1937-06-12 — Page 2

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HONG KONG DAILY PRESS, SATURDAY, JUNE 12, 1937.

FULL COURT OF APPEAL

Judgment Upheld

At the. Full Court of Appeal yes: terday morning, an appeal to up- hold a judgment, given in the absence of one of the parties who inted to appear to contest the case, and in which ninéty per cent of the action was afterwards ad- mitted to be unmaintainable, was dismissed with costs by Mr. Justice A. E. Lindsell and Mr. Justice J. A. Fraser.

FIRE AT MOTOR SHOWROOM

A fire broke out in the garage of the Far East Motors Limited in Kowloon, yesterday morning at 11.20 .m. The total value" of the damage done was estimated at $500. One truck and a car, which brand new, were partially damaged.

were

The Are was extinguished by ap- prentices of the garage at 11:33 am. before the, arrival of the Fire Brigade.

The truck and the car were insured.

FALSE REPORT TO POLICE

Countryman In

Trouble

Yuen Wan Ki, a native of Mul' Wal village, again appeared before

Mr. W. Schofield at the Central

Magistracy yesterday when the

case in which he is charged with making a false report to the Police, of having been robbed of some money which was given to him by his master to purchase old flour bags, was continued.

At the first hearing the defen- dant admitted the charge,... but denied it at the second hearing. while yesterday the defendą.. again admitted the charge.

Appellant was Mrs. Tso Yuk- tong, and the appeal arose out of an action brought by her against of the discretion to set aside was the Luk Hot Tung Co., Ltd., claim- fully considerel by the House or ing the return of a debenture deed Lords, it was held that the da- valued $8,130.10, plus $821.12 in-cretionary power of a judge in Inspector "Darkin who prosecut- terest. She obtained judgment on Chambers, both under Order Xured, stated that he had sufficient account of the hon-appearance of Rule 10 and under. Order XXVII evidence that the report which the respondent, but subsequently Rule 15 is unconditional and that was made by the defendant was the latter succeeded in having the "unless and until a Court has pro- entirely incorrect. As the defen- judgment set aside.

nounced a Judgment on the merits

dant again ädmitted the charge it The Hon. Mr. Leo D'Almada, In-or by consent, it has the power

was unnecessary for him to call structed by Mr. M. A. da Silva, ap- to revoke the expression of its

his witnesses. peared for appellant, and Mr. H. G. coercive power where that has only Sheldon, K.C.. represented respon- been obtained by a failure to follow dent on the instructions of Mr. M. any of the rules of procedure." M. Watson, the appeal having been heard on May 31.---

Mr. D'Almada was instructed at the end of the hearing to ask for a written judgment which Their Lordships gave yesterday.

"

THE JUDGMENT

|

It is true that Lord Wright sug- gests that "laches" on the part of a judgment debtor may disentitle him from getting a judgment against him set aside. But "the pri- mary consideration is whether he has merits to which the Court should pay heed."

Outlining the case, Inspector Darkin, said that the defendant came to the Colony from the country and went to a shop at No. 215 Queen's Road West, where a clansman ran his business and stayed there. On May 23 the master of the shop "gave of $20 the defendant the sum to go out and buy empty flour bags. The defendant left the shop at 10 p.m. arid returned with the flour bags and gave his master the sum of $15 representing the change.

Mr.. Justice Lindsell said: This is an appeal against an order of

EXERCISE, OF DISCRETION Sir Atholl MacGregor, Chief Justice

Lord Atkin also gives his opin- made in Chambers on April 15, ion of the rules that the Courta 1937, setting aside the judgment obtained by default on March 13, have laid down for themselves to 1936, by the plaintiff in Original Kuide them in the normal exercise Jurisdiction (the present Appel- of their discretion. He agrees that lant) against the Luk Ho! Tung where the judgment was obtained Company Limited (the present res-regularly (as here) the debtar ap-1 another 820 and that was the last

Fondent), and giving the said res- pondent unconditional leave to-de- fend.

The only facts in the case which appear to us to be material are as follows:

The appellant was in March, 1936, the holder of a debenture

bond then of the face value of $8,- ∙139.10 issued by the respondent

Company on May 17, 1934.

1-Having received no reply to two letters of demand sent by her solicitor in the latter part of February, the appellant on March 3, 1936, issued her writ against the respondent claiming the sum of $8,678.83. being as to the sum ei $8.139. balance of principal due and wing under the said deben- ture bond and repayable on de mand and as to the sum of $539.73 arrears of interest payable there- under.

plicant must produce to the Court evidence that he has a prima tacle defence. but he doubts the ex- Istence of the other rule, (which was relied on by the respondent in that case as in this),

that the

applicant must satisfy the Court that there is a reasonable explana- tion why judgment was anowed to go by default. "In any case)" (he continues), "In my opinion the Court does not, and I doubt whe-

ther it can, lay down rigid rules which deprive in of jurisdiction. Even the Arst rule as to affidavit of merits could in no doubt rare, but appropriate cases, be departed from."

Here the order appealed against was not based on any statutory. judicial rule but upon the inherent Jurisdiction of the Court to Inter- vene to correct or prevent any abuse of its process. The order obviously cannot have been based

on the proviso at the end of Sec- ❘tion 22. of the Code because that

4. The respondent entered no appearance to the writ within the statutory eight days and on March 13, 1936, the appellant' obatned | proviso, unlike Order XII Rule 10 formal leave in default of such ap- and Order XXVII Rule 15, requires bearance to proceed to judgment every application to set aside to and execution and on the same be supported by satisfactory af- day judgment was duly entered for, davits "accounting for the defen- her."

dants, rion-appearance and dui- closing a defence on the merits, and it is common ground that the Order was made without considera- tion of the affidavits filed herein, both those in support of and those resisting the application.

5. The Secretary of the respon dent Company was aware of the signing of the judgment shortly after March 18, 1936. ·

6.--On February 9, 1837, the appellant instituted bankruptcy proceedings against the respon-" dent Company by filing a winding- up petition of which she had four months previously given notice to the respondent Company...

7-On February 18, 1037, the respondent Company applied by summons under Section 22 of the Hong Kong Code of Civil Proce dure to have the Judgment filed on March 13, 1936, set aside and for leave to defend the action.

8.-This summons was heard and determined in Chambers on April 15, 1937, by the Chief Justice who then made the order in favour of the respondent Company now ap pealed against.

CANNOT BE DOUBTED The existence and potency of this inherent' jurisdiction cannot be doubted.

It is submitted, however, for the appellant that the exercise of this jurisdiction is no less discretionary than the statutory power to set aside, and that the discretion is subject to the same clear and well defined limitations which require inter alla that one who asks for its exercise in his favour must first show that his own conduct in the matter has been blameless.

Some support for this view is to be found in cases elted on pages 9-The order appealed against 430 and 431 of the Annual Practice, was based on the ground that once though it may be doubted whether it is admitted that an action was in view of the decision in Evans not ab initio maintainable, judg-V. Bartlam (supra) many of those ment obtained by default there- cases do not go a great deal too under must be bad and should be far. In any case we are unable set aside ex mero motu by the

to accept that view as applicable Court.

to the present case. Here the judgment has been obtained in de fault in an action which it is now In these circumstances, it seems admitted was and is, as to over to us that the arguments of ap- 90 per cent of the sum claimed pellant's Counsel are of doubtful unmaintainable. To sign fuds- relevancy when he says that the ment even though in the honest Court ought not, either under belief that the claim was maintain Section 23 of the Code or under the able and subsequently to rely on rule in Muir v Jenks (1919 2 K.B. the non-payment of the judgment 412) to exercise its discretion in debt as a ground for instituting favour of a judgment debtor and bankruptcy proceedings was in our

DOUBTFUL RELEVANCY

DEFENDANT DISAPPEARS On the following morning the defendant again asked his master to give him some money to go and buy flour bags, and he was given

the master saw of the defendant, until he was brought back by the palice.

On May 27, the defendant went to the Wing Tal tea house at 33 Queen's Road East and purchased' 14 four bags for which he paid $1.54. Defendant then returned to

the tea shop and Informed the master that he had lost $10, and asked him whether he had seen it pr not. The master of the shop said "No" and helped the defen- dant to look for it among the four bazs.

A FALSE ALARM

At 11.30 am, the same day a travelling trader by the name of Chun Fai saw the defendant at Jardine's Bazaar, blowing a police whistle. Eventually a polloarian

came on the scene and took the defendant to the station. At the station the defendant made a statement that he had been rob- bed of his money.

53

The defendant was then kept in the station

his statement sounded suspicious, and enquiries were made, and, his report was found to be entirely incorrect. The defendant was then charged with making a false report to the police.

POLICE TROUBLED

Inspector Darkin asked His Worship to take a serious view of the matter as on the day in question the defendant caused the police a lot of trouble as they had the whole of the emergency squad on the job to try and locate the robbers. His Worship then impos- ed a fine of $100 or two months' hard labour, and at the expiration of his sentence he was to be sent back to the country..

·PRISON · COMPOSITOR FINED

Appearing before Mr. W Bcho-- held at the Central Magistracy yesterday, Leung Ying, a 44 year old compositor at Stanley Prison, was charged with carrying three. ounces of tobacco into the prison without permission. The com plainant was Chief Warder C. W. Fitzgerald, a

Defendant stated that the to- bacco was for his own use and he did not take it any further than the main gate. Sub-Inspector Babey who prosecuted stated that at about 8 am the day before yesterday, the defendant was in- side, the front gate of the prison on his way to be paraded with other compositors, when Principle Printing Omcer Didsbury saw the defendant take out a packet of tobacco from his jacket and throw

then imposed a fine of $50 or, in. default one month's hard labour.

set aside a judgment without con- view such an abuse of the pro-it on the ground and attempted to alderation of all the surrounding cess of the Court that, so soon kick it out of sight. His Worship circumstances and in particular of the debtor's own conduct, and that In this connection distinction must be drawn between regular and ir regular judgments.

the Court had notice thereto, it was eritifled ex mero matu to correct that abuse by setting aside the judgment..

For these reasons we hold that Furthermore, even if these aryu- this appeal fails and must be dis- ments were material, they are not missed with costs. "It follows that supported by the latest and most the appeal in Companies Winding cogent authority. In Evans V. Up No. 1 of 1937, Appeal No. 6 of Bartlam (B3 T. LA. 889) in which 1937 also fails and must be dis- the question of the proper exercise missed with costs

REO.C.A

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