1931-02-05 — Page 7

HONG KONG DAILY PRESS. THURSDAY, FEBRUARY 5, 1931.

FREEDOM OF THE PRESS REGULATIONS BINDING.

MAGISTRATE DEALS WITH LEGAL

SUBMISSIONS.

DECISION IN PRESS CENSORSHIP CASE.

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At Central Magistracy, yesterday, Mr. Lindell gave his opinion on the legal points raised by Mr. F. H. Loseby in the caso in which the editors, printers and publishers of several Chi- nese newspapers were summoned for publishing certain articles an January 18 without first submitting them to the consor.

CASE MUST GO ON."

Mr. Lindsell said:-

The two points I have to decide

in this cas

cash are (1) whether or no

the Emergency Bogulations Ordin- ance of 1929 is ultra vires the Con- stitution of this Colony, and (2) if that Ordinance is intra vires, whether or no the regulations made thorounder in 1925 by the Governor-in-Council for tho censor- ship of the Press are ultra vires the Ordinance.

To take the Ordinance first it is Jaid down that "the Governor may, by and with the advice of the Legislative Council, mako, laws for the pesce, order and good govern- ment of the Colony"; Articla X. empowers the Governor in his dis- cretion, but subject to any instruc tions issued to him under the Sign Manual otc., to give his assent to Any Bill passed by the Legislative Council; and finally Article XII. provides that in the making of any laws the Governor and Legislativo Council shall conform to and ob serve all rules, regulations and directions in that behalf contained in any instructions, issued under the Sign Manual and Signet.

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later (p. 54)-"The obvious pur- poso and meaning of the Statute, was to preserve the right of the Imperial Legislature to legislato evon for the Colony, although a local legislature had been given, and to make it impossible when. An Imperial Statute has been passed expressly for the purpose. of governning that Colony for the Colonial legislature in that sense to enact anything repugnant to an express law. applied to that Colony by the Imperial Legisla ture itself. That is the meaning

of those words."

I can find no Act of Parliament forbidding censership of the Press. Cr. VI. Halsbury p. 310, para. 481:

Hence the Newspaper Regulations aro primo faciz binding. The only linos left to the dafonco on "which to attack them are: ITEM

(1) that although such regula tions can only be made " on an ocansion which the Governor in Council considers to be an occa sion of amerganer 'ar publia"dan-, gor," neither these regulations nor any others purporting to hayo boon mndo under the, Ordinance contain anything to show that any such stato of emergency existed when they were made.

I can find no force in this con- tention, but hold contra that in such a case a presumption arises that the regulations were made in Recordance with the provisions of the enabling Ordinance.

IG.P.'S THREAT TO QUEEN'S THEATRE.

SEQUEL TO ALTERATIONS,

DANGER TO PUBLIC STRESSED BY P.W.D.

1220

"PIDGIN" CARGO..

EUROPEAN MASTER SUMMONED

DUTIABLE LIQUOR ON S.S, ON LEE.

Mr. Ma Tsui Chiu, registered

Captain J. Bousfield, master of the ss. On Lee, mis yesterday sum- owner of the Queen's Theatre, and Mr. C. S. Rosselet, secretary of moned before Mr. R. E. Lindsell the Hong Kong Amusements, Ltd., at the Central Magistravy for hav- were summoned yesterday" boforsing failed, on January 23, to sup Mr. R. E. Lindsell for making cer- ply the Superintendent of Importe tais alterations in the Queen's and Exports with a complete state- Theatre without the permission of ment of all dutiable liquors im- the Building Authority.

ported on his ship on the previous day.

Mr. J. Bottomley represented the (2) The second line of attack is Building Authority and Mr. W. J. this: Allowing that the regula- tions were duly passed to meet an Armstrong, of Messrs. Deacons, re- endrgency, yet it is clear from presented the defendants. Tho the repeal of the more draatio of

Har Inspector General of Police, them that that emergency bas passed, and therefore it is a gross Mr. E. D. C.. Wolfe, was also in abuse of its powers by the Execu-Court. tive to continue to maintain the Press Censorshifp.

The answer to this contention seems to be; who but the Governor in Executive Council is the judge as to whether the emergency in poat? The worst of it may be over, Again there seems to ma to arise and yet bomo danger still remain. the presumption that inasmuch as these particular regulations have not beon ropealed, as they could have been under Section 2, sub-sec. of emergency in which they must tion 3, of the Ordinance, the stato have been made has not wholly pass- ed away.

On all points the defence fails

case must go on.

"Apart, from the general pro- visions ensuring the peaceful en joyment of rights of property and the freedom of the subject from illegal detention, duress, punish- ment, or taxation, contained in and the the four great charters or statutes (Le Magna Carta, the Petition of Right, the Bill of Rights and the Act of Bettlement) which ro gulate the relations between the Crown and people, the liberties of the subject are not expressly defined in any law or code." Hença I can see no repugnaney to any law of England in a local Chinese Ordinance that makes pro- vision for the establishment of a Press censorship. Pro tanto at any rate such an Ordinance will be valid.,

Late telegrams could be and had for consorship frequently been sent to his house

Mr. Armstrong at the outset entered a plea of guilty on behalf of the secretary of the company to a technical offence, and informed the Magistrate that Mr. Bottomley

desirous of pressing the case against was, under the circumstances, not

the owner.

דיי

Defendant: I plead guilty, your Worship.

Mr. R. R. Todd, Assistant Super- intendent of the Imports and Ex- ports Department, who prosented, said that the ship arrived hero on Sunday morning (January, 25), and Revenue Offer Dunlop went on- board and found 24 jars of Chin- so spirits, which on the next-day were found not to be included in the daily statement."

"Pidgin "!

Gargo,

Asked by his Worship if they that the wine was carried as were concealed, Mr. Todd replied

"pidgin" cargo on the deck; it should not have been there. He added that it was not a case of importing the wine wilfully on the master's part, but more à case of neglect to nacertain the exact

out of liquor on board. nothing about the matter till Ro Dafondant said that he know

board the ship and told him. He venue Officer Grimmit came on

added that it was the puraer's duty to take the returns and he (de fendant) signed then.

Describing the facts of the case, Mr. Bottomley said that the sum monses were brought because there were alterations made to the Queen's Theatre without reference to the Building Authority. Mr. Bottomley went on to say that the Case Adjourned.

original operating room in the The first witness called was Mr. theatre was taken exception to by Laut Chi Ping, the Chief Chinese the Building Authority in 1999 and Censor: Ho nid that the censors the company subsequently erected generally finished their work by 1 am. but whenever it was necessary a new oporating room which was to do as the closing hour was ex-absolutely satisfactory and was duly tended by half an hour.

hoproved An inspection of the theatre was made on October 30 last on the renewal of the licence The next witness called produced and the building was considered the register of newspapers. stated that Mr. Wai Kwok Lan, tion was made on January 31 last Ho quite satisfactory. Another inspec. summoned as the editor of the Wah Kiu Yat Pao, was not registered and it was found that alterations I hold therefore that on this bead with the authorities is such at all had taken place and the operating the defence fails.

The summotis against him was no machines had been removed from cordingly withdrawn: ante was adjourned.

The case against the other defend their approved position to their old the wine was actually being moved place and another room for re-wind-by coolies "to a ship alongside. ing films had been constructed at a When the Revenue Officers appear

ed the coolies ran away, Jawer level. The only means of con- nection between the two rooms was by means of a small hole cut into the floor of the room now used as an operating room.

A second line of defence is based

'GOVERNOR'S POWERS. Turning to the Instructions, which bear the same date as the Lettore Patent, 14th February, 1917, the defence has quoted Article on the principle which is part of XXVI, which lays down that the the law of Agency, that delegatus Governor shall not give his assent'

non potest delegate, ie, that an to any Bill affecting inter alia,gont cannot withmut the authority

the currency of the Colony or sub jecting non-Europeans to restric tions which are not imposed on Europeans, and has argued that the Emergency Regulations Ordinance which coufera almost unlimited | powers on the Executive Council fa within the category of auch bills. Further, oron admitting that the Ordinance No. of 1022 may be Bared by the final paragraph of the same article which expressly em-

party any share of his respon- of his principal bestow on a third

aibility. Hence it is argued that the legislature of this Colony, being no more than an agent of the Crown, cannot empower the Exocu- tive Council to make for it regula tions having the force of law which it itself has no right to make.

SHIPPING COMPANY'S

ACTION.

FURTHER EVIDENCE OF A ROWDY MEETING.

.....!

1

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Witnesses called at the Supreme Court yesterday at the continued hearing of the Sze Yap Steamship Company's action all gave evidence TWO ASSUMPTIONS. regarding A disturbance at

the extraordinary meeting of share The argument as it stands can holders held on July 8, and they powers the Governor, when he has hardly be gainsaid, but it is based were agreed that no resolutions on two assumptions, (a) that the' Legislature is

is no more than the original chairman decided to with were put to the meeting before the Crown's agent; and (b) that the powers of legislation given to the draw, followed by a number of his

satisfied himself that urgent neces Bity exists for bringing such a Inw into immediate operation, to assent thereto provided it in not repugnant Executive Council are such as the to the law of England, Mr. Lochy Legislature does not itself possess, both of which are in my opinion

maintains that this last proviso destroys the effect of the saving falso. olause inasmuch as any interference with individual liberty and the freedom of the Press is in fact ro-

But y

MAY

TO

or regulation ninde under authority of such Act of Parliament."

supporters.

the claim is for an injunction to The company is the plaintiff, and restrain defendants from acting as directors and generally, controlling the business.

Mr. Eldon Potter, K.C., instruct ed by Mr. F. X. d'Almada, senior, of Mesars. d'Almads &. Mason, is for plaintiff, while the defence is being conducted by Mr. F. C. Jenkin, instructed by Mr. Leo

'Almada.

Solleitor as Witness.

Danger to the Public,

replying to the Magistrate, said The purser, who was in Court, that the liquor belonged to the

erow.

was quito common: when Ravenue Mr. Todd pointed out that that Officers went on board these stem- ars nobody would come forward. and claim the wine. In this case

His Worship imposed a fine of 850, and ordered the wine to be. confiscated.

ABERDEEN FIRE RECALLED.

LANDLORD FINED.

The rocant firo at Aberdeen,

Mr. Bottomley went on to say that there was no ventilation to the re-winding room except to such to places to which the public had when three two-storyed building part of the theatre which opened arcess, and that it also opened were completely gutted, was recall. directly to the main egress from 9 at the Central Magistracy ye the upper circle. It was consider. terday, when Taung Go-wing, of ed that the danger to the public 28, Nanking Street, was summoned in the case of a fire in the opernt before Mr. R. E. Lindsoll with lay- ing room or re-winding room might ng failed to comply with the re- said ? Bottomley, that the usual new staircases,

Aided with very serious result.quirements of the Building Author- The matter was of such urgency, ity, in regard to the erection of notice was waited in this cate."

Mr. Lindsell: These facts appear to be more than a technical offence

Mr. Armstrong: An inspection of Worship the minor character of the the premises will reveal to your alterations.

Mr. F. C. E. Rendall appeared for the defendant and pleaded guilty.

:

Mr. F. C. Neville, of the P.W.D., in question had been gutted by prosecuting said that the premises

fire in December last, and had been re-instated, and were nearly ready for occupation. At the time of the fire, the staircase had been cut off, and two people were seriously in jured through jumping "from"a window an the second floor. Mr. Neville emphasised the point that staircase had to be protected from fire, as they wore the one means of escape

His Worship imposed a fine of 825. and made an order for the quirements and satisfaction of the stairensen to be rebuilt to the fo

Building Authority within 27 weeks

I hold that the Governor in

The Hon. Mr. Wolfe spoke of the danger to the public Both in the Legislative Council is something

dress circle and in the stalls should pugnant to the Common Law of the ordinary rules of agency.

more than a mere agent bound by

an outbreak of fire occur. He ex- plained that for those in the stalls, It England.

the exits to Queen's Road would so, it would inevitably follow that

hat be available. Those in the In this connection, however, without definito authorisation from an enlisted that the words "the Crown the legislature could not direstor refused to

Tross circle would be oven more Plaintiff's case is that when the badly handicapped. He concluded pugnant to the law of England" empower the executive to make any extraordinary mooting, the dissatis. gerous thing to remove to the eld convene an by saying that it was a most 'dan must

be interpreter in the light of binding regulation whatsoever.

fied shareholders Convenedore those used in Soption of the

room and that the removal was a Moreover, even if the law of taining eight resolutions, but that Mr. Armstrong explained that the

themselves with e requisition con most serious matter, **** Colonial Laws Validity Act, 1865, agency does apply, then the delegathe thairman who was elected at approved position for the operating that is to any "repugnant to the tion. of powers conferred by Ordi- the meeting, Mr. Le Yu Toig, did machine was not suitable for provisions of any Act of Parlia- nance No. 5 of 1022 is perfectly at the resolutions to the meetalkies," and consequently it was ment extending to the Colony to valid inasmuch as it has since beer

ing.

replaced in its old position. In which such (colònia)) law

reply to a remark by the I.G.P. approved by the Crown's expres- Mr. F. X. d'Almada, gr., who is rood enough for hine months, Mr. I can make an order, but I can see late or be repugnant to any ordersion of non-disallowance of that instructing Connsel for the plain-Armstrong pointed out that the thing there for power to close Mr Lindsell; Under section 222 by the effect that it had proved Ordinance, which amounts to autho- tiff gave evidence in the afternoon. standard demanded by the public the premises. Where is your autho risation of the agent actron. Cl. Witness said he was instructed to then was not so high. He assured hity for asking for such an order f Fong Wai Ting and others .prepare a requisition for the meet the Magistrate that the company Attorney General of Hong Kong.ing on July 8 and attended it. He

Mr. Bottomley: I am afraid I H.K. Law Report, 1925

left at 4 p.m. Mr. Brooks leaving

was most anxious to comply with have not considered that point very i With the second assumption a low minutes before witness, was the requirements of the authorities parefully

"Hon. Mr. Wolle: in connection with the theatro's

I think possibly have already dealt in holding that Mr. Leg d'Almada intimated he licence. He pointed out that the Mr. Bottomley has confused it withi the establishment of a Frees con- would remain a little longer. sorshop is pot repugnant to any Witnbis continued this, when be

company was given no opportunity section 45 of the Entertainment There is no doubt that up to Act of Parliament extending to the left, Mr. Li Yu Tong was still in

to abate the nuisance complained Ordinance. The section rends: The the passing of the Colonial Laws Colony, and hence could validly be the chair. A heated argument be

Captain Superintendens of Police Validity Act difficulties had effected in this Colony by Ordinance tween one shareholder and another p

Olosure

of Theatre Arked for, phall; aubject to the approval of the Governor-in-Council, have power arison and it was for the express in special circumstances.

developed to a personal wrangle. purpose of getting rid of the dif- On this head again the defence The chairman was constantly ring Worship wore going to convict, he to cancel any licence without pay Mr. Bottomley said that if his at all times by notice in writing ficulties raised on the subject and fails.

ing the bell to restore order, but would ask in addition to any finement at any compensation, on its pattioniarly in reference, to the I have finally to consider whether the disturbance continued until the his Worship might impose, for an being brought to his notice that any words" repugnancy to the lays the Newspaper, eto." Regulations time witness left, when no resolu- order for the theatre to be closed of the conditions of the licence have of England that the Act was set out on p. 802 of the Regulations ibn had been put to the meeting." until such time as the requirements hot been "complied with." "I am passed, because one of the common of Hong Kong, under the first of In aniwer to Mr. Jenkin, witness of the Building Authorities have bout, to do that," · added" Mr.

Trng wherebysitpick the prescotings have to bend

toy bear con Colonialadegislatures were con brought aron the Ondi baten en party add he led Ludillo cortainly His Worship, said he to stituted and constitutions giyen nance. I have already held that the that in his opinion the party ordered the premises to be altered, something more than a technical found that provided that nothing should be Legislature would hays power, if clamouring for the discussion of but what power is there to order offence had been committed and im- ennoted repugnant to the laws of it so desired in an emergency, bo only two resolutions was outnumber the premises meanwhile to be closed posed a fine of $100. An order was England: and there is no doubt | establish à censorship of the Press, ed by those in favour of the eight to the public f that that had given rise to some and that it has authority to depute resolutions in the requisition. S

Me Manage made for the promises to be altered Mr. Bottomley I am not quite to conform with the requirementä ol doubts and difficulties which the such power to the Governor in Exe The case adjourned until this certain about that. Act was intended to curb.”- Then - outive Council.

the Building Authority within four morning.

(Continued at foot of next column.) teen days..

NO ACT OF PARLIAMENT.

Cr. the judgment of the Privy Council in re. Reg v. Morain ex parto Marais, 1902, 4.C. p. 53-4.`

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