1913-03-06 — Page 3

NEPREME COURT,

Wednesday, March 5th.

IN ORIGINAL JURISDICTION. BEFORE THE CAIE JUSTICE (HIS HONOUR Bie W. Regs Davies, K.C.), AND THE PUISNE JUDOS (MR. H. H. J. COMPERTZ).

APPLICATION FOR WEIT OF MANDAMOS AGAINST

THE BUILDING AUTHORITY.

The hearing of the application for a writ of mandamus to be issued against the Building Authority to approve certain amended plans of proposed buildings submitted on the 2nd December, 1912, on behalf of Lo Chap Shan, otherwise Lo Chop San, was continued.

Mr. Eldon Potter (instructed by Mesars, Johnson, Stokes & Master) appeared for the applicant, and the Attorney-General | (Hon. Mr. J. A. S. Buckmill, K.C.), instracted by the Crown Solicitor (Mr. J. II. Komp) represented the Crown, and opposed the motion:

The Attorney-General continued his reply to Mr. Potter's opening address and contended that the discretion as to whether the basement, or "storey," as he called it, was adapted for human habita tion or not would lie in the Building

THE HONGKONG DAILY PRESS, THURSDAY, MARCH 6TM 1913

That is why, my Lords, in my ex-parte application you will find the words or such other order as the Supreme Court can make under Section 205."

You cannot go to the Supreme Court at Home and ask for an injunction against a Building Authority who has adversely excreised his discretion; nor can you go for a prohibition or a mandamus.

The Chief Justice What other order

can wo give, unless we give a mandamus? Mr. Potter My view is this. If your Lordships choose, you are entitled to order the Building Authority to pass these plans-which is really a mandamus. is only another name, but names often mean a great deal, but at Home you can. often get an injunction when you cannot get a mandaarus, for instance.

It

The Chief Justice-You suggested THE ASSOCIATION OF EXPORTERS yesterday that there was a discretion rested in yourselves. You said if there is any question it is for the architect to decide.

of th presy

the world, and that being so I can only express my regret as I did yesterday that comparatively few Chinese merchants vinced that later on when they come to have joined the association. I feel con-

will come forward in greater numbers. know the objects of the association they Talking of the Chinese community, I perhapa ought to take this opportunity of congratulating Mr. Un Kam Wah on the very good work which he has done among

his colleagues will be able to induce a his own nationals, and I trust that he and

larger number of Chinese merchants to join this association, which has practical- ly been accepted by all foreign associa

As the Chairman has already tions. informed us, Shanghai has already formed an association of their own, and I cordial- ly endorse what the Chairman said on the before long all the big trading centres, subject when he expressed the hope that

AND DEALERS OF HONGKONG. The first annual meeting of the mem- bers of the Association of Exportera and Mr. Potter-No, my Lord; I don't like day afternoon in the City Hall, Mr. F. Dealers of Hongkong took place yester- the word discretion. I say, provided we Bevington presided, and there were also comply with the law, we have a right to deal with our house as we like.

present-Messrs. A. van Andel, W. Counsel said he would show their Lord-Pfaff, A. E. Kooster, L. V. Langstein, W. ships beyond all doubt that Section 183 Seigler, A. Winter, A. B. Moulder, and as a whole, which had been the bardon Un Kam of the Attorney-General's arguments Barretto, S. E. Dodwell, 3. M. Alves, Wah (cominittee), A. D. throughout, so far from dealing with Bar plans, deals with the actual construction

C. N. G. Walker, U. of the house. The Crown wanted to read Burnj.

Yo Sousa. The Hon. Mr. into that Section not only the words" the E. A whole area" but also on the plan."

G, and Mr. Winckler, That was an extraordinary position, to

Yonsulate, were also adopt. It was obvious that this section did not deal with plans nor did the Ordinance deal with plans. It was for

atice convening the meeting hal

ad, The Chief Justice-We have not to deal. The CHAIRMAN said-Gentlemen,-The with that question, but I go so far as to reports and accounts having been in your especially Hankow, Tientsin, and Can- say that it does seem to me a rather extraordinary proposal that the architect ha for some time, I propos that theyton, will fall inte line and start similar should be asked to produce a plan show-be taken as read. As mentioned in the associations. We know the big trading Ing accommodation for the whole area, without providing for means of access I express my individual opinion that that is so. takes place is that these plans come in The Attorney-General-What in fact quite blank without any division at all The Building Authority then says to the architect, Can you sub-divide it in

plan is passed, and if he cannot it is architect then says he can. If he can, the refused.

Mr. Justice Gomperts-There is a very existing houses. wide distinction between the two.

Mr. Potter agreed, but called attention, to the proviso, asking why it was inserted at all.

The Attorney-General-Is not the 110- viso as old as the Section i

Mr. Potter-No; the Act of 1903 only has the first portion. This proviso has been expressly put in, and your Lordships | cannot look åt Haneard.

The Chief Justice-Well, I was there as

Authority; and a mandamus could not Attorney-General at the time, and knew accordance with the section ?" and the the Association to the notice of practically bad difficulty in getting our friends there

be issued against any authority when discretionary power was vested in that authority, even if that power was exercised wrongly.

Mr. Potter-The question of procedure, I submit, is antirely different to that at Home, and in any event we are entitled to make our application to this Court. I also submit, if it is necessary, that it ia clear on the authorities that we would get our order for mandamous in a How Court. On the facts of the case before your Lordships now, we are entitled to Bo to your Lordships for a mandamus With regard to Home procedure, I said yesterday that the rule was that where there was an alternative suitable remedy the prerogative of the writ of mandamus would not lie. In Hongkong we have an alternative remedy, namely, appeal to the Governor-in-Conacil, but in spite of that the Legislature, expressly provided that sil our rights should be kept for us, even though we apply to the Governor-in-

Council.

The Attorney-General-It appears to me perfectly clear that Section 265 (8) ways that every Order of the Governor-in- Council shall be final. Hed the proviso not been inserted any common law right would be taken away from them, but the proviso having been put in preserves them their right, but they cannot have any more rights.

Mr. Potter-You are not naked to decide the question of fact at all. It is all a question of law.

The Chief Justice-If it is a question of law you are entitled to come for a writ of mandémus 7

perfectly well what took place. (Laughter.)

Mr. Potter Well, my Lord, you must blot that out of your Lordship's mind. At any rate, that proviso was not there in the first instance.

Mr. Justice Gompertz-If it was not for this Section you cannot appeal at all to the Governor-in-Council.

Mr. Potter-No, my Lord; we cannot. Counsel then submitted that it was clear from the terms of the Ordinance that the Legislature had, in fact, given the widest power for applying for the mandamus, injunction er prohibition against the Building Authority With regard to common law rights there was nothing in the right of appeal to the Governor-in-Council either at Home or in Hongkong to prevent his clients exercising their right of injunction. The right of mandamus was granted only to get rid of injustice where there was no other remedy, but they could always apply for an injunction. This case was purely a ques- tion of law throughout, and be would Aubmit that Mr. Chatham had no dis- cretion of any kind as to the width of pose the case, because that was not passages, and even if he had that did the reason why he refused to pass the plans If the Building Authority had informed his clients at the time that the passages were too long, they would have altered them. It was never told them, it was first mentioned in the affidavit. The Chief Justice-Assuming that you had taken the whole area and divided it into rooms of 100ft and 49ft, you then had not enfioicut windows to mout the requirements ?

Mr. Potter-Yes, my Lord; that is so,

Mr. Potter-That is his contention. He The Chief Justice-I am not quite sure whether you think it is pure law, nor never has suggested that he would allow us to divide the whole area minus the whether the Attorney General thinks so.

The Attorney-General-If it is a pure proper room for passages. Apart from question of law I do not see how it would the question of discretion as to the amount by possible for me to muccessfully contend of passage way which we are entitled to that applicants cannot receive a man-have, there is no question of fact at all, danus against the Building Authority, except the question of what is a habitable but where it lies on a question of fact, room. on which discretion is to be properly storey, and therefore does not come within I say that the basement is not a exercised by the Building Authority, they the meaning of Section 116. If I am cannot get it.

wrong in my contention, then I am out of Court on that point.

Mr. Potter-Assuming that this is purely a discretionary case, and assum ing for the sake of argument that in such a case I cannot get the mandanus at. Home, I say I can here in Hongkong-

The Chief Justice-Why

Mr. Justice Gompertz-If the room is not a storey then it does not matter whether it is habitable or not?"

Mr. Potter That is exactly what I contend, my Lord. On the other hand, if it is not a storey it is not babitable. We du aut contend that it cannot be made habitable.

Mr. Potter-I am sure of that, because the section says so. At Home, if there is an alternative remedy, there is no right to a mandamus. In Hongkong, when Mr. Justice Gompertz-It was suggested there is an alternative remedy, there is rather to us that this was a test case, and a also a right to a mandamus. Let us Boc decision was wanted. Well, in the case of exactly what we appeal to the Governor this room, all you had to do was to raise in-Council, against. "Whenever any the floor one inch, and it does not seem person shall be dissatisfied with the practical to come to the Court and open "discretion of the Board. under an expensive motion when you could avoid

this Ordinenee in respect to any good it by raising the floor one inch. matter or thing," These words cover Mr. Potter-You see, my Lord, the floor everything, disputes as to fact, construc-space was in order to get over this ques tion of the Ordinance, and every con-tion of storey. We did raise the door coivable dieputo. Now the proviso cays, and so we lowered the storey above by

Provided that nothing herein contained ift. ein. ahall be deemed to prevent any person Mr. Justico Gompertz-And if you bad

Their Lordships reserved judgment. APPLICATION FOR RE-HEALING OF AN OPIUM CASE.

report, the Association has only been in existence since the 8th of October, 1912, and, therefore, there is so far bat little information to give you concerning the working of the Association. Your Com mittee, however, have not been idle, as they have, through the Secretary, brought all the associations of a like nature in the world, and I am glad to say that the replies we have so for received have been of a favourable naturo. You will no doubt have noticed from the newspapers An application was made that Mr. lately that a Far Eastern action is being CD. Melbourne, Magistrate, be called formed in connection with the Loudon upon to show cause why he should not Chamber of Commerce. In the circular expunge from the records of the proceed which members of the London Chamber ings entitled, "Res., by H. O. Hutchison, of Commerce have received mention is r. Wong Hong," the plea of guilty made that it had been decided that action entered therein, and should not hear and should be taken with a view of obtaining determine the said case according to law, standard samples of Chinese products re-bear the case, in pursuance of Section exported from Hongkong for determinn or, in the alternative, why he should not De of the Magistrates' Ordinance, Sotion by arbitration in cases of dispute.

1800.

Mr. Eldon Potter (instructed by Mr. Reader Harris, of Messrs. Wilkinson & Grist) made the application, and the Attorney-General (fon. Mr. J. A. 8. Bucknil, K.C.), instructed by the Crown Solicitor (Mr. J. H. Kemp), appeared for the Crown.

were very short

centres at Home work under the same re- gulations, and it stands to reason that for the furtherance of trade in which wo are all interested, foreigners and natives, the sooner we have associations of this nature throughout China the better for all concerned. I very mach regret that yet seen their way to form a similar as our very good friends in Canton have not sociation. The Chamber of Commerce has to take the same view that we had, but of course their position there is different to what it is in Hongkong.

I feel con- vinced that in a very short time they will be able to come to some agreement amongst themselves and form an association. tions to the gentlemen who have taken so again offer my most cordial congratula much trouble in starting this important movement, a movement begun in a small way, which, I am sure, will have far Empire on whose borders we are before reaching effects on the trade of the great many years have passed, and I wish them all

possible succeNS. in tho future. (Applause,) the committee his appreciation of the The CHAIRMAN expressed on behalf of mars made by the Hon. Mr. Hewett,

Mr. VAN ANDEL seconded, and the motion was agreed to.

This concluded the business.

INTIMATIONS

ITCHING ECZEMA ON

HANDS AND FINGERS

Scratched Constantly. Long Cracks Bled and Sho Cried Ditterly with the Pain. Convinced Case was Incurable. Cuticura Soap and Ointment Completely Cured Her.

***I have suitspeil fix noirly five year now from a very unsightly form of corama ch my hands and anger, in spite of the costant altenitan of doctors, herbalists and chemists. The places been by email watery pimples. They burst, bécatie long emcks: and often. bled. I dovelsped two large sores on the back of my right hand and on my right wrist. Then becatre rar as if skinned and a large 29 five shiling ploves. The irritation ww so bad that I constanty scratched until they poured with blood, and I was exhausted with thorgony and cried bitterly with thepain, "I had grown firmly convinced that my cane was quite, hopelessly incurable. My aight band for months looked so terrible that I was compelled to wear a glove night Bad day, and irritated ms so ibat: I fore it till the blood poured from everal places af once I was distracted with the ceaseless pain and Rehlag, though I would try The Cuticura Soap and Clotment, and m delight was great when I found places that had been sore and painful for year gradually but surely healing up. Tacy are absolutely eurod now through the use of Cuticure Bonj and Ostment, which I applied constantly, binding up the worst places.

'can-do-my-work-new les any other wolisa, but befom I dreaded even to think of it felt refled after she first two or three Fashes with the Cuticurs 60sp and applica Ben of the Caticura Olotment, and new, after was only one ad one-half boxer of the meat my hands are soft and white. The Culicura Boap we use daily, it is so gooth- ing to the ski Culicura Soap and. Ofer ment red my hands when docters sald ! nover should get them healed." (Signed) Mrs. Alga Watson, Hatemere, the Avenue, Flatbek, nr. Harrogate, Eng., July 10, x#11 Samples with 32-p, bock free from nearest depat: F. Newbery & Sons, 27, Charterhou 8q, London; B. Towns & Co. Sydney, N.S.W. Conte, Cape Town; Mullet, Keckan & Calcutta and Boubacete, V. 6.

Potier BruK. Á -Chem. Carp, sola propa..

The motion was then put and carried, Although this Association has not, se tar, On the motion of Mr. WALKER, seconded FOR THE been formally approaching on the matter, by Mr. BAPTISTA, the following committee I take it that I am in order if I say that A. Van Andel, W. Pfaff, A. E. Koester, wore re-elected:-Messra, F. Bevington, it should be the work of the Association L. T. Langstein, W. Seigler, 4 Winter to provide the standard samples men- A. B. Moulder, and Un Kam Wah. tioned by the London Chamber of Coming confirm the election of the entire

The CHAIRMAN proposed that the meet sacree, and, furthermore, to do all in this membership consisting of Chinese and Mr. Potter-The facts really involved Association's power to help the London 41 Europeans Hong was charged at the Police Court

A man named Wong Chamber of Commerce in the matter. on a certain date with an offence under You will also no doubt have heard that the Opium Ordinance. A plea of guilty & similar Association to curs has recently was entered by the Magistrate and the been started in Shanghai, and I hope that Iman was fined a sum of 8600. He was

wards instructed his solicitors to make an of similar associations in all the ports of unrepresented at the time, and ho after this is but the forerunner of the starting application to the Magistrate for China, and I look forward with confidence re-hearing of the case on the grounds to the time when there are such associa that the plea of guilty upon the record tions in all the chief trade centres of to the Cabinet of the Republic represent- that in fact he did not plead guilty, and was an error. He had, in fact, paid the China, and all these associations are ing the Imperial Household that the because he was sentenced to three months fine prior to the application being made working together, when I think it will remains of the late Empress Dowager will 16 Power imprisonment in default, and he did not be a proud day for Honghong to remembe placed in the Imperial coffin and

rentoved to Kwangtch-tien at Chingshan 12 to the Chingantien at Liang Luo-chuan on the 20th and will further be removed

12 of the Western Hill in a day in April which will be decided later on.

difficult at the moment to see why the starting of such asscolations. I trust that want to go to prison. It was a little ber that they were instrumental in the Crown opposed this application, but no doubt there was some reason. Neither in saying this merchants in other ports did he realise why the Crown should call of China will not think that Hongkong is upon him to show cause, because all this taking undue credit to itself. It has been be found innocent, but that he should be mun was asking was, not that he should a matter of regret to my Committee that so far but few Chinese have joined the re-tried by the Magistrate, So far as merits

were concerned, they were association, but better results are looked altogether with the applicant. Counsel for in this direction this year. In my quoted extensively from the affidavits filed in connection with the case, and said preters at the Police Court declared a it was remarkable that all three inter- week after the case was heard that they remembered nothing about it.

Mr. Justice Gompertz-You got dozens to those who joined. From the report four-fths of them plead guilty, and it of wood oil and the conditions in regard of people in that Court and very often before you, you will see that the question often occurs that the interpreters forget. Mr. Potter-Yes, my Lord; but would they forget a few days afterwards!

Mr. Justio Gompertz-I think it possible.

extraordinary opium cases as all that,

Mr. Potter-There are not so very many Mr. Justice Gompertz-But not opium cases. I mean, other cases as well. the authorities knew that our application

Mr. Potter-Oh yes, my Lord.

But in the matter depended upon the fact that the defendant did not plead guilty at all I venture to submit that every interpreter should have been called, and

THE LATE EMPRESS-DOWAGER. the

relating to the death of the Empress The Chinese newspapers publish reports Dowager as follows :

On the 24th February Shih Hou wrote

Yuan Shih-kai hes proposed that the Republic should provide the sum of $2,000,000 for the Imperial funeral and ha placed a bill regarding the same before the National Council,

to solely attend to the future of the Yuen Shih-kai has despatched Prince Li Speech on the 8th of October last, Imperial palace and the affairs relating some of the ideas that led to the formation

to the Emperor, deavoured to put before those then present of the association and the use it would

to its sale bave been brought before the Committee, and a sub-committee is at present engaged in going into the ques tion. While I have no doubt that the Committee you will be asked to elect this afternoon will do all in their power to

I would suggest to the members of the further the interests of the association, yet

association that, when they have or boar of any matters which they think are: worthy of the attention of the association,

the one who interpreted this case could they would write to the Secretary and ask casily have been traced a week afterwards, him to bring the matter before the Com. and should have been asked there and mittee. I have now to propuse the pass the defendant plead guilty!" Furthering of the accounts as presented, and hope then, You interpreted in this case. Did more, why did Mr. Melbourne remand the that by the end of this year the associa case three times and desire the solicitortion will have been able to pay all its to communicate with the Superintendent initial expenses and have a credit balance of Imports and Exports on the matter, after the man was supposed to have in hand. pleaded guilty, if he had not some au- Mr. DODWELL seconded. certainty

Hon. Mr. HEWETT-The adoption of the Mr. Justice Gompertz-I suppose he report and accounts having been pro wanted to give plenty of time.

The Chief Justicehould have posed and seconded, I suppose it will be thought he would have communicated in order if I make a few remarks at this with the interpreters in the meantime moeting. Only yesterday afternoon in Mr. Potter agreed, and then proceeded this room in my position as chairman of a re-hearing and granted leave to appeal

ZEISS

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£10.10.0

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£9.5.0

26.10.0

6

(large field)...... £7.10.0

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£6.0.0

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(small model)

£5.18.0

£5.8.0

To bo Obtained from

duty to pag Chs. J. Gaupp

the Paluce on the 24th and seat for the It is reported tast Princess Yu attended

Minister of the Imperial Household and tect the Emperor, and the Emperor calls told him that it will be her duty to pro-

Tee, who have not been in Teking for her Imperial Lady (Huang Ah Lang.)

Prince Tani Tao, Yu Lang and Isai

some time, have returned to Peking and with Prince Chun and Prince Pu Lun attended the Imperial Palace and the ritual duties. However, neither Prince yet. The reading of sacred books by Ching nor Prince Kung are in Peking priests according to the usage is going on in the Palace

has written to Prince Chun that Princess Chin, an Imperial Consort to the late Another report says that Yuan Shih-kai

Emperor Kwanglsu, be ordered to asume the title of Imperial Dowager Consort to Emperor, and if any one does not obey the attend to the education of the young Republican Government will take steps to protect the Imperial family, etc..

A DOMINIONS, NOVEL COMPETITION.

Messrs. Hodder & Stoughton have decided to offor four prizes of £250 for the best novels submitted by natives or residents of (1) the Dominion of Canada and Newfoundland; (2) the Common wealth of Australia and New Zealand; (3) the Empire of India; and (4) British Africa or any Colony or Dependency not included in the Dominions already nem 1.

Garvice: India, Bir. A. E. W. Mason; Gibert Parker; Australia, Mr. Charles

Africa, Sir H. Rider Haggard

from applying to the Supreme Court for lowered it 1ft 7in-lowered it another to declare that why the Magistrate refused the Chamber of Commerce, I referred The adjudicators are For Canada, Sir

mandamus, injunction, prohibition, or other Order, and be elects so to do instead

"

words absolutely cover every ground of appeal mentioned in the preceding para graph. That is to say, instead of appeal ing to the Governor-in-Council against the exercise of discretion or against any action or decision of the Board as to the

inch?

Mr. Putter said he did not but con ended that it could not he said to be an admission of guilt.

Mr. Potter-Exactly, my Lord; but we after he supposed the man had pleaded to your association, and having had the of appealing to the Governor-in-Council considered we had lowered it enough. guilty passed his imagination. When the honour of being asked to be present this

which We say, as a matter of fact, that we have man was charged he did not plead guilty, afternoon, I wish to take this opportunity wherever at present residing, who under this section.

made it five inches lower than we need to, but said, I admit I have no permits."

The Chief Justice-Surely you do not offering my most sincere congratula The Chief Justice--I quite understand take that as a denial of guilt?

tions to the committee and all those who that this question of storey does not only

have helped in the hard work and done affect you clients but scores of other

so much in a very short space of time. people.

It is hard uphill work, I know, to get Mr. Justice Gompertz-As a matter of Mr. Potter, continuing, said that befact, a Chinaman does not always ray.

even a part of the business community of carrying out of the Ordinance, you can thought they were all agreed that the first in reply to the charge, I am guilty, Hongkong to agree to the formation of go to the Supreme Court for either a point was the most important, and he

or "I am not guilty." He generally this association. I take it that the un- would show their Lordships that there says, "I did," or "I did not do such and derlying object of this association is that mandamus, injunction, prohibition, or

such a thing." any other order. It does not say at all was no intention in the Ordinance to say

you will work together on terms of that anyone shall be prevented from how much passage way his clients might Lord. The interpreter rendered his absolute equality, a fair field and ̈no

version of the man's statement. applying for an injunction or mandamus. or might not have.

favour, the best man to win. That, of The hearing was adjourned.

course, is the basis of business all over

Mr. Potter That is what I say, toy

|

tire

t &

The competition is open to all writers, connected with one of the Colonies or Dependencies by birth or by residence of not less than one year. No author rudy: submit more than two books. 168,

b received by Messrs. Hodder Stoughton at St. Paul's House, Warwick spare, London, EC., on or before March 31, -1014, and novels must not exceed 150,000 words in length. One of the cor ditions of the competition is that the rize-winners agree to cede to the pub- lishers all rights of every kind in the winning novels. Payment will be made upon publication, which will be within a year of the announcement of the awards,

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