1930-03-25 — Page 7

PO HING THEATRE LEASE DISPUTE

FINDINGS OF THE COURT REGISTRAR QUERIED.

APPEAL JUDGES HOLD SOME ITEMS TO BE WRONG.

FULL COURT JUDGMENT.

The Full Court of Appeal at which. Sir Henry Gollan pre aided, with. Sir Peter, Grap and Mr. Justice Wood, delivered judgment yesterday in the Po Hing Theatre enso.

An action was originally brought by Chan Wai, landlord of the Theatre, against M'a Tau Nant, the lessee of the premises, for recovery of certain money due under the "lease. Judgment was entered against the defendant, and is was left to the Registrar to assess the amount of messe profits and damages suffered by plaintiff.

On the hearing of the appeal Mr. F. C.. Jenkin appeared for for the defendant-appellant, and Mr. H, G. Sheldon was for the plaintiff-respondent. The grounds for appeal were that the Re- gistrar had certified and directed judgment to be entered upon questions beyond the limits of the Court's order.

In giving judgment, the findings of the Registrar were reversed in respect of certain items, and defendant was allowed the coats of the appeal.

The Chief Justice said-

By the writ of summons in this action dated June 12, 1920, the plaintiff · claimed:-

(a)-To recover possession of the Po Hing Theatre, Nathan. Road, Yuumati;

(b.)-An account of rent in

arrears:

X

February 5, 1929, and August 23, 1929, when the premises were meat ant did not contest this item he ed by the defendant. The defend fore the Registra: nor does he dis- puts it now.

Item 2-This is claim for 82.855.17 for the rent of seats, fittings and furniture in the Po

A

As a matter of fact there was an

THE HONG KONG DAILY PRESS, TUESDAY, MARCH 25, 1930.

| THE OVERLOADING

MENACE.

DONE PERSISTENTLY ON YUE LOUNG,

MAXIMUM PENALTY ON RUSSIAN SKIPPER.

Capt. Sokolaff, master of the 8.5. Yus Loong, was fined 8300 by the Marine Magistrate yesterday for allowing his vessel to be overloaded at 4.10 p.m. on Sunday.

MORTGAGE OF A PROPERTY."

י

ALLEGED · WRONGFUL ACT BY A SON.

·FATHER AS PLAINTIFF IN

COURT ACTION,

An action in which the plaintiff's son is cited as the second defendant was commenced in the Supreme Court yesterday before the Chief Justice (Sir Heary Gollan). Plain- till was Li Po Kwai, alias Lí Kan, and the defendants were Tsang Chuen and Li Nga Ching."

STRAITS J.P. IN COURT.

CHINESE REVENUE MEN,

CROSS-EXAMINED.

“EXEMPTION CARD” AND SUSPICIOUS' OFFICERS.

The bearing of the case against a Chinese named Mui Kwok Leung, a Justice of Peace of Singapore, was continued at Central Magis- traer yesterday.

Defendant pleaded Not Guilty... In the witness box, Mr. A. G. Cooke of the Harbour Office, said that at 4.10 p.m. on the day in question, he noticed the. a. Yue Loeng was very low in the water. He boarded the reased but was told. C. Jenkin, instructed by Messrs.opiunt. It was alleged at the pre-

that the master had gone ashore. Ha examined the ship, and found that she had a draft of 18-fect 3 inebes forward and 21 feet 6 inches aft which meant that she was over- loaded by 12 inches.

This evidence was corroborated by Mr. D. G. Cairns, also of the Harbour Office.

|

Mr. Eldon Potter, K.C., and Mr.

Hastings. Dennys and Bowley, ap- peared for the plaintiff. · Mr. C, G. Alabaster, K.C, instructed by Mr. F. X. d'Alunda, appeared for the first defendant. The writ of sum mony had not been served on the second defendant; his whereabouts not being known.

The defendant, it will be recalled was arrested near the Po Tak Wharf after a search of his luggage had revealed large quantities of

vious hearing that the defendant' when challenged, had produced" a card given him by the Hon. Dr. R. which, by special arrangement with H. Kotowall about six months ago, the authorities, entitled the defen dant to exemption from search for one trip to Canton.

defence.

"Chinese Revenue Officer No. 9, heart, was subjected to a search- who gave evidence at the former cross-examination by Mr. Strel- lett yesterday...

In the course of his answers to Mr. Stellett, witness said that de- fendant produced an envelope from

claimed was a search exemption Mr. Strellett: What did you say to that I saw that it contained aglish writing and I said to him, Search exemption permits bear the man's photo, with the Govern- ment stamp,"

Plaintif claimed (a) a declara- tion that he is entitled to equity. D. L. Strellett was for the Mr. J. D. Lloyd prosecuted and The Captain's Story.

as against the defendants to two Capt. Sokolaff said that he had pieces of land, knowe za Section: been master of the Yue Loong for of Section A of Marine Lot No: he had called, at severnl Chiness No. 63A, from the first defen seven months, and during that time 53 and Section L of Marine Lot and French ports. He had, bow-dant's mortgagre, on an undivided ever, never been to Hong Kong emoiety thereof; (b) For an asaign fore. He told the owners of the ment of the said moiety; (c) Fur- vessel on several occasions that ther or other relief; and (d) costs. ho ought not to carry too | Hing Theatre between June 7, 1929, mach cargo, as it was danger-tiff declared that he was the Crown his pocket which the latter had

In his statement of claim, plain. (.)-Mesne profits;

the date of the determination of dus, hut they paid no (d)-For brench of covenant the lease of February 5, 1929, and tion to him whatever. It was the

atten- lessee of the property and the build- not to make material alterations obtained possession of the premises, vasel to 19 feet 10 inches or 20 feet 1917, plaintiff under the pame of Li

ings thereon known as 18 and 20.Paper. August 23, 1029, when the plaintiffsual thing for hiu to load hisWing ut Street. On March 9. in or addition to the premises." By his statement of claim he agreement between the plaintiff forward, and about 911 feet aftung alias Li Po Kwai, executed alleged that by a louse dated Feb the defendant, dated October Continuing, the master said that a deed of assignment of the said

uary 5, 1920, the plaintiff let to 1998, for the hire by the latter of the disc of the vessel was usually the defendant the Po Hing Theatre, all tables, chairs, fittings, fixtures,

submerged some 12 inches. Nathan Road, for a term of three furniture, and sundry articles on the defendant was convicted on his own His Worship than said that the Chinese years from February 24, premises of the Po Hing Theatre evidence. He said that he wished 102, at monthly rent of $1,000 for a term of three years from the to impress upon Capt. Sokolaff that payable in advance and that the date of the issue of licence to Hong Kong was a British port, and defendant had covenanted,

li, not to make or allow to be ther provided for the payment of He concluded by saying that from inter the theatre. This agreement fur the regulations must be observed, made any material alterations ör additions to the premises without though it does not appear expressly that the shin was overloaded de- arent $1,000 for these fittings, the master's evidence, one gathered the consent in writing of the plain to state whether the rent is pay liberately. There had been a lot tiff, and not to do or suffer any-able monthly or otherwise; but in of this lately and he was determin thing whereby the licence of the arguing as to the validity of theed to put a stop to it. theatre might be forfeited or sus claim in Item, the parties appear- pended; and there was a provisc for ed to treat this rent as payable

Defendant was fined as stated re-entry in case of default in the monthly. performance of any covenant to be? rerformed by the defendant.

alove.

lands and buildings to himself un- der the name of Li Kan, and also

tenants. the second defendant as joint-versation took place 1-It did take" I put it to you that. no such cos-

been made in consideration of the

The assignment purported to have place. payment of $16,000 to the plaintif tion-in-chief you said that the de

Mr. Lindsell: In your examina-.

as assigner.

fendant claimed the card which he The son of the plaintiff, however, produced gave him exemption from ledge of the assignment later, and card and letter --He did not claim possessed himself with the know-earch. Did he claim that for both on March 7, 1020, he wrongfully that the card gave him exemption. mortgaged or purported to mort-

Mr. Lindsell: Last time you said gage one equal undivided moiety he did. You must be more careful of and in the same lands and build-in the future. ings to the first defendant to secure the sum of $23,000.

Whose Baggage?

evidence stated that he was on duty Another Revenue Officer giving in Connaught Road at shout 7 a.m. on March 1. He was in uniform at the time and he saw some leather cases and other luggage on the wharf. He did not see it arrive so this Open it for examination." he called out Whose baggage is The defendant said, "It is mine," and produced from his pocket an envelope with English writing, and n visiting card which also bore English characters. He showed the card to witness, claiming that it was a search exemption and adding that it was signed and given him by a J.P", which gave him free- dom from search.

Mr. Jenkin argued that this claim

First defendant denied that the does not come within the terms of $7,500 with the plaintiff to be heid It is also alleged that on January the order of August 93, 1920, and by the latter as security for the second defendant was not made 1999, & Hicence to use the that it represents neither mesne due payment of rent, and the per- aware of the assignment at the time theatre was granted by the Captain profits nor damages, in respect of formance of the lessee's covenants of execution. He further averted Superintendent of Police on certain anything arising under the lease of and was to be repaid to the dethat be had paid the money for the specified conditions which were February 6, 1999. He does not deny fendant on the determination of the mortgage to the second defendant. known to the defendant and that that the agreement of October 5, lease, after deducting any auma due and that the second defendant had in breach of the covenants above 1998, was subsisting at all mate for rent in arrear or in respect of beneficial interests in the lands and mentioned the defendant had made rial times or certain alterations and additions to might be entitled to recover this any of the covenants in the lease.

that the plaintiff damages for the non-performance of buildings by virtue of the assign

First defendant further the premises whereby the

averred that the second defendant Baid amount of $9,636.17 in a properly In the statement of defenco no licence had become liable to suspen-constituted action, but he contends claira was made for the return of was not the son of the plaintiff. sion or forfeiture.

Plainti's Position in Life. On May 28, 1920, the plaintiff that this sum cannot be held to be this sum of $7,500 or the balance

either mesne profits or damages thereof. There seems alan to bave After alleges that he gave the defendant within the terma of the order of been a difference between the phir points of law by Mr. Potter, the a lengthy argument on written notice to remedy the breaches, bus, the latter having failAugust 23, 1929. I agree with Mr. tiff and defendant as to whether plaintif was put through his ex- ed to do an, the former gave notice Jenkin's argument. The agreement the whole of this 87,500 had been amination-in-chief by Mr. Jenkin. of October 3, 1928, is altogether in-paid in cash, or whether it had determining the lease on June 8, dependent of the lease of February been paid as to $8,000 in cash and stated that he was a Justice of the The plaintiff, Mr. Li Po Kwai,

Witncas replied that he could not 1929, and claimed:

5, 1929, and I do not see how, in na to $2,500 by a promissory note, Peace, a member of the Executive read English and pointed out that (a)-Possession of the theatre, an action to recover possession of The defendant objected to this Committee of the Chinese Chamber a proper search exemption was not and premises;

premises for breaches of covenant question being gone into but the of Commerce, of which at one time like that. It should bear the pho (b)-Damages for the said appearing in the lease and mesne Registrar dealt with it in spite of he was chairman. He was also a tograph of the person.

Witness breaches of covenanty

profits, the hire of fittings covered the objection and found that 85.000 permanent adviser to the Tung insisted on defendant.opening the (e)-Mesne profits from June 8, by a separate agreement can be had been paid in cash and $2,500 Wah Hospital and on the perman-baggage and the latter said that 1920, until delivery of possession.

recovered either as meane profits or by means of a promissory note. eat committee of the Po Leung if he refused to give him

face, " damages.

Here again I think that the Regis, Kuk. For over 30 years he had he would ring up Dr. Kotewall and Statement of Defence.

trar exceeded his jurisdiction and been managing director of the Po ask him to come personally. went into the whole of the accounts Hing Tai rice business im Wing between the plaintiff and the de Lok Street. fondant. In my opinion, the de- fendant was entitled to object to this extension of the enquiry and the Registrar should have confined himself to dealing with the matters referred to him.

been held

The Registrar in Error,

to

No Need for Ro-hearing.

Plaintif continued that the second defendant was his secund aon. On behalf of this son and the

eldest con, plaintiff made them pro- prietors of a pawn shop which he purchased for them. A third son, a graduate of the Hong Kong Mr. Jenkin, who appeared for the University, was now on the way defendant submitted that the whole from England after complet ing his studies, and the fourth and question should be sent back to the last son was with plaintiff in the Registrar with the necessary dirve

tice business.

Witness agreed to ring up Dr. Kotewall and defendant then went to the telephone accompanied by another Chinese Revenue Officer, who told the defendant to open two or three of the articles for his ins pection, but he replied that he had not got the keys. Some of the articles, he added, had been en- trusted to him by a friend named Lum.

The hearing was adjourned until Thursday.

AN AMAH AND A RING.

ONLY WORN "GOING OUT AT NIGHT!"

By his statement of defence the

I am of opinion, therefore, that defendant denied or excused most of the allegations contained in the the Registrar was wrong in includ statement of claim, but I need not ing in his finding the eum mention- go into the statement of defence in Item 2. as mesne profits or ', because on August 20, 1029, damages recoverable by the plain

zummons was taken out by the tiff in these proceedings." plaintiff for "Judgment by consent

Item 3-This is a claim in res in the terms of the endorsement of peet of the costs to which the plain- the writ of summons in this ac. tiff was put in defending certain tion." This summons was endorsed proceedings brought by the Police by the solicitors for the plaintiffs for breaches of the conditions of as consenting and when, the sum the licence of the theatre com- mons came on for hearing before mitted, presumably, by the defend- me on August 23, 1929, I made an ant, and of two fines which the tions for further consideration, But

Speaking of the assignment which, for such it appears to me that there is no formed the subject of the action. order, by consent, which was drawri plaintiff had pay

need for this to be done. The up and entered in the following broaches. terms: It is ordered that the I certainly do not see how these question as to which of the items witness said that he made two other plaintiff is entitled to judgment for Payments by the plaintiff can be re- with which I have dealt come within ignments of his property as be the recovery of the premises in the garded as mesne profits: they might the terms of the order of Augustween himself and his third and fourth sons.. All these assignments endorsement of the writ of summons possibly be recoverable as special 23, 1029, is one of law, and there

were made the same day through - herein mentioned, an enquiry by the damage arising from the breach of is no dispute as to the amount of Messrs. Lo and Lo. The idea was Registrar as to meene profta and the covenants in the lease of any of the items which I consider to mark out the properties so that

An amah employed by Mra, Am- Granville damages and costs to be taxed." February 5, 1920, above referred to to be within the full scope of that in case of his death the sons might load, Kowloon, appeared before

mona Hemara, of 7, In my opinion, it is under the but they should have been specially order. In my opinion, therefore, succeed to the properties, provided Mr. Whyte-Smith yesterday on a terms of this order of August 23, referred to as such. I do not think judgment ought to be entered for they behaved themselves properly charge of stealing a gold finger 1920, that the enquiry would have the Registrar was justified in de- the plaintiff in respect of Items 1. during his lifetime. Otherwise he ring during the past three months. ciding Item 3 in favour of the plain 5, 7, and 8, which amount to considered he was entitled to cancel The premises were vacated by the tiff.

She was alternatively charged with 83,003.17 and the judgment and the assignments. In each case, wit receiving stolen property. defendant on August 23, 1920, and Item 4-This relates to a late findings of the Registrar should be ness averred, no money passed, and the Registrar held an enquiry and performances licence fee. The plain reversed except as regards these the assignments were made without was last seen on January 1, and Evidence was given that the ring found that the sum of $1,335.27 was tiff has paid the full fee and claims itemA. due to the plaintiff by the defenda proportion of it from the defend-

when defendant was seen wearing Section 354 of the Code of Civil the knowledge of the sons. On ant as damages and mesne proste. ant. Here again the claim is not Procedure is the section under October 11, 1927, he leased the pro-it last Saturday she was given into Attached to his finding, which is one which, in my opinion, can be which references to the Registrar perty concerned in the action for a custody. She claimed that the ring dated September 7, 1920, is a state considered under the order of are made in cases like the present. period of five Chinese years, wit was hers and called another servant

Mr. Sheldon argued that sections that of his second son...

ness signing his own "ment showing the items under which August 23, 1920.

name and of the house to say that she bought Item 5. This is admitted by the 874 to 680 of the Code applied and

in last September, and she only this total is reached.

wore it when she went out at nights. .There

Cross-Examination Queries. tre ten items in the defendant's counsel to be recover- that the proper procedure would statement as well as

She was discharged. a finding able...

Have been for the plaintiff to apply

In cross-examination, Mr. Alabas with regard to a deposit made with Item 6-This item refers to wages under section 679 to vary or dis ter suggested that Li Hung Cheong, the plaintiff by the defendant, and paid by the plaintiff to a police charge the Endings of the Registrar. aliai Li Po Kwai, assigned the pro- the defendant appeals against such guard. I do not see how this claim But in my opinion, sections 674 to perty to Li Kam and Li Nga Ching. Aaswering other questions, wit last mentioned finding and against can be considered either as meaue 680 do not apply to cases like the He asked witness whether it did ness said that he instructed the most of the items on the ground profits or as damages for breach present; the provisions of these not appear from this that a man solicitors to enter $10,000 as the that the Registrar has entered upon of the covenants sued in on this sections deal with matters in cham with an aliae had transferred the purchase price in the assignment, questions beyond the limits of the action.

bers referred to the Registrar for property to two others.

but no money passed. Further the authority conferred on him by the Items 7 and 8.-These were ad report and not to findings in an Witness replied that he did not assignments were not of any use," terms of the order of August 23, mitted to be recoverable at the enquiry into damages on which want it to appear so, nor was it except as marking out the proper 1929, above referred to

caring before the Registrar. judgment may be entered as on the his intention to transfer the pro-ties according to Chinese custom. It now becomes necessary to con Items 9 and 10.-These relate to 1 Endings of a jury?"

A perty to two others.

The Chief Justice 1. Why did you' sider the items in the statement, claims for the rent of a telephone As regards costs, I think that the Mr. Alabaster! If you wished it mention this sum of 810,000 7 except in so far na any of them and for amounts due for the supply plaintiff should have the costs of to be shown that you were not Because at the time of the division are admitted by the defendant to of gas and electric current supplied the enquiry before the Registrar, transferring the property to two of the property by my father this be rightly found against him. to the theatre. I do not think they except in so far as they have been other people, you could have also sum was LSScased as the "value" of Item 1.-This is a sum of 32,655.17 can be recovered under the terms increased by the consideration of added the alina Li Kan after your the property. This was in 1912, for mesne profits due in respect of of the order of August 23, 1990. the items which do not fall within other, name? I do understand the five years before, the assignment was the rental value of the promises Under the lease of February, the terms of the order of August laws as regards assignments. I did | made between June 7, 1920, the dates of 1929, defendant deposited a sum of 23, 1920 The defendant should not know I should have done so. At this stage the Court, adjourn the determination of the lease of (Continued an next Column) have the costs of this appeal. (Continued at foot of next column), ed until this morning.

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