is impossible to say how far the introduction of an inadmissible reason may not have affected the minds of the Governor and his Council. An order which might have been incapable of review the two specific charges, assuming the Governor in Council to have been satisfied that they cannot stand if it even may have been based on a ground which is not a legitimate one on which to proceed in depriving a British subject of his freedom of action. The importance of this consideration is not diminished by the circumstance that the reports made by the Secretary for Chinese Affairs to the Colonial Secretary
n accordance with Form 3 have not been produced.
Their Lordships have arrived at the conclusion, notwith- standing the reasons to the contrary contained in the careful judgments of the learned Judges in Hong Kong, that the pro- visions of the Ordinance do not warrant the making of an Order based upon such a general charge as that under consideration. The Secretary for Chinese Affairs on the 5th November, 1917, interviewed the appellant under Section 4 (6) of the Ordinance
and put to him questions purporting to be in accordance with Form 2 as prescribed. The nature of these questions has been already stated. The appellant objected to the proceedings, denying the truth of the allegations made, specifically as to those numbered 2, and distributed under sub-heads (a) (b) and (c).
Their Lordships are of opinion that it was not competent
to make against the appellant, who was a British subject, or to question him in accordance with it, the merely general allega- tion affecting his character, that he had made a practice of champerty and the other acts of misconduct mentioned. The Ordinance prescribes by Section 4 (14A) as already stated that, in the case of a British subject, its provisions are not to apply unless in the opinion of the Governor in Council, he comes within the category of, inter alia, a person who has been guilty of:
"Any criminal offence, or of any other misconduct connected with the preparation, commencement, prosecution, defence or maintenance of any legal proceeding, or the sharing in the proceeds thereof, or the settlement or compromise thereof, or the obtaining or preparation of evidence in anticipation thereof or in relation thereto,"
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Their Lordships are of opinion that these words describe only a person who has been guilty of a specific offence or specific misconduct on some particular occasion, and cannot be satisfied by showing that there is a person who is merely reputed, however justly, to possess the character of having made a general practice of the sort of misconduct referred to. This being so, for the reason already given, the decision come to by the Governor in Council cannot stand. For it affects the liberty of a British subject in a fashion which the Ordinance, construed strictly as it must be, does not warrant.
Their Lordships will therefore humbly advise His Majesty that the provisions of the Ordinance have not been complied with, and that the judgment of the Supreme Court of Hong Kong, dismissing the action, must be set aside and that a declaration should be made simply that the Order of the Governor in Council of the 15th January, 1918, was invalid. As the contest is one between the subject and the Crown, there will be no order as
to costs.
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