[ { "id": 290171, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 335, "title": "CO129-161 - Public Offices - 1872", "content_text": "Land\n\n1\n\n330\n\nere long, occupy your Lordship's attention, and of such importance to the prosperity and advancement of the Colony that I hope I shall be excused for venturing, uninvited, to address your Lordship upon it.\n\nThe printed draft of \"Code of Civil Procedure\" which accompanies this Memorandum, prepared by me where I was assisted in its compilation by Mr. Stayllar, the present Acting Attorney General of the Colony, who for some years practised at the Bar in Bombay under the Indian Code of Civil Procedure. This Draft, though in a very imperfect state, will show how the fusion of Law and Equity can be effected and legal Procedure and Practice consolidated in one uniform and simple system.\n\nPage 1\n\n...\n\nPage 330", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290172, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 336, "title": "CO129-161 - Public Offices - 1872", "content_text": "Land\n\nShould your Landrip worthy of adoption in Hong Kong,\n\nconsider it\n\nI shall have much\n\npleasure in\n\nrevising\n\nand completing\n\nthe\n\nDraft which at present\n\nis\n\nmere\n\nа\n\n\"ébauche\n\nI have the honor to be\n\nYour Lordship's Most obedient Servant\n\nJulian Pouncefote.\n\nAllarny\n\nSeveral of Hong Ko\n\n1\n\n# MEMORANDUM on the Constitution and Procedure of the Courts of Justice of the Colony of Hong Kong, together with Suggestions for the Amendment of the Law.\n\nI have the honor very respectfully to submit to the Right Honourable the SECRETARY OF STATE FOR THE COLONIES the following remarks on the Constitution and Procedure of the Law Courts of the colony of Hong Kong, in the hope that they may prove of some utility in the event of any legislation being contemplated on the subject.\n\nThe views which I entertain are founded upon the experience of ten years' practice at the Hong Kong Bar, in every branch of the Law; and as I have also temporarily filled the office of Chief Justice of the Supreme Court, and that of Judge of the Court of Summary Jurisdiction, I have had the opportunity of considering the question from every point of view.\n\nNo one having resided as long as I have in Hong Kong, and having had the privilege to fill the important offices which have been entrusted to me, could fail to take great interest in its progress and welfare; and it is in that spirit that I proceed to give a slight Apercu of the Administration of Justice in the colony, and that I venture, with great diffidence, to offer a few suggestions for its amendment.\n\nThe Supreme Court of the colony of Hong Kong was established about twenty-five years ago, under Ordinance No. 6 of 1845.\n\nBy Section 4 (supplemented by Section 3 of Ordinance No. 2 of 1846) it is enacted that the Law of England and the Practice of the English Courts existing on the 5th day of April, 1843 (when the colony received a local legislature), should, subject to their applicability to the local circumstances of the colony, be in force therein.\n\nBy Section 5 it is provided that the Court shall consist of a Judge, to be called “the Chief Justice,\" although no provision is made for the appointment of Puisne Judges. This peculiarity was the subject of remark on the hearing of a recent Appeal Case from the Supreme Court of Hong Kong to the Judicial Committee of the Privy Council. (Rodger v. The Comptoir d'Escompte de Paris).\n\nBy Sections 14 and 15 a full legal and equitable Jurisdiction is conferred upon the Supreme Court, commensurate with the Jurisdiction of the Courts of Common Law and Equity in England.\n\nSince the establishment of the Supreme Court upon the same footing, as to Practice and Procedure, as the English Courts, various Ordinances have been passed introducing into the colony the provisions of many of the more recent Imperial Statutes for the amendment of the Law. Thus, the Common Law Procedure Acts, 1852 and 1854, are in force by virtue of Ordinance No. 6 of 1855, and the reforms in the Chancery Procedure of England were introduced in the colony by Ordinance No. 7 of 1856 and other later enactments. It has not been possible, however, to keep pace with Imperial Legislation, and no Rules or Orders of the Supreme Court have been made to regulate the Practice under new Ordinances for the amendment of the Law, though portions of the Rules and Orders of the English Courts, in reference to the same subject matter, have from time to time been incorporated into the Colonial Law. It follows, therefore, that although the Law, Practice, and Procedure of the Supreme Court is substantially similar from the institution of every suit to its termination, to that of the Courts of Common Law and Equity in England, it is far more incomplete and imperfect.\n\nNotwithstanding the valuable reforms in the Law which Imperial Legislation has achieved during the last twenty years, there can be no doubt that the legal Procedure now in force in the Supreme Court of Hong Kong is still intricate, expensive, lengthy, and ill suited to the conditions of the Colony. A vast deal of time and money are wasted over arguments arising out of Special Pleading and technicalities of Practice, which are incomprehensible and irritating to the suitor, and which in most cases do not touch the merits of the real question at issue. The Advocates are called upon to argue and the Judge to decide points of this kind in every branch of the Law, any one of which is considered in England sufficiently difficult to constitute a speciality and to induce Members of the Bar to devote themselves exclusively to its study and practice.\n\nThese very considerations led to the introduction in India of the New Code of Civil Procedure and to the fusion of Law and Equity in one simple system, which after a long trial has fully justified the expectations of the distinguished Lawyers by whom it was devised, notwithstanding Lord SELBORNE's prediction that the fusion of Law and Equity would prove to be their \"confusion.\"\n\nThe Rules of Procedure in force in Her Majesty's Supreme Court for China and Japan are modelled on the Indian Code, and are admirably suited to the transaction of Legal Business in the East from their extreme elasticity, clearness, simplicity, and common sense.\n\n1434\n\n331", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290173, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 337, "title": "CO129-161 - Public Offices - 1872", "content_text": "In Hong Kong the necessity for a simple Process for the recovery of Small Debts soon became apparent, and a Summary Jurisdiction was conferred by Ordinance upon the Supreme Court in cases where the sum in dispute did not exceed five hundred dollars. The increase in the population and trade of the colony soon called for further Legislation in this direction, and Ordinance No. 7 of 1862 was passed, under which a separate Court of Summary Jurisdiction was established with a Common Law Jurisdiction up to five hundred dollars. The Judge of this Court is liable to be called upon by the Chief Justice to try or hear any causes or matters depending in the Supreme Court, subject in all cases to an appeal to the Chief Justice from any judgment or order he may pronounce.\n\nIt will be observed that the Judge of the Court of Summary Jurisdiction is not a Judge of the Supreme Court, but is at the beck and call of the Chief Justice, who can order him to transact his business for him whenever he pleases. This is a very unsatisfactory provision and adds to the expense of litigation, as the unsuccessful party can appeal to the Chief Justice, and is obliged to do so if he contemplates an appeal to the Privy Council.\n\nThe Court of Summary Jurisdiction is in fact similar to an English County Court without the Equity, Bankruptcy, Probate, and Admiralty Jurisdictions, which are possessed by the latter, and therefore unless the matter involved be purely the subject of an action at Common Law the litigants must still resort to the lengthy and costly process of the Supreme Court, however small may be the sum in dispute.\n\nI am convinced that a Reform in the Constitution, Jurisdiction, and Procedure of the Supreme Court would be attended with the most beneficial results. The colony of Hong Kong has undergone a marked change in many respects during the last five years. Formerly the great trade of the place was in the hands of a few leading firms of great wealth. Since the commercial crisis of 1865, and the collapse of some of the most important mercantile houses, a great portion of the trade of the colony has become distributed among numerous small firms of all nationalities. Public Companies have been formed with limited liability, for a variety of purposes, such as Banking, Marine Insurance, Steam Navigation, Docks, Piers, Distilleries, Refineries, &c. There is an eager competition for business, and constant disputes arise which require adjustment by a simple, expeditious, and cheap process of Law, instead of the slow, ponderous, intricate, and expensive machinery of the Supreme Court, which is found so ill suited to the present rapid pace of commercial life in China, that no one dreams of venturing into Court, who can possibly settle his case by arbitration or compromise. The consequence has been that nearly all the Members of the local Bar have by degrees retired from the colony.\n\nWith regard to Admiralty Proceedings there is undoubtedly an urgent necessity for reform. The Supreme Court of Hong Kong exercises that Jurisdiction as a mere branch of the High Court of Admiralty, and the Colonial Government has no power to legislate on this subject. It is clear, however, that a Summary Jurisdiction in Admiralty for small causes is most urgently required, and has long been pressed upon the attention of the Government, owing to the cases of hardship which frequently arise; as, for instance, where a junk of small value is found derelict, or in the possession of pirates, the expense of obtaining its restoration to the owner is often as great as its value.\n\nThere are various other matters connected with the administration of the Law, to which I shall refer after dealing with the most important of all, namely, that which relates to the Civil Procedure and to the Constitution of the Supreme Court.\n\nFirstly,--As regards Civil Procedure.\n\nA simple, expeditious, and cheap system of Procedure are attractive words, and sound, perhaps, somewhat utopian. It must be remembered, however, that the colony of Hong Kong is behind the age in this respect, having regard to the success which has attended the introduction of the Civil Code of Procedure for India. The Indian Code is the ground work upon which the Rules of Her Majesty's Supreme Court for China and Japan were framed, and it is remarkable that the Report of the Judicature Commission recommends the adoption of substantially the same system in England.\n\nI enclose copies, firstly, of the Indian Code of Civil Procedure; secondly, of the Rules of Her Majesty's Supreme Court for China and Japan; thirdly, of the first Report of the Judicature Commission; and fourthly, of a Draft Code of Procedure which I recently framed, and which is modelled on the Indian Code and the Rules of Her Majesty's Supreme Court for China and Japan. Owing to my sudden departure from the colony in September last, on account of illness, this draft is in a very crude state, and indeed is merely the first uncorrected proof from the printer; but it is intended to form a complete system of Practice and Procedure, both at Law and in Equity. The only subject which is omitted is that of Interpleader; but I have it in manuscript, and can supply it at any time if required.\n\nThe division of this Draft Code which is headed \"Foreign Attachment,\" is one of considerable importance, and is intended as an amendment of the very imperfect Law of Foreign Attachment.\n\nEnclosures\n\n1. Memorandum on the Admiralty Jurisdiction\n\n2. Indian Code of Civil Procedure\n\n3. Rules of H.M. Supreme Court for China and Japan\n\n4. First Report of the Judicature Commission\n\nDraft Code of Civil Procedure for Hong Kong", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290174, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 338, "title": "CO129-161 - Public Offices - 1872", "content_text": "333\n\nAttachment, introduced into the colony by Ordinance No. 2 of 1855. It might form a separate Ordinance on this subject, if preferred.\n\nThe Report of the Judicature Commission contains several new and valuable suggestions, most of which might be incorporated with advantage in the proposed New Code for Hong Kong.\n\nSecondly, As regards the Constitution and Jurisdiction of the Supreme Court.\n\nI am disposed to think that it would be desirable to abolish the Court of Summary Jurisdiction as a separate Court, and to confer upon the Supreme Court a Summary Jurisdiction similar to that of the County Courts of England, in Equity, Common Law, Admiralty, and Bankruptcy limited to such amounts as may from time to time be deemed expedient. The Procedure, Rules, and Forms, of the County Court Acts might be adopted with slight modifications to suit the circumstances of the colony, so that the New Code of Procedure which I have suggested, would apply only to the superior as distinguished from the inferior or Summary Jurisdiction of the Supreme Court.\n\nIn order to carry out this scheme, it would be necessary to turn the Judge of the Court of Summary Jurisdiction into a Puisne Judge of the Supreme Court, and to provide for the appointment of a Second Puisne Judge in the event of any increase of legal business rendering it desirable.\n\nSome inconvenience might be felt at first in having a Chief Justice and only one Puisne Judge, but it would be preferable, in my opinion, to the present arrangement.\n\nThe order and distribution of business might be regulated by the Chief Justice, but both the Judges should have co-extensive powers with respect to the transaction of all business in the Supreme Court, whether in its superior or summary Jurisdiction, with this exception that all points of Law should be argued before both Judges, and that, in case of disagreement, the Judgment of the Chief Justice should prevail. Although the decision would thus be practically that of the Chief Justice, yet the presence of another Judge on the bench would be of great assistance to him, and, on the other hand, would operate, in a certain degree, as a check against ill-considered, capricious, or oppressive Judgments. In the event of a second Puisne Judge being appointed, the decision of the majority of the Court would, of course, prevail.\n\nCases of very considerable magnitude and importance occur in Hong Kong, both in civil and criminal matters, and it is very unsatisfactory that the difficult points of Law, which occasionally arise, involving very important rights and interests, should be argued before one Judge only.\n\nHaving regard, also, to the great distance from England at which the colony is situated, to the insalubrity of its climate, to the necessary interruption of the business of the Court, owing to the occasional illness or temporary absence of the Chief Justice, to the scarcity of persons on the spot competent to fill Judicial vacancies, and to the inconvenience of allowing a Practising Barrister, to hold temporarily, the office of Judge in the same Court in which he practises, I believe that the appointment of a Puisne Judge of the Supreme Court in lieu of the present Judge of the Court of Summary Jurisdiction, would be found extremely advantageous.\n\nI am able to state that Governor Sir Richard Graves MacDonnell concurs in the above views as to the Constitution of the Supreme Court, and would most probably have submitted them to the consideration of the Secretary of State, had he not been compelled by ill health to return to England. The Appointment of a new Governor of the colony upon his retirement, offers a convenient occasion for inaugurating these important changes, should they be deemed worthy of adoption, and before closing these remarks I will offer a few suggestions on some miscellaneous subjects of Legislation.\n\nThe Law of Evidence.-The English Law of Evidence which prevails in Hong Kong is in a great many respects unsuited to the conditions of the colony, especially as regards the administration of Criminal Justice. I believe that the French System of preliminary investigation of charges by a Juge d'Instruction (with the exception of the Prison de Prévention, which is the great blot in the French Criminal Process,) would work infinitely better among the Chinese than our own, provided it be carried out by the Magistrates in Open Court. With respect to the Law of Evidence in general a most learned and interesting speech was recently delivered in the Legislative Council at Calcutta by Mr. Fitzjames Stephen, Q.C. on the occasion of his introducing a Bill on the subject. It will be found in the Fort St. George Gazette Supplement of the 16th of May, 1871, page 183; and the new Indian Evidence Bill, as settled by a select Committee, is published with their Report in the Fort St. George Gazette Supplement of the 18th of July, 1871.\n\nThe adoption of this important measure in Hong Kong pari passu with a new Code of Procedure would no doubt prove of the greatest value.\n\nThe Law of Bankruptcy and of Fraudulent Debtors.-The Law of Bankruptcy in Hong Kong is in a very unsatisfactory state. It consists of Ordinance No. 5 of 1864, which is a mere transcript of the principal provisions of the Bankruptcy Consolidation Act, 1861. It falls very far...", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290253, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 417, "title": "CO129-161 - Public Offices - 1872", "content_text": "War\n\nLand\n\nMisca\n\nOF\n\n411\n\nProcedure of the Supreme Court is substantially the same as that which I had the honour to submit to the Earl of Kimberley in April last, together with a Memorandum on the whole subject now under consideration. Since my departure from Hongkong, it has been corrected by Mr. Hayllar, the present acting Attorney General (who assisted me in its original compilation), and it has been enlarged by the introduction of the clauses relating to \"Summary Jurisdiction\", which, as I have before stated, I think it would be better to insert in a separate Ordinance on that subject.\n\nSince my return to England, I have given much attention to the Indian Code of Procedure, and I am of opinion that many valuable provisions contained in it should be added to the Hongkong Code, while others relating to matters already provided for in...", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290254, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 418, "title": "CO129-161 - Public Offices - 1872", "content_text": "the Draft Ordinance might be substituted with advantage : I will specify the Provisions to which I refer at a later stage.\n\nPage 412\n\nThe first suggestion which I would make on the Code is that it should be divided into Chapters dealing as nearly as possible in consecutive order, with every step or stage in a suit from its Institution to final Execution - I have myself reconstructed it on that Principle dividing it into 14 Chapters, of which the following is an abstract.\n\nPreamble.\n\nShort Title.\n\nLaving Clause.\n\nOld Procedure abolished. New Procedure introduced.\n\nChapter I.\n\n1. Register of Civil Suits.\n\n(Indian Code S.38)\n\n2. Suits to commence by writ of Summons.", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290260, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 424, "title": "CO129-161 - Public Offices - 1872", "content_text": "# 4. Forms to be used.\n\n# 5. General Orders.\n\n# 6. Commencement of Ordinance.\n\nThe above Abstract of the Code as remodelled by me comprises, I believe, every Provision that could be required to a complete system of Procedure.\n\nThe Divisions which are marked \"Indian Code\" are intended to contain the additions and substitutions to which I have previously referred. All the rest is taken from the Ordinance as originally Drafted, the collocation only of the subjects being altered.\n\nI will now proceed to offer some remarks and Suggestions Seriatim on the proposed Code of Civil Procedure as amended in Hongkong.\n\nThe Title and Preamble I think the Title and Preamble should...", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290263, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 427, "title": "CO129-161 - Public Offices - 1872", "content_text": "421\n\nSome Acts contain Provisions giving a remedy in certain cases and defining the Practice and Procedure for obtaining it. Hence the use of the words which I have inserted and underlined \"so far as they relate to such Procedure and Practice.\"\n\nSections 6 14.\n\nThese Sections are taken from the Shanghai Rules - I recommend the substitution of Sections 142 and 143 of the Indian Code.\n\nSections 15-44.\n\nThese Provisions consist of the Summary Jurisdiction Ordinances consolidated- and which I think should be the subject of a separate Ordinance.\n\nSections 45-51.\n\nThe Summary Remedy on Bills and notes appears in my Abstract among the special Suits collected in Chapter XII.", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290270, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 434, "title": "CO129-161 - Public Offices - 1872", "content_text": "Sections 173-179.\n\n428\n\nThese Sections from the Shanghai Rules seem to me to deal more satisfactorily with Judgment Debtors than the Indian Code and should, I think, be retained.\n\nSections 180-185.\n\nThese Sections from the Common Law Procedure Act 1854 (and Ordinance No 6 of 1855) are most useful - I cannot find any similar Provisions in the Indian Code for the Compulsory Examination of Garnishees.\n\nSections 186-201.\n\nThese Sections introduce into the Code of Procedure the Process of Foreign Attachment. This Process is substantially founded upon the Custom of Foreign Attachment in the City of London. It was introduced into the Colony of New South Wales by 2. Will. IV c. 7.", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290328, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 492, "title": "CO129-161 - Public Offices - 1872", "content_text": "An uneducated person, though innocent, is as much computed, than not understanding the information of the charge.\n\nEvidence being against him, an irrelevant statement tends to strengthen the presumption of his guilt. A few straightforward and pertinent questions would clear away such misunderstanding and enable him to understand the case, to state his bona fide defence, and to know what witnesses to call to support it. An old offender, more practised in the ways of the law, if caught, therefore makes a plain statement which a few questions would dispose of.\n\nI consider then that an interrogation conducted fairly by the Magistrate, after the accused has made his statement, if he has made one, before committal would be of great service in eliciting the truth.\n\nI entertain more doubt about allowing such interrogation at the trial. I refer to James Stephen's book, which states that it would tend to intimidate the prisoner.\n\nNo man who examines a wriggling witness and is really quite impartial...\n\nI would allow interrogation by Counsel for the prosecution at the end of the case for the prosecution and before the prisoner's defence.\n\nI confess to preferring interrogation by the Court to the latter mode of proceeding, and I do not believe that a fair, impartial Judge would be impaired by putting a few questions with a view to elicit the truth and clear up doubtful parts of the case.\n\nI.W. Ball, Esq., would permit the Judge to interrogate in Court, though he would not allow it to a Magistrate.\n\nAll this shows the difficulty of examination at the trial, and I am disposed to think that substantial benefit will have been attained by the interrogation of the Magistrate, as the case of the accused will then be made known.\n\nBy the Indian Code of Criminal Procedure, sec. 202, it is in the discretion of the Magistrate at any stage of the inquiry to examine the accused person and to put such questions to him as he may consider necessary, in the interest of the accused to answer such questions.\n\nBy sec. 205, the examination of the accused is fully recorded and read out as evidence on the trial.\n\nAt the close of the case for the prosecution, the Judge may put any question he thinks proper, and it is in the discretion of the accused person to answer.\n\nPage 486\n\nVer. 373.\n\n373\n\nThe Judge at the close of the case for the prosecution on behalf of the record, or if no such evidence is produced, at the close of the case for the prosecution may put any question he thinks proper, and it is in the discretion of the accused person to answer.\n\nIt will not impair the impartiality of the Judge.\n\nW 4\n\n \nPage 487", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 290334, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-161 - Public Offices - 1872", "page_number": 498, "title": "CO129-161 - Public Offices - 1872", "content_text": "Lancashire hearing By therefore the Magistrate or Court is authorised to put to the prisoner questions not, \"and torogate any question's which at may \"express option given to the prisoner to answer or not and consult.\n\n\"statutory declaration making \"prisoner says cordeme. know whether Juries 322 354 inclusive exuption It is India any what the I do not under suchons are the rule or the unnecessary for me to suggest whether the Indian Code is or not an improvement on the English Law or otherwise.\n\nIt is an entire Code professedly applicable to India alone; and con to us that to Framer and Lord Macauley I confess my inability to criticise it procedure but this I Dilarang Framand the Penal Code hot then the part of one of an entirely new Code with an all its adaptability of parts to the whole.\n\nThe third and last question is whether Ordinance No 3 of 1872 ought to be law in Hong Kong. Seker now now altered by Ordinance 492 has since 1688 been English Law; & as part of the same Law it has remained since 1844 up to this time unchanged in Hong Kong. It is I believe unquestioned rule that every law of long existing should be retained unless and until a necessity for change has been clearly substantiated.\n\nI disagree with the Acting General Mr. Hayllar when as Attorney General he says \"must be armed with the power of interrogating prisoners\". As to the practice in England authority agrees with him but he adds \"lamentable failures of justice sometimes this Colony under an unelastic criminal procedure it is not to be wondered at where asserts but he no one has ever asserted it is certain that no one has proved that there have been failures of Justice been asserted by the \"daily press\" that Ahdoola Moussa and W...", "txt_file_path": "txt/2diw2n4r2/CO129-161 - Public Offices - 1872.txt", "external_url": "", "rank": 0 }, { "id": 291351, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-164 - Sir Kennedy - 1873 [7-9]", "page_number": 30, "title": "CO129-164 - Sir Kennedy - 1873 [7-9]", "content_text": "# PREFACE\n\n1. The following Draft of a Code of Civil Procedure for the Supreme Court of Hongkong is intended to provide a uniform and more simple system of procedure for the administration of justice in the two principal branches of its jurisdiction, namely, at Common Law and in Equity.\n\n2. The Supreme Court was established by Ordinance No. 6 of 1845, and by Section 4 of that Ordinance, supplemented by Section 3 of Ordinance No. 2 of 1846, it is enacted that the Law of England and the Practice of the English Courts existing on the 5th day of April, 1843, when the Colony received a local legislature, should, subject to their applicability to local circumstances, be in force therein. By Sections 14 and 15 a full legal and equitable jurisdiction is conferred upon the Supreme Court, commensurate with the jurisdiction of the Courts of Common Law and Equity in England.\n\n3. Since the establishment of the Supreme Court upon the same footing as to Practice and Procedure as the English Courts, various Ordinances have been passed introducing into the Colony the provisions of many of the more recent Imperial Statutes for the amendment of the Law. Thus, the Common Law Procedure Acts, 1852 and 1854, are in force in the Colony by virtue of Ordinances No. 6 of 1855 and No. 5 of 1856, and the reforms in the Chancery Procedure of England were also introduced by Ordinance No. 7 of 1856 and other later enactments. It has not been possible, however, to keep pace with Imperial Legislation, and no Rules or Orders of the Supreme Court have been made to regulate the Practice under new Ordinances for the amendment of the Law adapted from Imperial Acts, though portions of the Rules and Orders of the English Courts, in reference to the same subject matter, have from time to time been incorporated into the Colonial Law. It follows, therefore, that although the Procedure of the Supreme Court of Hongkong is substantially similar, from the institution of every suit to its termination, to that of the Courts of Common Law and Equity in England, it is in many respects far more incomplete and imperfect.\n\n4. Notwithstanding the valuable reforms in the Law which Imperial Legislation has achieved during the last twenty years, there can be no doubt that the legal Procedure now in force in the Supreme Court of Hongkong is still intricate, expensive, lengthy, and ill suited to the conditions of the Colony. A vast deal of time and money are spent over arguments arising out of Special Pleading and technicalities of Practice, which are incomprehensible and irritating to the suitor, and which in most cases do not touch the merits of the real question at issue, and Advocates are called upon to argue, and the Judge to decide points of this kind in several branches of the Law, each of which is considered in England sufficiently difficult to constitute a specialty and to induce Members of the Bar to devote themselves exclusively to its study and practice.\n\n5. These very considerations led to the introduction in India of a new Code of Civil Procedure, which after a long trial has fully justified the expectations of the distinguished Jurists by whom it was devised.\n\n6. The Rules of Procedure in force in Her Majesty's Supreme Court for China and Japan, which are in a great measure modelled on the Indian Code, are admirably suited to the transaction of Legal Business in the East, and their clearness and simplicity commend them to the approval of suitors of all nationalities.\n\n7. The first Report of the Royal Judicature Commission, published in 1869, contains most valuable recommendations for the amendment of Legal Procedure and Practice, and it may be convenient in this place to give the following extracts from it, which relate to the most important of the reforms suggested:\n\n## Extracts from the first Report of the Royal Judicature Commission\n\nMuch may be done at the very commencement of a suit to prevent unnecessary litigation, delay, and expense. In a considerable number of suits there is no substantial question as to the right of the plaintiff to, at least, some relief. Frequently the object of the defendant is to gain time; sometimes he only disputes part of the claim, or of the amount.\n\nPage 30 \nPage 31", "txt_file_path": "txt/2diw2n4r2/CO129-164 - Sir Kennedy - 1873 [7-9].txt", "external_url": "", "rank": 0 }, { "id": 291352, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-164 - Sir Kennedy - 1873 [7-9]", "page_number": 31, "title": "CO129-164 - Sir Kennedy - 1873 [7-9]", "content_text": "# \n## iv\n\nIn other cases, such as administration suits, suits to take partnership accounts, suits for specific performance, and suits for foreclosure or redemption, it is often known from the first what order must be made upon the hearing of the cause. In many such suits, notwithstanding improvements recently introduced, the proceedings are still conducted as they are in suits involving a real question as to the plaintiff's right to relief. Considerable delay is thus caused, and useless costs are incurred.\n\nIn all suits, we think, should be commenced by a document to be called a **Writ of Summons**, and these writs of summons should be issued from one office. In all cases in which the plaintiff seeks to recover a money demand, whether founded upon a legal or equitable right, the practice established by the **Common Law Procedure Act, 1852**, should, we think, be adopted and the writ should be specially endorsed with the amount sought to be recovered, and in default of appearance the plaintiff should be allowed to sign judgment for it. Further, in all cases in which a special endorsement has been made on a writ, and the defendant has appeared, the plaintiff should be entitled, on affidavit verifying the cause of action, and swearing that in his belief there is no defence, to take out a summons to show cause why he should not be at liberty to sign judgment; upon which summons such order may be made as the justice of the case may require.\n\nIn like manner, in cases of ordinary account, as in the case of a partnership or executorship, or ordinary trust account, where nothing more is required in the first instance than an account, the writ should be specially endorsed, and in default of appearance, or after appearance, unless the defendant shall satisfy a Judge that there is really some preliminary question to be tried, an order for the account, with all usual directions, should be forthwith made. The Judge should also be empowered at any time, on summary application in Chambers or elsewhere, to direct, if he thinks fit, any necessary inquiries or accounts, notwithstanding it may appear that there is some special or further relief sought, or some special matter to be tried, as to which it may be proper that the suit should proceed in the ordinary manner.\n\nWhen the Defendant enters an appearance, and the suit has to proceed further, the issues between the parties must be ascertained by pleading, or otherwise. The systems of pleading now in use, both at Common Law and in Equity, appear to us to be open to serious objections. Common Law pleadings are apt to be mixed averments of law and fact, varied and multiplied in form, and leading to a great number of useless issues, while the facts which lie behind them are seldom clearly discoverable. Equity pleadings, on the other hand, commonly take the form of a prolix narrative of the facts relied upon by the party, with copies or extracts of deeds, correspondence, and other documents, and other particulars of evidence, set forth at needless length. The best system would be one, which combined the comparative brevity of the simpler forms of Common Law pleading with the principle of stating, intelligibly and not technically, the substance of the facts relied upon as constituting the plaintiff's or the defendant's case, as distinguished from his evidence. It is upon this principle that most modern improvements of pleading have been founded, both in the United States and in our own colonies and Indian possessions, and in the practice recently settled for the Courts of Probate and Divorce.\n\nWe recommend that a short statement constructed on this principle, of the facts constituting the plaintiff's cause of complaint, not on oath, to be called the **Declaration**, should be delivered to the defendant. Thereupon the defendant should deliver to the plaintiff a short statement, not on oath, of the facts constituting the defence, to be called the **Answer**. When new facts are alleged in the **Answer**, the plaintiff should be at liberty to reply. The pleadings should not go beyond the reply, save by special permission of a Judge; but the Judge should, at any stage of the proceedings, permit such amendment in or addition to the pleadings as he may think necessary for determining the real question or controversy between the parties, upon such terms, as to costs and otherwise, as he may think fit.\n\nWe think, that a defendant, having a right or claim against a plaintiff with reference to the subject matter of the suit, or arising out of the same transaction, which at present he cannot enforce without a separate or cross action or suit, should be at liberty to bring forward such right or claim by his **Answer**, which, in that case, should have the same effect as if it were a declaration in a cross action or suit, so as to enable the Court or a Judge to pronounce a final judgment between the parties with respect both to the original and to the cross demand. The same principle might, we think, be extended to the recovery of other demands of the defendant, capable of being set off against the plaintiff's demand, when the balance is in favour of the defendant. But a Judge should be empowered, on application by the plaintiff before trial, to refuse permission to allow such cross right or claim to be brought forward, if he shall be of opinion that it cannot conveniently be adjudicated upon in the case to be tried.\n\nWe think also, that the Court should have power to direct that any person not originally a party to the suit, but who may have such an interest in the subject matter thereof as to make his presence necessary or expedient to enable the Court to do complete justice, should be summoned to attend the further proceedings and be bound thereby; and that, with this view, the plaintiff should be at liberty to make any person, against whom he may conceive himself to be entitled to relief, a party defendant to the suit. And, on the other hand, that, where the defendant is or claims to be entitled to contribution or to indemnity or other relief over against any other person or persons, or where from any other cause it shall appear to the Court, fit that a question in the suit should be determined, not only as between the plaintiff and defendant, but as between the defendant and any other person, the Court should have power to make such order as may be proper for the purpose of having the question so determined.\n\n## 8\nThe Draft of a Code for the Supreme Court of Hongkong which I have prepared consists of One hundred Sections, divided into Five Parts and Twenty Chapters. It deals in consecutive order with the proceedings in a suit from its institution to the final decree, and is mainly compiled from Imperial Acts and Local Ordinances, the Code of Civil Procedure of India, the Rules of Her Majesty's Supreme Court for China and Japan, and the Report of the Royal Judicature Commission. It will be observed that in the margin of each Section there is a reference to the Act, Ordinance, Code, or Rule, from which it is adopted, so that any detailed explanation of its Provisions is unnecessary.\n\n## 9\nIn accordance with one of the recommendations of the Royal Judicature Commission, the Code provides that all Suits shall be commenced by **Writ of Summons**, and the practice of issuing Writs specially endorsed has been retained and extended to many cases in which this Summary Remedy has not hitherto been applied.\n\n## 10\nPart IV relates to special suits, and under the head of **Foreign Attachment**, the Provisions of `Ordinance No. 2 of 1855`, have been entirely remodelled, and many of its defects have been remedied. It also provides a simple Procedure for suits against the Government, suits of **Mandamus**, suits on **Bills of Exchange** and suits `in forma pauperis`.\n\n## 11\n`Section XCIX` provides for the amendment of the Code by a resolution of the Legislative Council whenever it may be deemed expedient, without having recourse to the passing of a new Ordinance for that purpose; and although by `Section IV`, all the Imperial Acts and Local Ordinances relating to Procedure now in force in the Colony are suspended, power is reserved to the Court to apply any of those enactments in the event of any case arising, for which no special provision may have been made; and the Code will, I trust, be found to comprise nearly all the reforms and improvements which have been suggested by recent Legislation and discussion, both in England and in India, on the subject of Legal Procedure.\n\n## V\n\n## 12\nThe Appendix contains two additional Draft Ordinances. The first provides for the abolition of the **Court of Summary Jurisdiction** and confers upon the Supreme Court a Summary Jurisdiction at Law and in Equity. The second provides for the reconstitution of the Supreme Court and the appointment of a **Puisne Judge**. Those two Ordinances, if approved of and adopted, should be passed simultaneously with the Code, in order that the three measures may be brought into force `uno flatu`.\n\nHongkong, June, 1878.\n\n**JULIAN PAUNCEFOTE, Attorney General**.\n\n## 23", "txt_file_path": "txt/2diw2n4r2/CO129-164 - Sir Kennedy - 1873 [7-9].txt", "external_url": "", "rank": 0 }, { "id": 291358, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-164 - Sir Kennedy - 1873 [7-9]", "page_number": 37, "title": "CO129-164 - Sir Kennedy - 1873 [7-9]", "content_text": "# ABBREVIATIONS\n\n1. C.-Indian Code of Civil Procedure, (Act VIII of 1859.)\n\nI. A.-Indian Act, No. of\n\nS. R.--Shanghai Rules, (Rules of H. M. Supreme Court for China and Japan.)\n\nI. E. A.-Indian Evidence Act, No. 1 of 1872.\n\nR. H. T.-Regulæ Generales of Hilary Term, 1853.\n\nR. J. C.-Report of the Royal Judicature Commission.\n\nC. L. P. A.-The Common Law Procedure Act.\n\nG. O. H. K.-General Orders of the Supreme Court of Hongkong.\n\nO. G. G. I--Order of the Governor General of India in Council.\n\nR. H. C. B.-Rules of the High Court of Bengal, Original Jurisdiction.\n\n35\n\n## INTRODUCTION\n\nAn Ordinance enacted by the Governor of Hongkong, with the Advice of the Legislative Council thereof, to simplify and assimilate the Procedure and Practice of the Supreme Court in its Common Law and Equity Jurisdictions and to amend and consolidate the Provisions of the Law relating thereto.\n\nR. J. C. 10.\n\nArrowsmith, 2; Chandler, 27 L.T. (N.S.) 242.\n\n[1873.]\n\nWHEREAS it is expedient to simplify and assimilate the Procedure and Practice of the Supreme Court in its Common Law and Equity jurisdictions and to amend and consolidate the Provisions of the Law relating thereto: Be it enacted by the Governor of Hongkong, with the advice of the Legislative Council thereof, as follows:\n\n## THE HONGKONG CODE OF CIVIL PROCEDURE\n\nI. This Ordinance may be cited for all purposes as \"The Hongkong Code of Civil Procedure.\"\n\nII. The following terms and expressions shall be understood as hereinafter defined or explained, unless there be something in the subject or context repugnant to such definition or explanation; that is to say:\n\n- \"Court\" shall mean the Supreme Court and shall include the Chief Justice or other Judge of the Supreme Court sitting in Court or in Chambers.\n- \"Registrar\" shall mean the Registrar of the Supreme Court.\n- \"Code\" shall mean the Code of Civil Procedure introduced by this Ordinance.\n- \"Cause of Action\" in suits on contracts, or arising thereout, shall mean the breach of contract complained of and not necessarily the whole cause of action.\n\nIII. Nothing in this Ordinance contained shall be deemed:\n\n(1.) To affect the Rights, Privileges, or Remedies of the Crown.\n\n(2.) To affect any Provisions relating to the jurisdiction and powers of the Supreme Court contained in the Order of Her Majesty the Queen in Council of the 9th day of March, 1865, for the Government of Her Majesty's subjects in China and Japan, nor the existing jurisdiction or powers of the Supreme Court;\n\n(3.) To affect the Procedure and Practice of the Vice-Admiralty Court, or of the Courts of Probate and Bankruptcy;\n\n(4.) To affect any suit, action, or other proceeding instituted at the time of the commencement of this Ordinance:\n\nProvided always that in case the parties to any such last mentioned suit, action, or other proceeding shall desire to carry on and continue the same, so far as may be practicable under the Provisions of this Code, the Court may, in its discretion, permit them so to do upon such terms and conditions, as it may think reasonable.", "txt_file_path": "txt/2diw2n4r2/CO129-164 - Sir Kennedy - 1873 [7-9].txt", "external_url": "", "rank": 0 }, { "id": 291387, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-164 - Sir Kennedy - 1873 [7-9]", "page_number": 66, "title": "CO129-164 - Sir Kennedy - 1873 [7-9]", "content_text": "(58)\n\n# FIRST SCHEDULE\n## FORMS\n### REGISTER OF CIVIL SUITS\n[See Indian Code.]\n\n**NB.**-The Collection of Forms printed in Broughton's edition of the Code of Civil Procedure of India and those appended to the Rules of the Supreme Court of China and Japan may be easily varied, so as to apply to this Code.\n\n# SECOND SCHEDULE\n## FEES OF COURT\n\n# THIRD SCHEDULE\n## FEES OF COUNSEL\n### COSTS OF ATTORNEY\n\n# APPENDIX\n\n64", "txt_file_path": "txt/2diw2n4r2/CO129-164 - Sir Kennedy - 1873 [7-9].txt", "external_url": "", "rank": 0 }, { "id": 292090, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-165 - Sir Kennedy - 1873 [10-12]", "page_number": 99, "title": "CO129-165 - Sir Kennedy - 1873 [10-12]", "content_text": "## \n\nShe was in Hyland; I went through the draft Code with him and suggested some amendments which have been adopted. - The draft has since been improved by adopting various sections from the Indian Code, and in its present shape appears likely to work well.\n\nI ventured to express my sense that the Ordinances may and Low Kimberley will probably think it right to express his sense that...\n\n1. I was preparing this book, and in effecting the other changes in cancelling this Supreme Court, while it tends to unify the administration of justice in...\n\nThe Governor of the Leeward Island with an intimation that still has sanctioned it, & a suggestion that the Governor should consider whether it would not be desirable to introduce a similar procedure in the Leeward Island.\n\nI opine herewith a copy as proposed.\n\n8/12/73.\n\nI have supported that a copy of this book was transmitted to the...", "txt_file_path": "txt/2diw2n4r2/CO129-165 - Sir Kennedy - 1873 [10-12].txt", "external_url": "", "rank": 0 }, { "id": 292556, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-165 - Sir Kennedy - 1873 [10-12]", "page_number": 565, "title": "CO129-165 - Sir Kennedy - 1873 [10-12]", "content_text": "# 1473\n\nKing Kong...\n\nJo 289. D.ffa December, 1873.\n\nFor **Arthur Kennedy, K.M.G., C.B.**\n\n\nThe Right Honorable \nThe Earl of Kimberley \n\n**Ordinance No. 18 of 1873 - \"for the Oral Examination of Prisoners\"** \nTransmits Copy of Her Majesty's Confirmation. \nCopy of - for Self \n**Statement of Objects and Reasons**\n\nThis Ordinance, which is a modification of that which was passed as Ordinance No. 3 of 1872, is introduced at the suggestion of the Secretary of State. Its provisions, which are taken as nearly verbatim as circumstances would permit from the Indian Code of Criminal Procedure (Act No. X of 1872), do not differ in principle from those of the original Ordinance. The practice of interrogating accused persons has long been in force in India, and as the present Code of Criminal Procedure re-enacts with certain modifications, the provisions on this subject contained in the original Act of 1867, no doubt experience proves it to have worked well there, and there certainly seem to be no objections to the introduction of the system here, which would not apply with equal force to India, where it has been tried and approved.\n\nThe opinion is daily gaining ground that the existing procedure bears oppressively upon the accused, if innocent, and is too favorable to him, if guilty. Under it a most direct and simple way of arriving at the truth of a case is neglected, while an interrogation of the accused, where properly conducted, and confined to the charges before the Court, would tend to assist materially not only in the detection of crime, but in no less degree in the protection of innocent persons who have been wrongfully charged with any offence.\n\n**T.ROS. C. HAYLLAR, Acting Attorney General** \n(2 enclosures.)\n\n# 561", "txt_file_path": "txt/2diw2n4r2/CO129-165 - Sir Kennedy - 1873 [10-12].txt", "external_url": "", "rank": 0 }, { "id": 305160, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-186 - Public Offices & Others - 1879", "page_number": 419, "title": "CO129-186 - Public Offices & Others - 1879", "content_text": "406 \n\nus no assistance \n\na \nto generally \n\nThe Governor gives \n\nassistance - The Chief Justice, the acting Judge (Francis) adopt the Commissioners' recommendation in globo - Mr. Phillippo, himself a Commissioner, assents Mr. Innes does not altogether \n\nagree. For 1. Part of the Confusion is due to the want of rules, which \n\nThe Judges \n\nI take the recommendation \n\nsoon now show no signs of preparing - \n\ninformation \n\nWe have no fund as to the security to be demanded \n\nfrom the officers of the Court – Mr. Snowden (Jr. 4) appears to have \n\nadvised £2000 for the Registrar \n\n- apparently the other officers have given security _ And I do not see that the Commission took evidence on the point- \n\ndone \n\nUpon this - a desire to form a report on what is done in carrying it out: Specifying the security required from each officer. I should be disposed to direct the Chief Justice to draw up rules, with some comment on the failure to do this time \n\n- both under The Bankruptcy Ordinance and of 1864 and as to the Scale of Court Fees to a Costo or allard under Order 1347/1873. This Ordinance (the Indian Code of Civil Procedure) embodies as substantial maintenance The Rules under which the Supreme Court of China & Japan had successfully carried on its Business from The time of its creation, by the Consular Court; Thereafter the Ordinances prescribe everything that is requisite for the Judges' tokens. The Ordinance (844) supersedes all existing Rules & Acts (including all unrepealed Rules of Practice) except as far \n\nas the Code applies or is defective \n\nArt \n\nSome \n\nas in that case the late Parker \n\nNew Rules are only required for such points. \n\nmay \n\nbe called in aid. So therefore that if we perceive that the Code has not made special provision; \n\n; and as there the S. C. Women Enter & believe that experience has not shown many deficiencies, rather than think that the Chief Justice has neglected to bring defect which have actually been brought to his knowledge. (Nothing will be done while \n\nthe present C. J. Remains). \n\nThese recommendations seem \n\n2-7 \n\nGenerally \n\nmay be approved generally. \n\n8-9. I think the recommendation is to have an accountant to relieve The Registrar of half his work \n\n& two Deputies to relieve him \n\nof most of the \n\nwork, leaving him sufficient time to attend \n\nto the mind \n\nreads like \n\nA \n\nSpecial measure on account of Mr. \n\nFrankel's not being able to do it. But this \n\nRegistrar ought not to be precluded from attending \n\nin The Supreme Court; & although it may be convenient that the Clerks should be called or act as \n\nDeputy Registrars they are not handy to \n\n- When the Registrar is absent from his (official work except by special Permission of the Judge – \n\nThe Clerks can do ordinary office work while the Registrar is in Court ; & if the latter really has other pressing matters in hand the Judge can act for him. \n\nThe staff thus \n\nmay \n\ncan allow \n\nthe Registrar - Two Deputies \n\nand one Accountant _ but the Accountant is \n\napparently to do the work of the Appraiser, or work \n\nmore \n\nof the same character that he may well have \n\nif necessary to retain it in hand \n\nThe nominal officer. The fees going to the Treasury. I am not clear that one of the Deputies might not also be called Sheriff, & do that work.", "txt_file_path": "txt/2diw2n4r2/CO129-186 - Public Offices & Others - 1879.txt", "external_url": "", "rank": 0 }, { "id": 346362, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-250 - Acting Governor Barker - 1891 [6-8]", "page_number": 761, "title": "CO129-250 - Acting Governor Barker - 1891 [6-8]", "content_text": "## Enclosure 2\n\n**Chief Justice to Governor of Hong-Kong**\n\nSir,\n\n**Supreme Court, C. O. 18657 SEP 31 756**\n\nHong-Kong, 10th April 1839.\n\nIn reply to Your Excellency's letter of the 28th of March I have the honour to make the following observations in which Mr. Justice Clarke concurs.\n\nSection 79 of the Civil Procedure Code Ordinance 13 of 1873 states how the law of prisoners for debt is to be enforced and it appears that this law is taken from the Act of 1358 of the Indian Civil Code.\n\nSub-section of Section 79 of Ordinance 13 of 1873 enacts that any person in confinement under a decree may apply to the Court for his discharge. The application should contain a full account of all the property of whatever nature belonging to the applicant, whether in expectancy or in possession, and whether held exclusively in trust by himself or jointly with others or by others for him (except the necessary wearing apparel of himself and his family and the necessary implements of his trade), and one of the places respectively where such property is to be found, and such application shall be subscribed by the applicant and verified on affidavit.\n\nThe following section makes provision for the creditor being furnished with a list of the assets belonging to the debtor, and he is required to take them or show that...", "txt_file_path": "txt/2diw2n4r2/CO129-250 - Acting Governor Barker - 1891 [6-8].txt", "external_url": "", "rank": 0 }, { "id": 355774, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-265 - Public Offices & Others - 1894", "page_number": 51, "title": "CO129-265 - Public Offices & Others - 1894", "content_text": "# \nquite so \n\n(4) \n\n\"That this Committee requests the President to enquire fully into the memorial and to report for the consideration of the Committee the facts he may ascertain,—how far the existing law meets those facts, and what action, if any, he considers desirable for the Committee to take on the memorial.\" \n\nI have accordingly caused enquiries to be set on foot, and as I am about to leave Rangoon for some months, I place the results before the Committee without waiting for further evidence. \n\n2. I wish in the first place to bring to notice that the question of the annoyance caused to the public by prostitutes and their associates is an old one in Rangoon, and was gone into by the Committee to a considerable extent in 1884 and 1885, while the Indian Contagious Diseases Act, XIV of 1868, was in force. The Committee passed several resolutions in those years, in response to petitions and representations, ordering the confinement of prostitutes and brothels to certain fixed parts of the town under the extensive powers in that direction exercisable under the Contagious Diseases Act. I cannot find, however, that these resolutions were ever strictly carried out. The Committee will, however, understand that the repeal of the Contagious Diseases Acts (XIV of 1868, XXVI of 1868, and Madras Act, VI of 1884, so far as it related to contagious diseases) by Act IX of 1888, without the substitution of any enactment to control the proceedings of prostitutes and brothel-keepers, has entirely altered the situation, and that the matter must now be considered under totally different conditions. \n\n3. I have been requested to enquire into three separate questions raised by the memorialists:— \n\n(i) the prevalence of open prostitution and solicitation in Rangoon; \n\n(ii) the alleged \"slavery\" of some of the prostitutes; \n\n(iii) the alleged buying and selling of girls for prostitution. \n\n4. I may say at once that I have confined my enquiries to the first point, because the existing law seems to me to cover every offence likely to be committed with respect to enslaving women for prostitution and buying and selling girls for that purpose. Sections 341 to 348 of the Indian Penal Code deal with offences relating to wrongful restraint and wrongful confinement. Sections 363 to 374 of the Indian Penal Code likewise deal with kidnapping, abduction, slavery, and forced labour. Moreover, the very offence chiefly complained of under the two last points of this enquiry is expressly dealt with in sections 372 and 373. Again, all the offences above mentioned, except two, are, under the Code of Criminal Procedure, cognizable by the police, and offenders against the two exceptions can be arrested on a Magistrate's warrant. \n\nNow, anyone familiar with the Indian Penal Code will understand me when I say that when it deals with any particular class of offences, every conceivable point in relation to those offences is taken into consideration. With regard, therefore, to the prevention of the enslaving of prostitutes and traffic in girls for prostitution, it is merely a question of producing sufficient evidence to the police to enable them to act. \n\nAll that any one of the memorialists, who has such evidence at his command, need do is to lay that evidence, confidentially or otherwise, before the District Superintendent of Police, who will no doubt take such action as is proper thereon. I do not think it is in the power of the Committee to make any suggestions that would improve the existing law on these subjects, or that any change in the law is necessary. \n\n5. In reference to the first subject for enquiry, the first point I would wish to take into consideration is the extent of the evils complained of, which I would point out are two, namely, the spread of brothels and solicitation. \n\n6. Defining a brothel as a place in which a public prostitute is or remains for the purpose of prostitution, I caused, in December 1893, extensive enquiries to be made as to the exact localities of such places at that time. The result of the enquiries is to be found in the Appendix attached to this memorandum, and the localities are shown in the plan made out accordingly and attached hereto. The Committee will perceive that the plan and the list of brothels in the Appendix disclose the existence of a most serious public nuisance. Quite serious enough for the Committee to desire legislative interference, unless the present law is sufficient to meet the case. Especially is this the case when the situation of the town schools, which are also shown on the plan, are taken into consideration. \n\n7. With reference to the list in the Appendix, I would draw attention to two matters. Prostitutes form, for many reasons, a class of persons who constantly shift their residences and what, for want of a better term, may be called their places of business. A list, therefore, that is correct for December 1893 is not necessarily quite correct for February 1894, though the number of prostitutes is not likely to vary much from month to month. Secondly, it will be seen that the names of the owners of the properties in the list, as recorded in the Municipal assessment rolls, are also given. It is possible that the use to which some of the properties are put is due to the action of lessees and not of the owners themselves. The inclusion of the owner's names in the list may, however, do good by enabling members of the Committee to draw their attention to actual facts and thereby to induce some of them to take such action as may prevent the use of buildings in respectable quarters as brothels. \n\n(5) \n\n8. Now as to the existing law on the subject of suppressing brothels or confining them to certain areas, a recent case in the District Magistrate's Court will throw some useful light. On the 12th October 1893, the District Superintendent of Police laid before the District Magistrate a petition in which the neighbours complained of the nuisance and offence caused by the two large and prominent brothels in the main thoroughfares of Godwins Road and Canal Street. The District Magistrate thereupon issued a notice warning the inmates of the brothels that they were liable to prosecution if they continued to engage in prostitution. A number of the persons concerned complied with the notice, but 13 of them refused to do so and were charged with committing a public nuisance under section 290 of the Indian Penal Code. The District Magistrate found that it was proved that \"all the prostitutes in the Canal Street* are in the habit of sitting at their doorways at night with bright lights in their rooms; that in full view of the street they dress and make themselves up; that they expose their breasts and thighs to passers-by and beckon and call them, and sing obscene songs. Further, that their houses are resorted to by disorderly characters and that there are constant rows between the brothel-keepers and the visitors of the women.\" The Magistrate then goes on to say in his judgment that \"Godwins Road and Canal Street are two of the principal thoroughfares of Rangoon and the behaviour of the women has long been an open scandal.\" In the end, he inflicted a small fine upon each of the accused with a warning that a continuance of the nuisance would result in enhanced punishment. The case was appealed to the Recorder of Rangoon, who set aside the conviction on the ground that it was necessary to prove that each woman convicted had individually committed the nuisance complained of, whereas the evidence in the case had been directed against the conduct of the inmates of the brothel generally. \n\n9. The law then comes to this. In order to prevent the women of a line of prostitutes' houses, like that in Canal Street, from misconducting themselves in the outrageous manner above described, it will be necessary to procure the evidence of respectable witnesses against each woman separately on each occasion that she misbehaves. No doubt if such evidence were procured often enough the nuisance might die out in any particular neighbourhood, but what the Committee has to look at, as a practical administrative body, is: What are the chances of respectable neighbours taking a course so exceedingly disagreeable to themselves and of consenting to constantly appear in evidence against such a class of defendants? The Committee may take it for granted that they will decline to do anything of the kind, and that so far as the existing law is concerned, it is for practical purposes inoperative. \n\n10. The above relates to brothels which are openly conducted so as to be a public offence, and in any case, it would not be possible to cause the suppression or removal of a brothel, the inmates of which confined indecencies to the interior of the house. But the Committee will understand that it may well be an intolerable nuisance to householders in a respectable neighbourhood to have established among them a house of ill-fame. \n\n11. It has not been suggested to me in the course of my enquiries that there is any other enactment than section 290 of the Indian Penal Code under which the brothels can be reached, and it seems to me that nothing effectual can be done to meet the case except the making of an enactment for the purpose. In this matter, there is, I find, a recent precedent in India in the Punjab Municipal Act, XX of 1891, section 204 of which runs as follows:— \n\n### Brothels \n\n204. (1) On the complaint of three or more inhabitants of a municipality that a house in their immediate neighbourhood and within the limits of the municipality is used as a common brothel or lodging-house for prostitutes or disorderly persons of any description to the annoyance of the respectable inhabitants of the vicinity, any Magistrate of the first class having, as such, jurisdiction in the place where the house is situated may summon the owner or tenant of the house to answer the complaint; and, on being satisfied that the house is so used, and is therefore a source of annoyance and offence to the neighbours, may order the owner or tenant to discontinue such use of it; and if he shall fail to comply with such order within five days, may impose upon him a fine to the extent of twenty-five rupees for every day thereafter that the house shall be so used. \n\n(2) This section shall take effect in a municipality only after it has been specially extended thereto by the local Government at the request of the Committee. \n\nSomething of the trouble that is now upon us in Rangoon must have been felt in the Punjab towns and led to the above section, which was inserted in the Punjab Municipal Act on its amendment and reconstruction in 1891. The section seems to me to meet the wants of Rangoon exactly, for the effect will be to cause brothels to remove from respectable neighbourhoods and settle down by a course of natural selection in neighbourhoods which will tolerate them. The section, moreover, is not likely to remain a dead letter, as to give evidence on such a point as is contained in it is quite a different matter to giving evidence of the nature that the Courts tell us the existing law demands. \n\n*That is, in the brothel next door to the Municipal Girls' School. \n\n## Page 48 \n## Page 1", "txt_file_path": "txt/2diw2n4r2/CO129-265 - Public Offices & Others - 1894.txt", "external_url": "", "rank": 0 }, { "id": 380196, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-304 - Governor Sir Blake - 1901 [1-4]", "page_number": 438, "title": "CO129-304 - Governor Sir Blake - 1901 [1-4]", "content_text": "## your despatch \n\ndespatch No. 101 of the 20th March last.\n\n2.\n\nI have to request that you will inform why it has been thought deniable to omit from this Ordinance the provisions of sec. 25 sub-section of the Judicature Act, 1873.\n\nsince that sub-section is not incorporated in the Trustee Ordinance, 1901.\n\n## The 102 \n1901 \n- previous Paper. \n`07-1` \n`(020-7000-17-2990)` \nsequent Paper. \n`30810`. \nNo. 14229. \n`(Subject.)` \n**Ordinance 5 of 1901** \n**Code of Civil Procedure** \n432 \n**DESPATCH** \n14290 \n20 MPR OF \n**Notes (Minutes.)** \nM. Risby \n1871- \nA.F. 24/4 \nMr Cox \nMr Hughes.\n\nThe AG's report is rather meagre for an order of 711 but it is clear that a vast amount of labour has been expended over its preparation. This Report may be supplemented by his Preface to the Draft Code in 1599-sections, cases and consideration.\n\nIt is drawn from two main sources, the Judicature Code draft and the Rules of the Supreme Court 1883, other sources less drawn upon being the Indian Civil Code and Hong Kong orders of an earlier date than 1873. Chapter XXX incorporates the Imperial Arbitration Act, 1889. The source of some provision is indicated in the margin. I have spent a considerable amount of time going through this code and comparing it with the earlier and the R.S.C. 1883.\n\nEven branding or brands of procedure has, I think, been provided for in this code; but it appears to me unnecessary.", "txt_file_path": "txt/2diw2n4r2/CO129-304 - Governor Sir Blake - 1901 [1-4].txt", "external_url": "", "rank": 0 }, { "id": 380199, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-304 - Governor Sir Blake - 1901 [1-4]", "page_number": 441, "title": "CO129-304 - Governor Sir Blake - 1901 [1-4]", "content_text": "## Enclosure 2. C.\n\nc.o. 435 \n14229 RECO \nATTORNEY GENERAL'S OFFICE 20 APR \n14th March 1901.\n\n**Report on Ordinance of 1907.**\n\nI have examined the accompanying Ordinance, entitled \n**An Ordinance to establish a Code of Procedure for the Regulation of the Process, Practice, and Mode of Pleading, in the Civil Jurisdiction of the Supreme Court of the Colony** \nand I am of opinion that the Ordinance is one which is not contrary to the Governor's Instructions.\n\nThis Code is intended to take the place of that of 1873. The latter was founded mainly upon the rules of the Supreme Court for China and Japan dated 1865. It also embodied parts of the Indian Code of Civil Procedure then in force, as well as a few sections of the Indian Evidence Acts and of the English Common Law Procedure Acts.\n\nSince its enactment, however, the Indian Code of 1882 has been passed, as well as the 1883 rules of the English Supreme Court, and, in framing the new Code, full advantage has been taken of these more modern rules to amplify its provisions, although the", "txt_file_path": "txt/2diw2n4r2/CO129-304 - Governor Sir Blake - 1901 [1-4].txt", "external_url": "", "rank": 0 }, { "id": 388745, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-317 - Governor Sir Blake - 1903 [4-6]", "page_number": 252, "title": "CO129-317 - Governor Sir Blake - 1903 [4-6]", "content_text": "# COPY.\n\nYour Excellency,\n\nC.O. 22916\n\n622 JUN 001\n\n247\n\nI think the proposal to recruit Police Officers for this Colony, the Straits Settlements and the Federated Malay States by competitive Examination an excellent one.\n\nSuch Police Cadetships might be offered at the examination for Cadetships proper, candidates to signify before the examination whether they are candidates for the Police Cadetships as well as Cadetships or for Police Cadetships only. Or an entirely separate examination might be held for them. In any case, I am strongly of opinion that only nominees of the Secretary of State for the Colonies should be allowed to compete for Police Cadetships. It must be remembered that the Police Services of the Colonies and State comprise only 22 Officers. Unless great care is taken in selection, a certain number of undesirable candidates are sure to gain admittance and in such a small Service, the bad effect would be very pronounced. Police Officers are constantly before the eye of the Public and of their men, and it is essential that Officers should be men of good breeding, good address, and very steady.\n\nAs regards amalgamating the three Forces, I think that no very close amalgamation would be conducive to efficiency owing to the fact that the languages to be acquired in the three Countries concerned are not the same, neither are the laws.\n\nIf a system of Police Cadetships for the Far East is adopted, it should be an essential feature of it that a cadet shall learn at least 1 dialect of the Chinese language besides one other language, viz.- either Hindustani or Malay. A Police Cadet for Hongkong should learn Hindustani and the Cantonese dialect of the Chinese language, while the law is the law of England plus the local Ordinances.\n\nIn the Straits and the Federated Malay States, the law is, I believe, the Indian Penal Code plus the local Code of Criminal Procedure and the local Ordinances; while one essential language for all Police Officers is Malay, and there are two dialects of the Chinese language which are equally useful - the Cantonese and the Amoy - while a third (the Swatow) is much spoken. Hindustani is also, I assume, of importance.\n\nA Hongkong Police Cadet, as remarked above, ought to learn Cantonese and Hindustani. Possibly the same languages plus Malay would be the most useful to the Federated Malay States Police Cadet. But I imagine that some...", "txt_file_path": "txt/2diw2n4r2/CO129-317 - Governor Sir Blake - 1903 [4-6].txt", "external_url": "", "rank": 0 }, { "id": 441121, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-396 - Public Offices - 1912", "page_number": 457, "title": "CO129-396 - Public Offices - 1912", "content_text": "## 18. against malaria (for which its relatively high anarcotine content makes it specially valuable), to lessen the quantity of sugar in diabetes, and generally to allay pain in sufferers of all ages. The vast bulk of the Indian population, it must be remembered, are strangers to the ministrations of qualified doctors or druggists. They are dependent almost entirely on the herbal simples of the country; distance and the patient acceptance of hardships standing in the way of prompt access to skilled medical relief. In these circumstances, the use of opium in small quantities is one of the most important aids in the treatment of children's sufferings. It is also a frequent help to the aged and infirm, and an alleviation in diseases and accidents which are accepted as incurable. To prevent the sale of opium except under regular medical prescription would be a mockery; to many millions it would be sheer inhumanity. The licensing or registering of regular opium eaters is equally out of the question, and would be regarded throughout India as an indefensible and intolerable intrusion on individual liberty.\n\n18. The minor reforms recently carried out in the details of opium administration in the several provinces have been so numerous that it would be tedious to make more than a brief allusion to them. The Government of Burma has, as lately as 1910, completely recast its Opium Rules in the direction of greater stringency as regards the possession and sale of opium. Under the Burma Opium Law Amendment Act (Burma Act VII of 1909) persons who are believed to earn a livelihood in whole or in part by unlawfully trafficking in opium or by abetting such traffic can be dealt with in a similar manner to that provided for under section 110 of the Criminal Procedure Code. That section empowers Magistrates to require security from habitual thieves, burglars, and other criminals, and in default of security to send them to prison. Under the same Burma Act the powers of excise and other officers to arrest and search for opium have been enhanced. By an amended Excise Bill at present under consideration an attempt is being made to strengthen the law in respect of other intoxicating drugs, which show a tendency to take the place of opium with every increase in the stringency of the opium law. Besides a provision for taking security from persons who deal unlawfully in cocaine, it is made a penal offence to keep a place for administering any intoxicating drug, and guilt is presumed in certain cases.\n\n## 19. Another weapon in constant use against the growth of unnecessary indulgence in the drug is the steady rise in the price of opium issued from Government treasuries, and consequently its ultimate price to the consumer. The Central Provinces propose to raise their issue price from Rs. 233 to Rs. 27 per seer, and this proposal is being accepted. In Coorg, Eastern Bengal and Assam, Madras, the Punjab, the North-West Frontier Province and the United Provinces, the issue prices have been recently raised. Bengal is prepared to raise its issue prices and will be instructed to do so. In Northern India caution is required in dealing with opium-growing districts and the districts bordering on them, as every increase in price stimulates the illicit retention or sale by cultivators of opium grown by them. This difficulty will however become less as the area under poppy is being reduced year by year. In Burma the retail price to consumers is fixed at a uniformly high figure, Re. 1-0-0 per tola (180 grains) for crude excise opium, and Re. 1-4-0 per tola for prepared excise opium, except at a few shops where it would be easy to obtain smuggled opium at a lower rate. For foreign opium in the four districts in which this opium is sold, the rates at present are 10 annas per tola for crude opium and 15 annas per tola for prepared opium.\n\nA further check on the consumption of opium is provided by the reduction of the legal limit of private possession of opium. This is at present 3 tolas in all provinces except Bengal, Eastern Bengal and Assam, and Ajmer-Merwara (in these three provinces it is 5 tolas) and a small tract of Sind in the province of Bombay (the desert talukas of Thar and Parkar), where it is 10 tolas. \n\n| Province | Existing Limit (tolas) | Proposed Limit (tolas) |\n| --- | --- | --- |\n| Bengal | 5 | 3 (in certain areas) |\n| Eastern Bengal and Assam | 5 | ... |\n| Bombay (general) | 3 | 1 |\n| Bombay (Thar and Parkar) | 10 | 4 |\n| Madras | 3 | 1 |\n| Central Provinces | 3 | 2 |\n\nIn Bengal, the limit will be reduced to 3 tolas in certain areas proposed by the provincial Government, and the Government of Eastern Bengal and Assam will be invited to consider the desirability of a similar reduction. The Bombay Government propose to reduce the ordinary limit to 1 tola, and the limit in the exceptional desert tracts of Thar and Parkar from 10 to 4 tolas, and this proposal is being sanctioned. Madras has already reduced the limit from 3 tolas to 1 tola. The Central Provinces agree to the reduction of the limit from 3 tolas to 2 tolas, and will be asked to carry it into force. In this province as many as 326 opium shops have been closed during the past 5 years. The combined excise and opium preventive service has also been largely strengthened in most of the provinces.\n\n## 20. It will be seen that very substantial progress has been made in India in the restrictive regulations about opium. This review of our recent action may fitly close with the latest statistics about (a) the area under poppy in India, (b) the exports of opium from India, and (c) the issues of opium for consumption in British India.\n\n### (a) Cultivation of Poppy\n\n#### (i) Under the Bengal Monopoly System\n\n| Year | No. of Cultivators | Area Cultivated (acres) | Quantity of Opium Produced (lbs.) |\n| --- | --- | --- | --- |\n| 1907-08 | 1,308,791 | 488,548 | 5,870,263 |\n| 1908-09 | 1,117,898 | 361,834 | 5,085,504 |\n| 1909-10 | 969,529 | 348,740 | 5,567,945 |\n\n#### (ii) Estimated Area and Outturn in Feudatory States\n\n| Year | Estimated Area (acres) | Outturn (maunds) |\n| --- | --- | --- |\n| 1904-05 | 213,731 | 19,570 |\n| 1905-06 | 146,677 | 25,534 |\n| 1906-07 | 216,911 | 45,868 |\n| 1907-08 | 191,714 | 32,469 |\n| 1908-09 | 134,629 | 26,061 |\n| 1909-10 | 108,973 | 20,148 |\n\n### (b) Exports of Opium from India (chests)\n\n| Year | Bengal Opium | Malwa Opium | Total Exports |\n| --- | --- | --- | --- |\n| 1908 | 44,970 | 20,712 | 65,682 |\n| 1909 | 43,465 | 13,202 | 56,667 |\n| 1910 | 37,256 | 6,721 | 43,977 |\n\n### (c) Issues of Opium for Consumption in British India (sers)\n\n| Province | 1908-09 | 1909-10 |\n| --- | --- | --- |\n| Madras | 46,404 | 44,006 |\n| Bombay | 58,018 | 55,551 |\n| Bengal | 95,316 | 85,417 |\n| Eastern Bengal and Assam | 78,557 | 74,191 |\n| United Provinces | 93,811 | 67,037 |\n| Punjab and N.W.F. Province | 64,753 | 62,582 |\n| Central Provinces and Berar | 45,406 | 46,600 |\n| Ajmer-Merwara | 2,653 | 2,552 |\n| Coorg | 64 | 67 |\n| Baluchistan | 593 | 762 |\n| Burma | 62,926 | 61,413 |\n| **Total British India** | **511,499** | **500,158** |\n\n## 21. Passing for a moment over the fourth Resolution of the Shanghai Conference, which contemplates international action, we may consider the fifth Resolution, which deals with the internal regulation by each State of morphia and other harmful derivatives of opium. The Resolution states in the first place that \"the unrestricted manufacture, sale, and distribution of morphine already constitute a grave danger...", "txt_file_path": "txt/2diw2n4r2/CO129-396 - Public Offices - 1912.txt", "external_url": "", "rank": 0 }, { "id": 444306, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-403 - Governor Sir May Acting Governor Claud Severn - 1913 [8-10]", "page_number": 303, "title": "CO129-403 - Governor Sir May Acting Governor Claud Severn - 1913 [8-10]", "content_text": "#180\n\nthem for murder and piracy was not a legal warrant and one beyond his jurisdiction, and that therefore the first order of the Lord Chief Justice for the release of Kwok A Sing was right and ought to be affirmed.\" In Stallmann's case, which was an Extradition case, it was also held that the warrant upon the inquiry before the Magistrate with respect to the first committal was itself invalid and the Court ordered the applicant to be set at liberty. In both Kwok A Sing's case and Stallmann's case it was decided that the second committal could be made. The warrant of committal by Mr. Irving was a valid order and was within his jurisdiction. The offence in the present case is exactly the same offence as in the case before Mr. Irving.\n\nI was referred by Mr. Hodgson, Crown Solicitor, to two decisions with respect to a writ of Habeas Corpus in Extradition proceedings. The first of the two cases referred to by Mr. Hodgson was in re Harsha, American and English Annotated cases, Vol. VI., 496. This is a Canadian case and was decided in 1906. The head note in this case is as follows:- \"Where a person has been arrested in Extradition proceedings and released on habeas corpus on the ground that there is no proper evidence showing the commission of the alleged offence or identifying the alleged forged document he may be re-arrested in subsequent extradition proceedings for the same offence upon the discovery of further and new evidence to supply the deficiencies.\"\n\n\"The doctrine of res judicata, former jeopardy, and autrefois acquit are not applicable to extradition proceedings.\"\n\n\"The English Habeas Corpus Act (31 Charles II., C2, paragraph 6) does not apply to extradition proceedings.\"\n\nOur law is different. The Habeas Corpus Act does apply to extradition proceedings. The second habeas corpus in Stallmann's case was under Section 6 of the Habeas Corpus Act. The prisoner was discharged with respect to the first proceedings by the High Court of Calcutta pursuant to a section in the Indian Code of Civil Procedure 1888, which is similar to habeas corpus proceedings. In Kwok A Sing's case the second habeas corpus was under the Act. It does not state in the report whether the first habeas corpus was under the Act or at Common Law. It merely used the words \"habeas corpus.\" I might mention that the first committal was in respect of extradition proceedings. In the second committal Kwok A Sing was to take his trial at the Supreme Court of Hongkong on a charge of piracy jure gentium. In re parte Woodhall (20 Q.B.D. 827) it was decided by the Court of Appeal that extradition was a criminal matter. This was in 1888, and it was the first time that any of our Courts of Law had decided that extradition was a criminal matter. The next case referred to by Mr. Hodgson was in re Kelly 26 Federal reporter, p852. This is an American case and was decided in 1886. The head note is as follows:\n\n\"Where a party accused of crime has been arrested and had an examination before commissioner duly appointed and became discharged by order of the Executive on the ground that the evidence was not sufficient to justify his extradition for the crime charged, he MAY be again arrested for the same offence and compelled to submit to a second examination without the issuance of a second mandate by the Executive.\n\nIf the commissioner should commit the prisoner upon the second examination and it should be apparent that he had no clearer or more convincing testimony as to the truth of the charge than was presented at the former examination, the circuit court has power to review his testimony and correct his error.\"\n\nWith respect to the above case, I need only say that it has no connection with the present case, which relates solely to Section 6 of the Habeas Corpus Act.\n\nAs I have just stated, my decision in Point 4 is given in favour of the defendant, having regard solely to the construction to be placed on Section 6 of the Habeas Corpus Act. It is the same offence in the two cases. The order in the first case was a valid order and within the jurisdiction of the committing Magistrate. Under these circumstances, the section states that such person shall not be again imprisoned or committed. My decision with respect to Point 4 is therefore in favour of the defendant. I order the defendant to be discharged.\n\nAt the conclusion of the reading of the decision the Crown Solicitor asked:\n\n\"Do I understand that in a nutshell your judgment is in favour of the Crown, but that the matter is *res judicata*, and you order the defendant's discharge, on that point?\"\n\nMr. Hazeland-Yes.\n\n(To Mr. Brutton)-\"You were going to raise a point about a political crime.\"\n\nMr. Brutton-\"Not now, your Worship.\"\n\nMr. Hazeland (to the Crown Solicitor)-\"Are you going to file an application for a case stated?\"\n\nMr. Hodgson-\"I do not know yet. I must consider that.\"\n\nMr. Brutton-\"Then in that case I hope your Worship will hear me on the point that there can be no appeal.\"", "txt_file_path": "txt/2diw2n4r2/CO129-403 - Governor Sir May Acting Governor Claud Severn - 1913 [8-10].txt", "external_url": "", "rank": 0 }, { "id": 445102, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-405 - Public Offices - 1913", "page_number": 176, "title": "CO129-405 - Public Offices - 1913", "content_text": "## 175 \n\n2 \n\nAgreement or not, each side will adhere to their own view, and there will be absolutely no ground for effecting a compromise; if the compensation is supposed to be for a breach of agreement, this ministry is ignorant of the grounds on which the claim is based.\n\nBut Sir John Jordan's memorandum specifically states that he \"demand[s] for the payment of compensation for the value of the opium destroyed\"; and repeats his demand as he thus mentions \"the value of the opium,\" the opium having already passed into Chinese hands, it is for the Chinese Government to consider and deal with the matter.\n\nNow, as to the former Wai-wu Pu circular to the provinces, explaining the meaning of the opium agreement, Sir John Jordan has constantly referred to this telegram, inspired no doubt by a fear that the sale of Indian opium in Anhui Province will meet with obstruction in the future; but it is a fact that up to the present that province has imposed no restrictions whatsoever on Indian opium regularly imported. According to a statement furnished by the customs superintendent at Wuhu, of the monthly revenues collected at that customs station, it appears that since July large amounts of Indian opium have been imported, but absolutely no native opium. The statement in question, which consists of four sheets all signed by the commissioner of customs, is surely conclusive sufficient proof that Anhui Province has suppressed native opium and has not prohibited the import of foreign opium. His Majesty's Minister has but to take this into consideration to realise that the present case in no sense arose out of suppression of Indian opium, while the inaccuracy of the statement in his memorandum that the Wai-chiao Pu have supported the Anhui tutu in a flagrant breach of treaty will be self-evident.\n\nThe former Minister for Foreign Affairs, Mr. Liang, proposed that this case should be referred to arbitration, but His Majesty's Minister unfortunately refused his consent; so that what appears to this ministry the most equitable method of coming to a settlement is thrust aside untried. But though this proposal has been dismissed, the Wu-chiao Pu is still willing to negotiate amicably for a final settlement of the present dispute.\n\nNevertheless, the detention of Indian opium, unaccompanied by its covering passes, is without any doubt merely the enforcement of their right by the Anhui authorities to regulate the trade: it is purely a measure of internal administration, and as such is expressly allowed by the opium agreement.\n\n8 \n\nInadmissible argument which has never before in my experience been used in interpreting the additional article of 1885, and its use on this occasion, coupled with the wanton violation of the agreement itself, would amply justify His Majesty's Government in terminating arrangements which the Chinese Government and its officers now treat with scarcely veiled contempt.\n\nSir John Jordan formally repeats his demand for the full restitution of the value of the opium destroyed. The British losses resulting from the stoppage of the trade consequent upon the action of the Anhui authorities will form the subject of a later and probably much larger claim.\n\nThe statement that the province of Anhui has imposed no restrictions whatsoever on Indian opium regularly imported is the reverse of the truth. It has been proved up to the hilt, by the production of documentary evidence in the shape of customs papers and other documents, that the seven chests which were burnt at Anching on the 16th September were regularly imported and the Wai-chiao Pu have not produced a scintilla of evidence to prove the contrary. Is this no restriction upon the trade?\n\nAs to Wuhu, the facts are briefly these. On the 24th November the head of the Opium Prohibition Bureau, Chang Tung-nan, called the opium dealers together and stated that he could not order them to shut up their places of business, but that he could and would station men at the entrances of their premises and arrest and punish everyone who came out with purchases of opium. The dealers naturally declared that they could not carry on business under such conditions, and eventually signed a bond, drawn up for reasons on which it is unnecessary to enlarge, that they would cease business on the 9th December.\n\nAlthough the Wai-chiao Pu may not interpret this as imposing restrictions upon Indian opium, Sir John Jordan is obliged to regard it in that light, and the fact that the import has totally ceased justifies his contention.\n\nIn conclusion, Sir John Jordan feels bound to reiterate his conviction that the responsibility for the uniform disregard of the opium agreements now rests with the Central Government, who have, by the publication of the penal code and by other measures of encouragement, done much to reduce the treaty to a dead letter.\n\n## Enclosure 2 in No. 1\n\n### Memorandum communicated to Wai-chiao Pu by Sir J. Jordan\n\nPeking, December 19, 1912.\n\n**SIR JOHN JORDAN** begs to acknowledge the receipt of the memorandum which the Wai-chiao Pu addressed to him on the 13th instant.\n\nThis document is full of misstatements, which have been so often refuted that it is a matter of surprise to see them again repeated.\n\nThe Tutu of Anhui wantonly ordered the destruction of seven chests of opium which, as the customs documents handed to the Wai-chiao Pu proved beyond a shadow of a doubt, had been imported in strict accordance with the procedure prescribed by treaty. For that outrage the tutu and the Chinese Government, who have attempted to palliate his action, are equally responsible, not to the Chinese subjects, in whose possession the opium happened to be at the time of the occurrence, but to His Majesty's Government, with whom they entered into solemn treaty engagements permitting Chinese to convey Indian opium into the interior of China under certain specified conditions. These conditions were violated in the most flagrant manner by the Tutu of Anhui, and the Wai-chiao Pu insinuate that the question of redress is one between the Chinese Government and its own subjects. They forget, or choose to ignore, the fact that His Majesty's Government is the other party to the agreement, and is justified in exacting proper reparation for its violation. Were it otherwise there would have been no point in concluding the additional article of 1885, or the subsequent agreement of last year, for China had merely to shield herself behind the excuse that although she had solemnly undertaken to allow Chinese to convey opium into the interior, she recognised no obligation towards His Majesty's Government to do so. That is a totally...", "txt_file_path": "txt/2diw2n4r2/CO129-405 - Public Offices - 1913.txt", "external_url": "", "rank": 0 }, { "id": 469305, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-445 - Public Offices - 1917", "page_number": 179, "title": "CO129-445 - Public Offices - 1917", "content_text": "that in order to carry out the unholy pact between the opium combine and the Chinese authorities, the whole machinery of the Mixed Court, supplemented by an army of private spies and informers is being devoted to the prevention of smuggling of native opium—the object being not to defend the people from a harmful drug, nor to safeguard the revenue of the country, but to protect the interests of the dealers in Indian opium from the competition of the cheaper Chinese variety. There is some evidence that in spite of the apathy in regard to opium reform displayed by the Chinese Government during the last two years, public opinion in British commercial circles in Shanghai is growing restive on the subject, and that there is an anxiety to get rid of the traffic in Indian opium for good and all.\n\nIt is easier, however, to appreciate the evils of the situation than to indicate the appropriate remedy. Sir E. Fraser suggests that it should be made a criminal offence for any British subject to have any interest in opium after the 31st March next. That penal legislation of this kind may be necessary sooner or later is not improbable, but I hardly see how it is possible to introduce it at so early a date, apart from matters of peace, order, and good government, it is undesirable to create new criminal offences for British subjects in China, except for the sake of enforcing international obligations or of giving effect to Chinese legislation. As things stand at present, under our agreements with China on the subject of opium, the trade in Indian opium in the provinces not yet closed, is undoubtedly legitimate, and unless a new agreement is concluded, it will remain legitimate until the last of the provinces is closed to Indian opium, a consummation which cannot be effected at any rate until some time after the end of March. As for the provisions of The Hague Conference, these seem to contemplate legislation strictly in consonance with the measures adopted by China herself, and I do not think they would justify penal legislation in advance of such measures. The Penal Code of China, which has been suggested as a basis for King's Regulations prohibiting trade in opium, seems to me to afford a still more precarious foundation for such legislation.\n\nApart from all questions of legal procedure, the enactment of penal legislation independently of treaty obligations is open to the criticism that it would be inconsistent with the policy governing our procedure in regard to the opium question in the last ten years, namely that of encouraging the Chinese Government in the suppression of opium by restricting the trade in Indian opium pari passu with the restrictions imposed on the cultivation and consumption of the native drug. His Majesty's Government can claim with confidence that their position from this point of view has hitherto been unassailable. I have lost no opportunity of impressing on the metropolitan and provincial authorities that the combine agreements signed at Shanghai on the 1st May, 1915, and at Hong Kong on the 1st October in the same year were concluded without my cognisance or support, and the Chinese Government are well aware that if the term of these agreements is extended, the responsibility for such action will rest entirely on their own shoulders. It is the Chinese, not the British, Government that has broken step, and in my opinion it is preferable to endeavour to restore uniform movement, rather than to initiate an independent and more rapid pace on our side alone.\n\nIndications are not wanting that a continuity of policy may not prove so difficult as it appears at the present moment. The reference in the Shanghai despatch to the \"Yunnan opium case\" is to a scandal that has caused considerable excitement in Chinese circles. A party of official delegates from the Yunnan provincial government to a political conference at Peking, including the Minister of Justice in the new Cabinet, arrived in Shanghai on the 5th ultimo with a large quantity of baggage, which was passed without examination by the Customs in accordance with official applications for special privileges made in Yünnan by the Minister of Justice himself, and in Shanghai by the highest Chinese authority, the Taoyin. It was then discovered that sixty trunks of the party's baggage contained Yünnan opium. Twenty-four of these trunks were found and confiscated, the value of their contents being variously estimated at 375,000 dollars to 1,000,000 dollars. Thirty-six trunks are still missing. Six of the delegates were arrested and tried at the Mixed Court, of whom three were sentenced to various terms of imprisonment, one was fined, and two were acquitted. The Minister of Justice was declared by the prosecution to be innocent, and his appointment to the Ministry has since been confirmed by Parliament; but a large body of public opinion considers that his innocence has not been satisfactorily established. The Taoyin of Shanghai, was of course not charged, but his complicity was fully demonstrated in court, and he has since resigned office on the plea of ill-health. The whole incident has revived interest in the anti-opium movement and in the question of the sincerity of the new Government in connection therewith, and the effect can hardly fail to be to strengthen the hands of the reformers.\n\nAt an interview with the Acting Minister of Foreign Affairs this afternoon, I recapitulated the course of events in connection with opium suppression, and asked what was the present attitude of the Chinese Government. Dr. Chen said that the matter had been recently discussed by the Cabinet, and that it had been decided to adopt a policy of vigorous suppression. In particular the request made by the opium combine for an extension of the time limit of the agreement had been decisively and finally rejected, in spite of the sacrifice of revenue thus involved. As regards the closing of the provinces, he promised to examine the questions and communicate with me on the subject later.\n\nI confidently anticipate that application will be made in due course for the joint inspection of Kiangsu and Kiangsi next spring, and for the closing without examination of the few remaining unclosed provinces, into which Indian opium does not as a rule find its way.\n\nIf this application is complied with, and if as a result of inspection the two provinces named are placed upon the list, the Shanghai trade will come to an end, and the only important province still open to Indian opium will be Kwangtung. Conditions are too unsettled in that province at present to enable any forecast to be made as to the date at which it will eventually be closed, or as to the procedure which can be adopted for this purpose.\n\n(Copy to India.)\n\nI have, &c.\n\nJ. N. JORDAN.\n\n176", "txt_file_path": "txt/2diw2n4r2/CO129-445 - Public Offices - 1917.txt", "external_url": "", "rank": 0 }, { "id": 504844, "series_id": 27, "series_slug": "histsyn-co129-engine", "series_title": "CO129 Colonial Office Hong Kong Records 理藩院香港檔案", "series_use_hku_proxy": false, "document_key": "CO129-496 - Public Offices - 1926", "page_number": 109, "title": "CO129-496 - Public Offices - 1926", "content_text": "10228\n\n1000 2.30\n\nIt is requested that in any further communication on this subject the under-mentioned letter and number may be quoted, and the reply addressed to-\n\nThe Under Secretary of State for India,\n\nPolitical Department,\n\nIndia Office,\n\nLondon, S.W.1.\n\nINDIA OFFICE,\n\nWHITEHALL,\n\n108\n\nLONDON, S.W. 1.\n\nP.\n\n118.\n\n26th April, 1926.\n\nSir,\n\nI am directed by the Secretary of State for India to refer to your letter of the 26th March, No.71265/1265/10, with which was enclosed a copy of a despatch from His Majesty's Minister at Peking, dated the 4th February, regarding an enquiry made by Sir Skinner Turner in respect of the powers existing in India for dealing with seditious Chinese there.\n\n2.\n\nThe Secretary of State is not altogether clear as to the intention of the enquiry. As regards seditious activities directed against the British Government he is advised that in British India a Chinaman, like anyone else, may be prosecuted for sedition as defined in the Indian Penal Code (see section 124A, copy enclosed) or for promoting enmity between different classes of His Majesty's subjects (section 153A of the Code, copy enclosed). He may also be required, under Chapter VIII of the Code of Criminal Procedure, to give security for good behaviour if he is deemed likely to disturb the public tranquility or disseminates any matter the publication of which is punishable under the above-quoted sections of the Penal Code.\n\nUnder Secretary of State,\n\nFOREIGN OFFICE.", "txt_file_path": "txt/2diw2n4r2/CO129-496 - Public Offices - 1926.txt", "external_url": "", "rank": 0 } ]