1904-08-25 — Page 3

Page

SUPREME COURT.

Wednesday, 24th August.

IN APPELLATE JuniadiCTION,

BEFORE THEIR HONOURS SIR WILLIAM M. GOODMAN (CHIEF Justice) and T. SER- COMBE SMITH (PUISNE JUDE),

CHAN UT SỰI AND PUN KAN SHAN V. CHU

LEE AND CHOW PINA.

The Chief Justice, in delivering judgment, said—This is an appeal from the judgment of the Chief Justice in the above action, delivered on March 20-last, in favour of the respondeata, who were the plaintiffs in the action. When the Praya Reclamation Ordinance was prese on May 10, 1980, there were three sections of Marini Lot 5, which fronted the then Pray namely sections B and D, and what was called *the remaining portions."

There were also two sections, namely, section C and section A. which had no frontage on the Prayu.

The reclamation from the sea or harbour on the other side of the Paya (a fifty foot roadway belonging to the Crown and running between the harbour and Marine Lot 50a) was to be nade under the Ordinance. Section 7, which is numbered us Section. & in the new edition of the Ordinances. begins by reciting that (as I interpret the section) the frontagers, or the

THE HONGKONG DAILY PRESS, THURSDAY, AUGUST 25th, 1904.

ENLARGEMENTS

3

lots or sections thereof frouting the Prays; are contained in Betion 7, which, in brief, pro- i roadway along the line of the proposed vides for agreements to be entered into between reclamation. In his judgment in the Court the Governor and these Crown Tees who below the Chief Justico constrund the words have complied with sub-section II of section be thrown about and thus made dirty or lost; white pnlarged ones, framed and hung up, will last The best way to preserve your Pictures is to have them enlarged, Small prints are liable to "lots of land or Rections thereof frouting the 7, by signifying in writing their acceptance for ever, besides serving as decorations to the walls. Praya roadway" to moun imlivided kota which

of the land assigned to them on a certain fronted the Praya roadway, or sections which plan and of their intention to enter into an fronted the Praya roadway, and rojected the agreement. Yin Chow being Crown lessee of contention of the appellanis that the words cant lots of land frouting the Praya roadway or sections of lots of land which front the Fraya roadway antecelent to "which" being lots of land" and not "sections." I concur in

the

construction adopted by the Chief Justice. It follows that those persons who owned back voctions. ie.. sections nat fronting the Praya roadway, were not titled to shaw in the scheme propcunded by the Ordinance, and that so far is M. L. 53 A is owners of sections B couerued only the

sediona B and D ofM. L. 53a, was entitled to

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The Ordiemen, the agreement, and

involve him in Eligation and trouble if he did. Mr. Stephens, the lesson of back seo- tion C, was a lawyer, sud oven Mr. Bruce Shepherd, the offloal who was acting us Land Officer for the Government, appars to m in this particular case, for some reason which I cannot understand, to havs given some countenance to the claims of the back section holders of Marine Lot 53a, because in his ovidence he says: “ What I decided in the

enter into the agrement which Chu Chuen watter was that the person entering into the

signed, provided lo (Yiu Chow) signified to the Crown his aceptaneo and intention' as agreement should guarantee either to assign an The Court delivered judgment in this appeal equitable proportion of the raid reclamation,

foresaid. Notwithstanding the evidenco of nguinst the decision of the Chief Justice. Mr

or to pay an equivalent in money to the owners

Mr. Druce Shepherd that Yiu Chow "did not M. W. Slade (instracted by Mr. H. J. Gedge of tim buck sections. Now, if I am right in

Rigaify his assent under the Ordinance," it is of Messrs. Johnson, Stokes and Master. may construction of the Ordinance, the hack

clear, I think, that do Crown recgnised Yiu solicitors), was for the appellant; and Messrs.section hotlers had no clain whatever. I

Chow, as a Crown lessee who had signified his E. H. Sharp, K.C..und H. E. Pollack. K. C

cannot, therefore, quite see why Chu Chuen was

captanes under metion 7 (3) of the Praya (instructed by Mr. J. Scott Herston, of Messrs.

This Reclamation Orduance, 1889, allowed to enter into Yiu Chow's agreement, as Ewens and Harston, solicitors), for the

male clear by Government Notifica- well as his own, except upon the understanding respondents.

that before the Crown Lenses came to he gent and D. and of the remaining portion could tion No. 530 pablished in the Hongkong ed, years afterwards, when the reclamation participate in the reclamation in front of M. Lovernment fuzette of 19th December 1891. A. The terms of admission to the scheme That notification in part is as follows: The should be finished, the question of what was

Hongkong, 15th August, 1904. Yiu Chow's proper proportion, that is to say his were that the sligible Crown lessees, or their Prega Roclamation Ordinance, 1889--List of equitable proportion of the whole reclamation assigns, should contribute towards the cost fesses who have signified their acceptance of in front of the whole of Marine Lost 33a, would of this works, and that the Gusurner would the portions of land assigned to them unler for Yi Chow, but I lay not used it for tlut

geant Crown buses of auch equitable propor- the Praya Reclamation Ordinancs 1889, section purpose, bave to be settled amicably or by the Court In the letter of Foranty 3. 1990, frosu the lion of the reclamation as night finally be sab-section 2.—Ex the schedule attuched there surrounding circumstances demonstrate in y Those terms being settled, a plan is this---Sust. No, d- Registered No. of Marine | judgment that the relation of trustee and Colonial Secretary in response to a efvins in available. respect of a back section. Chu Chuen was toll showing in detail the portion of the proposed Lot, 53, and 500; names of Crown lessesor their rentui que treat oxisted between Chu Clnien I am directed to inform you that your rights recintaation assigned, to lessees and a schedule assigns on date of reptance: Section K, Yin and Yi Chow in respect of the right to a will be duly considered when the leases to the containing a list of such lessus and the up- Chew; Section D, YinChow. I do not doubt there grant of a Crown lese of that portion of the fore that Yin Chow qualified to enter into the reclamation which is marked red on the plan reclaimed land art Leing prepared." Chu Chenproximate contribution required from each had already been informed by the letter of were to be deposited at the Land Registry agreement, and as owner of sections Hand D

annexed to the agreement signed by Cha Pursuant to Section 7 became under the Ordinance equitable owner

Chuen. It must be assumed that the lad January 9890, from the Colonial Secretary Office (Sec. 7).

of the right to the grant of a Crown lease that as a back section owner of Marine Lot the deposit of the plan was notified in the 68, he could not be allowed to sign a

of the reclamation delineated red on the pinu Guardle of the 4th July. 1889. unit a copy of the *S would schedule was simultaneously published. There-annard to the ngement, which he should reclamation agreement, but

not take no for an auswer, further con upon it became necessary that the lossers who have signed, but which was in fact signed sideration of the natur was referred to were desirous of entering into an agreement in | by Chu Chuon The legal right being by

should, witkin sporiod of two months from the right by the Ordinance in. Yin Chow, Chat cust to be incurred for, and in connection with. Contally true that, in all the cirennstances,ith of July, 188, signify in writing their accept Chun was trusten for Yin Chow of such right. Yiu Chow did not enter into the statutory agree ance of the portions of land (ic.. reclamati n Now what was that sight ? It was the right to provided the Governor

a Clown lease, that is, would grant to thein, respectively. Crown Lensesment within the stulatory three months from land) assigned them on the plan deposited, a grant of of such equitable proportion of the proposed July 6, 1989 (the date of notification, required and of their intention to enter into an agreement. chow in detion, which is personal property. Aby which the question can be raised against the

But it is also true that! Under these circumstances, Yin Chor who as

content for a leane is an interest in Ind roclaination us might be available, having regard by the Ordinis.

Chu Chuen only entered into the two agree-

owner of front sections B and D. would have within the meaning of section of the to public requirements in rispet of rouds and

ments, namely his own and that into which Yin been titled to his equitable proportion of the Statute of Frauds: the words in the 4th section streets to be made on the land when reclaimed

ure lands, tenements, or boredituments, or and in the case of each frontager (as I interpret Chow sight to have entered, on December 19. available reclamation in front of M. L. 55 A

any interest in or concerning thêm.” the word 'lessed in the circumstances) having 1889, nthough the old date of October 5, 1989, upon signing theagreement, refied, for reasons

The 7th regard to the claims of other frontagers (the

was in each cuse allowed to remain unaltered on which need not be speculated up, to enter inte

section mentions lands, tenements or here- this agreemont. Thereupon Chu Chuen, for ditaments," but does not mention any interest woril is "lessers," which I again hol to mean

the agreemont. The Crown venld, howover. I

reasons which it is diffeatt to understand, was presume, by its representative allow the agree

in hom. The inference is that interests in

tion given by the first fow lines of the section).

The section then provides that a plan should under its general powers, if not under its statu- be made, signed by the Surveyor-General and tory authority. I do not think the undertaking countersigned by the Governor showing in detail the portion of the proposed reclamation construed as such proportion as I. Chu Chuen. assigned to learces (1.2. ue I interpret it froutaerroneously consider to be an equitable propor-out this action. In this state of affairs, the gers) in respect of the lots of land or sections thereof registered in their names at the Land Registry Office at the date of the

he

majority of them. had already declared or signi- the then distant fature date when the actual the form of the schedule to the Ordinates the agreement în Cia Chuon and the equitable

tied their remiiness to contribute towards the

the reclamation.

frontagers, in accordance with the interpreta-

This

commencement of the Ordinance. plan was to be deposited at the said office and to. lave unnexed to it a schedufe conteining a list of the lessues (.e. us I interpret it frontages) of such lots of land and sections us aforesaid, and the approximate contribution required from such of them in respect of the cost of his portion of the reclamation. This plan and schedule were to be gazetted. This was duly done. The plou showed the equitable proportions of the reclamation in front of Murine Lot 53a. respec- tively allofted to Yin Chow, the lessee of sentions B and D), and to Chn Chuen, the lessen

|

Crown Leases would be granted. It is

ment to be entered into after the three months

to assign au equitable proportion can fairly be

tion.' It must wear such a proportion as a Court of Equity would, if appealed to. hold to

by an 'equitable proportion. It is clear that

the Government considered that Yiu Chow wBH

to be deemed a person who was willing to accept the portion allotted him on the plan, because in the Government Notification, No. 33, in the Hongkong Gorerament Guzelle of December 19, 1801, Да

List of Leseces who have signified their aceptance of the portious of land assigned to them. etc.. etc.' is given, and ander the heading of Names of Crews Lessees or their assigns register. į eil on date of acceptanes, the name of Yiu Chow is given as regards sections B and D of Marine Lotta. In ray opinion, if the matter had been brought for the decision of the Court in 1889, the Court would have held that Yiu Chow's equitable proportion of the whole reclamation

It

of the so-called " remaising portion, both being frontagers and, of course, it showed no portion allotted to the lessécs of rections A and C, who were not 'frontagers. The schedulo gavo Yiu Chow 5,858 square feet and Chu Chmon 1,526 square foot. Tho system of apportioning to frontagers' only was carried out all through the subone. Mr. Braco Shepherd, the Laud Officer, in his evidence stated --The general rule was to divide the reclamation according to the line of frontage. Husal frontags where un- divided and frontage sections where divided. In the Government scheue, no portion of the reclamation was allotted to back section owners of Marine Lots. In my opinion that course was in accordance with the intention of the Ordinance. It has been acted upon all through, and to place any other interpretation upon the Ordimuer new, when, after fifteen years, the reclamation has been practically completed and frontagers" lave paid their contributions and dealt with their interests in the portion, allotted to them, would be most disastrons. In my opinion the plan and schedule allotted their respective equitable proportions' to Yin Chow und Chu Chuen quite properly, and I can not help believing that if those gentlemen land been let alone they wont have signed the agreements for their respective portions of reclamation in due course. Someone, however, in my opinion, misreading the Ordinace. put it into Che Chuen's head that he was entitled The Prisne Judgo said. In May 1st the

permitted to sign the agreement in respect of the reclamation to M. L. 53 A. sections B and D.

That agreement was nominally dated Oct. 5th,

188, and had attached to it a document which has been designated an "undertaking through

successors in title of Yin Chow brought action against the scesors in title declaration of Chu Chuen asking for a that they were entitled to much proportion (from front to back) of the whole of the reclamation to Marine Lot 53 A. as the

[1]

frontage of their property, sections B and D of the said lot, upon the ohl Praya roadway (now known as Des Voeux Road; hears to the whole frontage of Marine Lot 33 A upon the said roadway. The Chief Justin decided that if the plaintiffs were willing to refund with interest at $ per cent. the $2.000 paid by Can Chuen to Mr. M. J. D. Stephens and the money contributed by Chu Chuen and the defondante towards the cost of making the Fraya he ought diepated portion of the Reclamation ought to to decree that the Crown lease of the whole

be granted (on payment of any further contri- bution that might become due in final settle

·

markedwd on the plan annexed to the agree.

10

mont was allotted to the owner of sections B and D, because it was deemed to be the equil able proportion to which that owner entitled by the Oreliquance. At any rate, Cha Closem was trustee for Yin Chow of the portin allotted on the plan, and if Yiu Chow's succes- sors in title, the present respondents. are dis satisfied with that apportimment there are meus

cannot affect the rights of Chu Chum

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Crown as to whether they are receiving the equitalle proportion contemplated by the Ordin- anee. In my opinion they will receive that pro portion, though this expression of opinion is not meressary to the decision in this case. On

have a daim against the Crown by rean the otherhand, if the appellants think that they ¦

tand knob as a central for a lease are not with-

of the undertaking given by Chu Chua in action 7. But if this view be unsound and they lea have their remedy; but this of hands, tenentouts of horeditaments within end Ya Chow, inter an. and those rights the trust arising in the present case is a taust section and if there is no document siguel form the only matter for consideration in this by defendant proving the existence of the trust appeal, I therefore think that it should be de alloged, nevertheless athur uvidenco is adinis.clared at the plaintiffsure entitled to the grant sibh to prevent the Statute of Frauds from of t rown lease of the area of land markód rad wing weed in order to commit a fraud. In in the articles of agreement dated 5th Oct... 188. Rochefoucauld r. Boustead (1847) I Ch. ut

but apparently executul on 19th Dec., 188); P. 200, Lindley. LJ. said: It is further

that is to say, to such proportion (from frout to DR. NEWELL WILSON, DE, WILLIAM DANEL established by a series of cases, the propriety back) of the whole of the recluumtion to Marias of which cannot wow I questioned that

Let 53A as the frontage of the plaintiffs' pro- the Statute of Funds does not prevent proof of a fraud; al that it is a fraud on the Perty. Becticus B and D of the suid lot upo part of a person to whom land is conveyed as

the old Praya Roadway (now known as Des a trusted and who knows it was so conveyed

Voeux Road bears to the whole frontage of Maring Lot No. 58 A upon the said roadway; to ceny the trust, and claim the land himself.

and that the plaintiffs refund to the defendants Comequently, notwithstanding the Statute, it is competent for a person claiming land con with interest at 8 percent, such anms as they, versl to another to prove by · pazolo evidence or their prodocessors in title, have contributed that it was so connyed upon trust for the

the cost of the reclamation in question, as - facts, is denying the trust and relying upou the bought the alleged reclamation rights of the claimant and that the grantee. knowing the well as the sum of $2,000 for which Chu Chamou

owner of back section C This appeal should therefore be dismissed with coatsi

form of conveyance and the Statute in order to keep the lund himself." This passage in my judment covers the present case if the pr the plaintiffs; or if granted to the defendants,perty of which Chu Chuon was trustee is that the kaa mast be held by then in trust for the plaintiffs. It is from that decision that this appeal lies. There are two questions raised on

in front of Marine Lot 53a was that portionment of the Praya Reclamation Accounts) to allotted to him by the plan and schedule, end that Chu Chen's equitale proportion was the other portion allotted to him by the plan and schedule respect of what was called the reaping portion of Marine Lot 53.

this appeal: (L.) Was Chu Chu a trustee for was admitted that the appellants stood in Yiu Chow? (II) If he was, of what was he the pince of Chu Omen. their predecessor trustee? By an agreement dated Oct. 5th, in title, and that the respondents stood 1899, the Governor of Hongkong stipulated in the place of Yin Chow, their predecessor that apou the completion of a certain in titis.

I can see nothing affecting this Ie

clamation and upon in the fact that. after this action was begun. Chuen of certain sums, he. (he Governor) payzocht by Chu the appellants were allowed to enter into would grant to Chu Chinen a Crawn lease of possessory agreement in giving a undertaking to that given by their predecessor. caloured rad upon a plan annexed to the agrae- aizalar that portion of the reclamation delineated and Chu Chuer, and on the whole I adhere to the ment. In that agreement the name of Yin judgment I gave in the Court below, and which Chow is struck out, and the auro (bu Chuon went fully into the matter. On reforring to is substituted. Chu Chuen must therefore have my notes I see that the counsel for the appel been aware that he was signing an agreement lants alaitted in the Court below, while Mr. originally intended to have been signed by Sharp, K.C., the counsel for the plaintiffs, was Yin Chow. The plan annexed to the agree opening his case that the plaintiffs were ment showed that the reclamatou of which a entitled to a portion of the extension, te. of the reclamation; and if so, I can only say it appears to me that they are entitled to the proportion the plan and schedule allotted to Yiu Chow. The appeal, therefore, must be dis. missed with costs.

within section 7 of the Statute of Frands It was urged that Yi (how had forfaited his right to enter into an agreement and had boon relegated to his rouedies under Section 7 (6) of the Pray Reclamation Ordinance. If this is urged on the ground that Yiu Chow was not only out of in it. also did not

enter into ari

to

BADINAGE.

I note that my friend Mr. Bennet Burleigh has been advising Si Y. Fukushima how to could th War.

That's nothing.

Keman said to me as soon as the war con-

dent of the Daily Telegraph, but when claims of

menced, Remember, we rely upon you." And ayreement the objectios I havor't failed him, you bot. Earl Hayashi

he signed an agreemnout, did equally applies to Chu Chua, whe, though told the King that he didn't know where they'd within the prescribed time, viz., or or hofore tips from Stray Notes Duke Ito said som

not sign

have been if it wasn't for constantly getting.

5th October, 1889); for though that agreement thing the same effect when I last met him, not signed until somecate between 6th and 20th in acknowledging his obligations. I should not wasdated 5th October it is certain that it was { while Knight Kurorta bas never been backward

December, 1889) and very probably not till it!! December, 1899 (see letters of 6th and 20th have said anything about the matter if it hadn't December. 156, Mecover it concerned the

beon forthe statement made by the war correspon-

Crown only, and in to minor cquetrned Cha Chun how the Crowns was pleased to treat Yiu Chow after he had siguified his arguptance and intention, though he had failed to enter into an agreement. I thik therefore that there is no foree in any contention that Yin Chow had lostlus right to come in muder the reclamation

Speaking at Sutton, Surrey, last month, Mr. scheme, and had thefore ceased to have an Keswick, M.P., suid that the recent incident in equitable right to the grant of a Crown lease Hitherto I have madene allusion to thedocument

the Red Sea made one sigh for half-an-hour of which was attached to the agreement, sigued the affair. He hoped there were others who Lord Pilmerston, whe would soon have settlel

on 19th December, and lins boen called the

this sort are going round it would be mere ock-nedesty on my part if I were to concel how nach the Japanese are indohted "F. A.G."-Kobo Chronicle.

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Crown lease was agreed to be granted was the reclamation in resport of Sections A wel D of M. L. 53 A. Of this al Chu Chuen rust have been award when ho signed the agree mont. Further Chu Chuen was not the owner of sections B and D, as he well knew. Chu Chuer also know that Yin Chow was the owner to a much larger proportion than that allotted Praya Reclamation Ordinance, No. 16 of 1689, of these two sections. Mooter, under the to him, because he helda, cousidamble proportion was passed to carry cut a scheme for the reclam- proviso to Clause 5 of the agreement Chu, of Marine Lot 53u, as a back suction owneration of the foreshore opposite the City of Vie- Chuen was to obtain no other rights over the undertaking" throughout this case. I view that would art not less valiantly and not loss With CHAMBER for 10 CARTRIDGL1 Whether it was the English gentleman who wrote toria. At this date, Marine Lot 53 A, which new foreshore in front of the reclamiation than Chu Chuen's letters to the Colonial Secretary was affected by the Ordination, stood divided he had in respect of sections B and D of M. L. docement as embodying a preliminary agree.promptly for the glory, hanour, and protection I do not know. The name of that gentleman into tre sections. A, B, C, D. and a rimnining A. As he was not owner of sections B mest for what it was worth between the Crown of the entry. It was necessary in these days was mentioned in the Corrs of the portion. The owner of front sections B and D and D he had no rights of foreshore in respect and Chu Chaeu. By preliminary agreement I to natious, but over-caution frequently arguments, and it was clear to me that Chu was Yin Chow, predecessor in title of the pre- of those two sections. The only way therefore zu an agreement preliminary to the signing brought about the calamity it was desired to Chuen's letters were not written by a Chinese. out spondents. The owner of back section of giving effect to this provisa would be to treat of the agreement under the Ordinance by Cha vert. However that may be, the contention on the A nad of the remaining portion was Chu Chu Chuen us representing the real owners of Charu. It was a condition precedent to Chi past of Chu Chush was that the equitable Chuen predecessor in title of the present sections B and D. From the agreement itsolf Chum being allował to sign that agreement proportion' which really ought to have been ai-appellaut. Back section C was owned by Me, therefore, and from the fact that Chu that he should give such an undertaking. lotted to Yin Chow was so small that he could M. J. D. Stephens. The alleged reclamation Chuen was not owner of sections B and That document can into existence as a result not build upon it in conformity with the building | rights belonging to this back section were later D. I conclude that Chen Chinu entered into of the Colonial Secretary's letter of 6th agreement of the Relaniation Ordinance (see on bought by Chu Chuen from Mr. Stephens the agreement not for himself but for Yiu December, 1989; without it, no agreomant letter. December 20, 1889). There was no for $2,000 (seo third paragraph of Chu Chuen's | Chow, and that whilst the legal right to the with Chu Chuen would have been made. evidence that Yiu Chow consulted any lawyer, letter of 20th December, 1889), who, according to benefit of the agreement was in Chu Chuan, That document das not in my opinion in and, fifteen years ago, Chinese in Hongkong the proper construction of the Ordinance, were the equitable right was in Yiu Chow. Turning any way control or modify or affect the con- were even less familiar with English law entitled to share in the scheme propounded by now to the Przya Reclamation Ordiziance, all straation to be placal either on the agreement than they are now. Personally, I have no the Ordinance. According to the introductory the reclamation projected under the Ordinance of 10th December, 1889, or on the Prays doubt that the real reason why Yiu Chow portion of section 7 the persons so entitled rested absolutely in' the Crow, with power Redamation Ordinance, 1889, and does not did not signify his acceptance in writing and were the Crown James or their nasigns who, to the Governer, subject to the provisions of thraw light on the question of the property of enter into the agreement propaved for him rus at the date of the commencement of the the Ordinance, to deal with und dispose of that which Chu Chuen was trustee for Yin how- that he was afraid that those who asserted Ordinanco, viz., May 10th, 1830, were registered reclamation to as full an extant as in the It may have evidentiel value on the point the claims of back section holders would in the Land Registry Office in respect of the case of other Crown Lands. Those provisions whether Chu Chuen considered himself a trustee

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