1921-09-17 — Page 3

Page

THE RENTS ORDINANCE, FIRST APPEAL CASE HEARD. QUESTION OF SHOP OR DWELLING.

THE HONGKONG DAILY PRESS, SATURDAY

VICTORIA "RECREATION

CLUB

EXAMINATION OF DOCUMENTS. IN THE CASE

SEPTEMBER 17TH, 1911.

THE CASSEL CONCESSION. Government But why was this loa

arranged in the form of a deposit! Apparently the Syndicats desired to escape the criticism of tending monays to the Kwangsi militariste, in their. struggle with the Cantonese forces.

* 17

A SHARES.

NIGHT SWIMMING FETE. There was a large attendance An appeal under the Rents Ordinace night swimming fete held by the Victoria was heard, at the Supreme Court, yes- Heareation Club, last night,Amongst terday, by the Aeung Chief Justice those present were: the Chairman of the been reproduced in Hongkong from the Clause 3 provided for the floating of ao

Clab, the Hon. Mr. Claud Severn,

Melbourne, Lieut. Commander

(M. H. H., Goniperte) and the Puispe Judge Mr. J. B. Wood).

[CANTON, INFORMATION BUREAU.]

CANTON, September 14th. Ao article on the Cassel Concession bas London and China Express. The article

The case was one in which the Tait Lieut.-Commander Stern, purports to be a clause-to-clause exa Kwangtung Collieries, Limited," with a

Mrs W. Bowden-Smith, Mr. W.mination and others.

The following were the officials:- Judges. Mr. A. Silva Netto, Master

L. Railton. Gr. May, Mr. E Busschaert and Mr. M.

Tung firm sought the ejection of the Fook Tung firm from' premises owned by the former at No. 93, Connaught Road West. After he had refused to non suit the plaintiffs the Puisne Judge held that the plainufis had shown that alternative, premises "reasonably equivalent in all repects were available for the defend. ants to go to and he gave judgment in the plaintiffs' favour."

MP. C. G. Alabaster (instructed by Messrs. d'Almada and Mason) appeared for the appellants and Mr. F. C. Jenkin (instructed by Messrs. Johnson, Stokes and Master) for the respondents,

The appeal was based on the following four 'grounds:-

1-That his Honour the Judge was

wrong in deciding that there was a case for the appellants to answer as it had not been proved at the end of the respondents' case that the alleged alternative accommodation was reason-

ably equivalent in all respecto.

That big Honour the Judge was

wrong in deciding on auspicion accom- mod was available to the appel lants on the date of the judgment.

3.That the decision that the said accommodation was reasonably equival ent was against the weight of the evi

dence.

4-That the decision that the said accommodation was available to the appellants on the date of the judgment was against the weight of evidence.

CASE FOR THE APPELLANT,

Arguing that the plaintiffs should have been non-suited, Ar. Alabaster urged that under the section relating to these proceedings the Court must be satisfied (a) that the alternative premises were reasonably equivalent in all respects and (b) that the premises were available on the day of the judgment.

The whole scope of the Ordinance, Mr. Alabaster contended, was in restrict the right of the landlord to recover posses sion. Counsel quoted decisions, under a similar Act at home in support of his contention that there must be positive equivalent -evidence that reasonably accommodation was then available.

There were certain facts, from which the Court might draw its own conclu- sions. The alternative prenises were

rejected by both parties otherwise the action would never have been brought in the opinion of the defendants--the alternative premises had been reasonably equivalent in all respects they would have gone there.

The Acting Chief Justice pointed out that even if the premises were in all respects equivalent the old firm might say that their goodwill had attached to their premises, or that they did not want the bother of moving.

%

Mr. Alabaster said that if the accom- modation was a place where it was found more difficult to do business and where the goodwill of the business was lost it could not be said to be equivalent in all respects Actually the only sense in which the two places were equivalent war that they were both four-storied build inge

Competitors Stewards, Messrs. J. Evans, G. W. Sewell and G. T. May.

Starts. A. A. Alves and Mr. R.

Witchell. Time keepers-Capt. Wheeler, and Mr.

J. Wilton.

TO THE CONTESTS, Two lengths hurdles handicap-1. J. V. Ramsey 35 3-8 secs. 9, W. Gerrard

.38 3-5. secs.

Boys, ane length handicap. The heats provided two close contests-First heat

Second 1, C. J. Hammia; 2. A. Bliss heat; 1, J. Pearne; 2, W. Urquhart and Final: 1, 0.3. A May (dead, heat). Hammis. (16 2-5 secs.3 secs, start); 2, W. Urquhart (13 1-5 sec.)

100 yards trial. A fine race was won

by JR. Johustone (18 1-5 secs.) Second:

. Jack (64. sccs,)..

Girls Two Lengths handicap: 1, D. Witchell (15 secs.) 2. Connie Smith (4 seca.): 3, Ruby Chu (15 #ċes.).

Service team race.-An exciting contest" resulted: 1, R..A, 3 mins. 19sec Navy 3 mins. 37 sec

2,

High Dive: 1, G. Hall; 2, G. Jack; 3 T. L Knight

Long plunge.-1, L. R. Duncan, sft. gins: 2, E. de Sousa, 40ft. Gins.

Ladies Team Race. Miss Connie Smith's team beat Miss Ruby Young's

Coin.

Four lengths bandicap (members). A close race.-1, E. Noronha (69 sees.); J. V. Ramsay (72 sees.). "

SPORT.

LAWN BOWLS.

SHANGHAI . TAIZDO CLUB.

2.

A splendid game resulted from the mecting of the Shanghai Interport team Taikoo," yesterday afternoon. with Both teams were at the height of their form and the spectators, of whom there were a large number, had an exciting was thought that time. Until tea-time, Shanghai would have an easy win but MoLoughlin laid s in the first head after tea, which brought the home scare from 14 to 19, Shanghai never recovered from the shock, though they played with all combination

their

great powers

of

exercised to the uth degree. "Taikoo," gradually improved their position and won by 25 to 18.

The following were the teams :- SHANGHAL-Marks (1), Tweedie (2), McAlister (3), and Shaw (skip).

WATER POLO,

the

and

but.

As regards (b); we have to refer to clauses 3 and 8 of the April-agreement, operating company to be called "The in the interests of nominal capital of $10,000,000; and clause decency nod fair-play.". In these same directed the equal division of this "B" interests the Canton Information Bureau capital into "A"

shares and is forced to join issue with the special shares The "A" shares were to bo who contributed the allotted by the British. Directors of the article to the Loudon weekly, regarding Company in such manner as they might correspondent,

pursuance of an agree his views as to the validity of the Con- decide cession and its scope and operation. We ment previously to be entered into with That is to say, the fear, however, that our analysis of the the. Syndiente." documents will show that the Concession Syndicate could, call for an allotment was obtained by means which ought never of so inany fally paid "A" shares as the to have been used. But we would like price for the transfer of the Concession to believe that the gravest of these to the Company. And if the number of such fully paid "A" shares left the means was never consciously present in the mind of the firms and companies who Company with insuficient ensh capital constitute the Cassel Syndicate and for operation, the Company would have whose names-the Special Correspondent to raise more working capital by a de assures us, and we have no reason to benture issue. In other words. the pro doubt the fact-have stood in China for moters of the deal would be free to put fifty years and more for straightforward up as little money as possible while drawing as much dividend as possible. It is not suggested that they would have trado.

done so. We merely indicate one of the mary implications of the April-agree-

TUS QUESTION OF VALIDITY.

24

THE PRICE OF THE CONCESSION..

ment.

B" SHARES.

any

The Special Correspondent affirms the that a contract can only be made with validity of the Conswision on the ground We the Ins and not with the Outs."

The actual words of the same clause 6 Ins and, as the new Government, are must be quoted regarding the disposal agree. But when the Outs become the

of the "B" shares the other half of asked to recognise the validity of a transaction concluded by the old Gorsuch shares shall be classed as B ernment, it is at once a right and shares and shall be considered as fully- new, Government to paid up shares and shall be allotted by a duty of the determine the validity of such the Directors of the Company, who, gre when it involves of Chinear Nationality in such manner transaction, more so the inheritance of burdens which work as they may decide (subject to the provi

Clause 8 against public policy. This is precisely sions of clause 8 Eereof)." what this Government has done in the directed the allotment of $1,000,000 case of the Cassel Concession. It has worth of "B" shares to the Kwangtung inquired into the validity of the deal and Government, 8500,000 worth to Trustees found that the same had been negotiated for the poor people in the province and in circumstances which deprived it of all 8500.000 worth to other Trustees for validity and force. And, accordingly, educational purposes in the province, the Concession has been declared all leaving 83,000,000 worth of B shares und void.

at the disposal of the Chinese Directors What were these circumstances? It who were to be elected by the holders of must be noted there are two documents.B shares. These electors of the first in the ease. The first is an agreement batch of Chinese Directors, were to be dated in April, 1920, and the other at the Kwangtung Government, the agreement made in August of the same Kwangsi leaders at Canton, and the year. The first was made with the then Trustees for the Poor and for Educa filitary Governor of Kwangtung, who tional purposes who, under clause 8, legally has nothing to do with civil were to be nominated by the Kwang- matters, and was signed by him and by tung Government" aforesaid. In other shares were to be allotted one Chang Chia-fang: The latter pur words and in effect, these 83,000,000 ported to act as Civil Governor of the pro-worth of "B vince but be had not been appointed by in such manner as the Kwangsi leaders' pursue It would be anti-climax to time, was exercising" the functions of a the Military Government which, at the night decide.

One more Central Government vis-a-vis the pro- further this clause-to-clause examina

The vince; nor was he even appointed by the tion of the Concession. in as a seal-keeper" by the Military Concession did not exclude as errone- Peking Government. He was simply put point, however, must be noted. Governor who had ejected the regularly ously stated by the Special Correspond- The August agreement described us sup-31 coal mines for which mining appointed Civil Governor out of office ent in the London and trina ExpreRK plementary to the April-agreement, was rights have been granted and on which nisa signed by the same Military Goverwork has commenced, also even coal nor and by another official, tamed Yang mines for which mining rights have been Yang-tai, who had been illegally ap granted but on which work has not com- TAK00.-B.. Wallace (1), J. Russell (2), pointed by a minority of the Adminis menced." Clause 17 of the April-agree Neil Drummond (3), McLachlin, (skip). trative Directors of the Military Government specifically provided tha

After the game, Mr. Hammond conment. In point of fact, therefore, both concessions or mining rights within the gratulated the visitors on the fine game these agreements were made with said districts already granted by, the they had played and the Shanghai skip, governing body that was illegally con Kwangtung Government which have not in response, said the team thought the stituted and, at the date of the August yet been worked on a commercial basis hostile operations against the new Kwangturg Government; and all such Taikoo ground was the best they had agreement, was actually engaged in or exercised; shall be revoked by the Government which has since been asked concessiors or mining rights as have been ever played on.

Indeed worked on a commercial basis, or exer to assent to the Concession." this August-agreement was made in order cised, may be acquired by the said Com to secure 8100,000 to replenish the pany on payment to the proprietors accept; the Kwangtung Government will Kwangsi war-fund for operations against thereof such sums as they may agree to the forces of the new Government.

render all such assistance on it is able to A "clause-to-clause examination" of render the said Company to acquire such Agreements will make clearer the in concessions or mining rights at a reusin validity of the Concession.

We take it that, with Kwangtung

"assistance attention to the clauses dealing with

They the Kwangsi militarists, what may be defined as the consideration Government" consisting of people like are clauses 2, 3, 4, 5 and 6 of the April would mean "expropriation "it not a for the grunt of the Concession. agreement and clause 1 of the August more drastic proceeding-in the case of " reasonable price" by stituted եռ agreement whereby the imposition of a agreement. In effect these clauses con- a mine owner who dared to dispute the Syndicate in consideranon of the Kwanga Compaay in which they were interested the extent of precisely half its si military leaders granting the Conces to sion, agreed (a) to lend the "Kwangi nominal capital. We say advisedly half militarists a sum of $1,000,000 at 8 per of the nominal capital of the Company, cent. interest, payable as to both in- because the provision for the Poor terest and principal with and out of the People" and for "Educational Pur dividends to accrue in respect of a poses", could not be taken seriously, million-dollar worth of "B shares, to seeing that the Trustees for these denerv be allotted to the Kwangtung Governing objects. were to be nominated by ment," and (b) to allot to the nominees the Kwangtung Government. It strikes of the Kwangai leaders another block of one more like a derisive gesture.

We have to make two more observa- three-million dollars worth of "B"

wish it distinctly to be shares. There would be nothing to contions. We demn if it had been intended that this understood that, while this analysis of large allotment of "B" shares should the documents in the case discloses a ensure to the interest and, benefit of the method of bargaining which morally province. But destined as the allotinent vitiates the entire transaction, we are was for the interest and benefit of the disinclined even to suggest that the personal nominees of the Kwangxi -mili- parties constituting the Byndicate were The local Ordinance, Mr. Jenkin urged, was intended to apply to domestic dwel in the English Act, which used the expres tarists, the transaction now bears a very consciously aware of the real meaning of clause 3 of the April-agreement when lings, solely, and the whole of Mr. sion dwelling house was invented by ugly look We say no more." Alabaster's, argument had considered the the local legislature which tried to find We must justify this grave view of the construed in relation to the rest of the alternative premises entirely as a shop.

a word that could cover the case of all transaction. First as to (a). Clause document. Our Goal remark is this: It! The evidence showed, Mr. Jenkin main-

Chinese businesses here, where the ground of the April-agreement provided that the is admitted that the relations between Syndicate was to obtain the official this Government and the Hongkong tained, that, as a residence, the alterna

floor, was a shop and the upper part was tive accommodation was equivalent in

used as a residence, generally by the sanction and approval" of Peking to authorities have not been satisfactory every respect. The only argument put employer of the shop. "There is no the Agreement, which was then to be since the winter of last year, when Pre- forward in support of the contention that glamour of domesticity cast over this ratified by the Kwangtung Government, sident Sun and these serving with him the premises were not equivalent was that Ordinance, at all," said Mr. Alabaster and immediately thereupon the Syndi began the work of raling China in the they were not equivalent for business pur- (this with reference to an observation by Lente shall, deposit with the Kwangtung sense contemplated by the founders of the poass. It such considerations were to Mr. Jenkin, at the original trial, that Government, the sum of one hundred Chinese Republie in 1912. It cannot be weigh with the judge it would restrict" an air of domesticity pervaded the thousand dollars Hongkong currency doubted that one, if not the chief, factor the possibility of ever being able to prove measure.") Mr. Alabaster said the Note the word deposit The same of disturbance in the relations between that alternativa Lccommodation was Ordinance covered every Chinese shop, idea was sought to be emphasised in Canton and Hongkong has been the equivalent, because tenants would be able and from this be argued that questions clause 4, which provided that in the event Cassel Concession. While the prepara- to, furnlab all sorts of fimsy pretexts for of suitability, from a business point of of the Syndicate floating a Company to tion of this statement has not been a showing that it was not

views, had to be coosidered by the Court develop the Concession a further sum pleasant task, it will have served a desir Mr. Jenkin also discussed the evidence when it decided whether proposed alterns of nine hundred thousand dollars (makable purpose if the respectable firms and companies, asociated with the Gassel of the other side, at some length, in order tire premises were "reasonably equi- ing with the said sum of one hundred to show that the Puiane Judge was onvalent in all respecte."

thousand dollars) shall be deposited: Syndicate will now realise that the Con- titled to regard it with suspicion.

The Court reserved judgment,

with the Kwangtung Govern cession must go if their names aro to - Mr. Jenkit mentioned that he had put ment, as security for the due carrying continue so stand for the moral qualities forward motion to produce fresh evi-out by the Company of its objects: on which as founded the traditional Mr. Alabaster, replying for the appel-dence, and inquired as to his position in sat out in the memorandam and, articles greatness of England's commerce in later said the other side was driven to that matter;"

of association, That this alleged de China. And with the closing of this the desperate expedjent of trying to show The Acting Chief Justice said that if posit of $1,000,000 was actually intended very unfortunate episode, we may add that only the domestic equivalent not the case went in Mr. Jenkin's favour the as a loan is made plain by clause which that there is no reason known to us the commercial equivalent could be con-

evidence would not be required; if the provided for the payment of interest which can prevent British. capital being aldered. The local Ordinazee was passed contrary the evidence could be considered thereonate the rate of 0 per cont per made available, at a suitable moment in ume well to the sum itself out of the near future for the bona fide expressly to include shops, provided, cha

Latez master or his fokus lived there. The

the dividends' to accrue in respect of the economic development of the mineral-16- term Domestic tenement," term not

million-dollar worth of "B" shares to source of a province whose prosperity

the allotted to.

Kwangtung a means the prosperity of Hongkong. (Continued as foot of next column.)

"The Wilts met the R.G.A. at V.R.C., yesterday, in their return match. The game lacked combination The Acting Chief Justice Did not accuracy, several of the players getting. you, the defendants, tender these premises excited and the play being very scrap to the plaintiffs, thereby holding them as as the result.

The Wilts were the first to score, reasonably fit for that sort of business?

Mr. Alabaster The premises were through Le Hurey, following a scramble offered by the defendants with the idea in the goal-mouth Wood equalized for that they might suit the plaintiffs-not the R.GIA. from a mix up near the Wilts that they would suit them. They thought goal. the cheaper rent' might attract them. T submit the only inference to be drawn was that nobody wanted to go there.

CASE FOR THE RESPONDENTS.

Mr. Jenkin contended that the judg ment was right on the first point for the reason that the judge, in fading that the alternative premises were reasonably equivalent, had properly appreciated the intention of the legislature in passing this Ordinance, and the decisions of the boine Courts, in so far as they were a guide to the manner in which this Ordin. ance should be interprated. This Ordin- ance obviously and most clearly dealt entirely with human habitation and with It premises required for that purpose." was not concerned in any sense with business premises.

A REJOINDER.

In the second half, McDade (2) and Wood scored for the Artillery, and Le Hurey scored for the Wilts from a penalty throw: The R.G.A., thus, won by 4 goals to 2.

Games for Monday:-

3.15 p.m.-V.R.C. v. Club Lusitano. 5.45 p.m.-R.G.A. v. United Athletic.

TABLE LEAGUE,

T W. L. POINTS.

CLUB.

V.R.C. 'U.A.C.

0 9

18

0 7

2

14

Lusitano R.G.A. Wilts.

9

A

14

9

3

4

10

9

7

4

Tamar Forglove

8

£

"

די

Mr. Alabaster After argument se to its admisability 1

3 His Honour!" Certain}

the

|-·be:

We directable price.

"

LANE, CRAWFORD & CO.

Takmore

Bmats for Men

SIZES,

BOX

WE HAVE JUST RECEIVED

A SMART

SELECTION

OF OAKMORE, THE ALL-

ENGLISH,

BOOT AND

SHOE,

IN ALL SHAPES AND

BLACK

CALF

si

OR

PRICES

FROM

00

$20._

$30.00

AND

GLACE

BROWN

KID.

WE SPECIALIZE IN MC'AFEE'S RUBBER STUDDED GOLF SHOE AS WORN BY-

GEORGE

DUNCAN, GOLF

CHAMPION OF THE WORLD.

WE ALSO SPECIALIZE". IN DRESS SHOES AND PATENT PUMPS.

LANE, CRAWFORD & CO.,

DOBBIE MCINNES LIMITED.

ENGINE INDICATORS

EXTERNAL PRESSURE SPRING TYPE DESIGN NOT

Recommended for

High Speeds and Pressures

and

For use with Superheated Steam

For all purposes where highest accuracy is required. SOLE AGENTS,

LANE, CRAWFORD & CO.

Tel. 1741.

NEW

HONGKONG

STOCK

OF

STRINGS

FOR

VIOLIN

'CELLO

AT.

DOUBLE BASS

ANDERSON'S

Powell

Wim

TELEPHONE 3146,

NEW STOCK

¡OF

FELT HATS

MADE BY

wwwwww:01

Messrs. GLYN & Co.

Just Unplakod.

These Include the Latest: Londor Styles in Gentlemen's soft Felts,

Popular Valour

colourings,

الم

по Caps

the newest

the

PRICES ARE SLIGHTLY LOWER,