1939-05-22 — Page 7

HONGKONG DAILY PRESS

COURTS

CHATER TRUSTEES'

TRUSTEES' APPEAL UPHELD

COURT REVIEWS HOUSES

USED AS BROTHELS

μ

on such terms as he may think fit, such a context as this the word to adjourn the hearing of the case "or" is clearly disjunctive. In what to some future day."

circumstances then is service to be It is not dimcult to imagine effected on the owner, and when suminary cases in which the séc-|on thẻ tênant? Reference to Sec- tion, which has been in force in tion: 14 of the Ordinance in my England for almost ninety years. opinion helps to throw some light is of great beheft and can pro- on this difficult question. That perly be invoked to svold multi-Section provides for the summary existing sure substandal justice, but I tenancy or sub-tenancy. Again desire to say emphatically that its we have disjunctive. alternative, use to enable a conviction to be and when the two sections, 13 and recorded where no legal offence is 14, are read and construed to charged is improper.

gether the only conclusion to which I can come is that "owner" in Section 13 stands in the same

Landlords Could Not Learn pleity of proceedings and to en- determination of

Facts Questioning Tenants

In the Full Court of Appeal on Saturday, the Chief Justice, Sir Atholl MacGregor, and the Pulsne, Judge, Mr. Justice R. E Lindsell, delivered Important judgments in respect of three ap- peals. One was brought by Messrs. M.B. Turner and H. J. Armstrong, trustees of the estate of 815. Paul Chater, who were convicted and each fined $25 by Mr. R. A. D. Forrest, Senior Magistrate, for having unlawfully perniitaj a buliding, N. 2 Swatow Lane, first floor, to be used as à brothel after notice had been served on them of the fact that the sccupier of the premises had been convicted of keeping a brothel.

In their judgments, their Lordships defined the position of the landlords and stated their opinion that the landlords could not be in a position to learn of what would occur in the premises by inquiry from tenants, and the legislature did not intend that landlords should personally visit their houses.

his judgment,

ALLEGED CONTRAVENTION

This point alone would in my relationship to "tenant" in Sec- judgment soffice to sustain this tion 14 as does tenant in the form- appeal, but in view of the fact er section to subterant in the that the appellants have been latter. notified that in the event of their succeeding on this, technical point they will forthwith be called upon

I

OCCUPIER

Section 14 3 further complicat-

to answer an amended charge, ed by the introduction of the word propose to deal with the provisions occupier, a word which is defined of Sections 12 to 15 inclusive of in the interpretation section. Are the Ordinance for it is an alleged we entitled to read into these two contravention of the machinery sections a legislative provision em- thereby set up that is the real powering a magistrate in a case; charge against the appellants. In the first appeal, Mr. H G. In

such as this, where there is no the Chlef

Section 12, as I have already contractual relationship between Sheldon K.C.), appeared for the Justice said:

said, is simple and capable of easy the appellants, instructed by Messrs. The appellants, who are trustees and straightforward construction. the convicted sub-tenants, on the appellant owners and Deacons; while Mr. J. B... Prentis, of the estate of Sir Paul Catchick The occupier or keeper of a house application of the owner to deter- Assistant Crown Solicitor, was for Chater, deceased, and as such are or part of a house who uses it or mine the sub-tenancy of an offen- the respondent, Inspector E G. mortgages in possession of certain knowingly permits it to be used as der with when the owner has no Post, of S. C. A.

premises known as No. 2 Swatowa lodging house or as a brothel is privity of contract and that with- Lane, were charged before the gulity of an offerice. It is after out any notice to the tenant to Magistrate on December 14, 1938, any such conviction that on a complaint alleging that they troubles begin.

out whom the offender, owes his sub- "unlawfully "did permit the pre-

tenancy? The other three sections are in mises No. 2 Swatow Lane, first the following terms: floor, to be used ag a brothel within three months after the service upon them of a notice of the fact that the occupier of the sald premises had been convicted of keeping a brothel there."

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It is a cardinal rule of construc- tlon that statutes which encroach Section 13.-Where It has been

on the rights of the subject, whe- proved to the satisfaction of s Magistrate that an exence under ther they be rights of person or of section 12 has been committed with property should be interpreted, if respect to any house or portion of rights (per Bowen L J. Hough vs. possible, so as to respect such a house he may order that a notice windus 12 Q.B.D. p.224). In the margin, opposite the of the fact shall be served, either presumed where the objects of the body of this complaint, is a re- personally or by registered post, act do not obviously Legislature ference to Section is of the upon the owner or tenant of the does not desire to confiscate the Women and Girls Protection Or- premises or, if such owner or ten-property; or to encroach upon the ant is absent or under any dis-

dinance, 1938.

EO

DETERMINING TENANCY

It is

It Is common ground that at ability, upon his attorney, agent or rights of persons, and it is there- the outset Mr. Sheldon, for the rent collector or, if such owner or fore expected that if such be its appellants, took the preliminary tenant is a corporation, upon they, if not in express words at least intention it will manifest it plain- point that the summons disclosed | Secretary or Manager thereof.

offence in law. There is. strangely enough, no reference in the Magistrate's notes to the fact Section 14.--After service of such that this point was taken, but the notice as is mentioned in Section Magistrate "records it in the first 13 any Magistrate may, at the re- paragraph of his case stated. | quest of such owner, tenant, attor- ney, agent, rent-collector, secretary

UNKNOWN CHARGE.

by clear implication and beyond reasonable doubt. Western Coun- ties Railway Company vs. Windsor and Annapolis Railway Company 7 Appeal Cases at p.188

I am unable to read, into the words of the relevant sections any

or manager, make an order (which such clear implication. The sec- The charge brought against the shall be recognised and given effect tions indeed are in my view cap- appellants is one, unknown to the to in any proceedings in anyable of simple construction ad- Be- the Ordinance makes it an offence to any existing tenancy or sub-j fore the sections can become oper-

law of this Colony. Section 12 of Court) absolutely putting an end verse to any such meaning. for any person who is the occupier tenancy of such premises as from ative there must have been an

or keeper of a house or part of the date of such order, and there- offence under section 12 with

a

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2.5

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· CHARGE

Following an arrest at No. 18.

house (both "accupier" and upon such tenancy or sub-tenancy respect to a house or portion of a Lin Fat Street, on Friday, two men "keeper" are defined in section 2 shall absolutely cease and deter-house. That house or portion of appeared at the Central Magis- and admittedly do not include the mine for all purposes and the oc-ja house must be in the occupation tracy on Saturday on charges of appellants) knowingly to permit it! cupler, tenant or sub-tenant of of someone. holding either conspiracy and larceny by trick. to be used as a brothel, In the such premises may thereafter be tenant from an owner or as sub- Leung Kang Wu, 32, and wan present charge the word "know-treated as a trespasser,

tenant from a tenant, If such Kin, 48, by naine, they were ingly" is omitted, though it is of Section 15.-If, after service of person is the tenant of an owner charged with having obtained. vital importance in view of such such notice as is mentioned in notice under, section 13 would pro-$2,148 worth of goods from three decisions as those in Somerset vs. Section 13. an offence against perly be served on the owner; if Chinese women workers for the Hart 12 Q.B.D. p 350. Redgate Section 12 is proved to have been on the other hand such person is Swatow Drawn Works Co. ve." Haynes, 1 QE.D. p 89 and committed by any person within the sub-tenant of a tenant the|

The case was remanded to May Somerset vs: Wade, 1894 1 QB. p three months after such service, proper person to receive notice is 23 at 11.30 am. The police have 574, nor was there any evidence the person upon whom service is the tenant.

recovered $2,048 worth of goods whatsoever that the premises or made (and, if he be an attorney,

stolen. any part of them were used as a agent, or rent collector, also the brothel on the date charged, landlord whom he represents) The magistrate, under section 14. December 1, 1938.

shall be liable on summary convice is then intervening summarily to Notwithstanding this preliminary tion to a fine not exceeding five determine a contractual relation- ALLEGED ASSAULT objection "the Magistrate allowed hundred dollars, unless he proves ship between the applicant and the case to proceed and ultimately to the satisfaction of the Magis-the offender, which is clearly convicted the appellants without trate that he neither knew nor what the Legislature had in view recording what offence it was of had reasonable means of knowing when that part of the Ordinance. which he had found them guilty. that the premises were being used was enacted. When I turn to Ser Court on Saturday on

In so acting the Magistrate as a lodging house for prostitutes tion 15, the Section under which of assault with intent to rob at relied on Section 21 of the Magis-or as a brothel,

these proceedings purported to be 36 Elwood Road on May 12, the trates' Ordinance, 1932, which After carefully reading these brought the view which I have complainants in the provides: "No objection shall be sections, and having had the ad-taken of the proper construction Ronald John Egan and Mrs. J. taken or allowed to any complaint, vantage of hearing Council on both to be placed upon the two imme Egan. A remand of three days information or summons for any sides I can only say with Lord diately preceeding sections is re- was granted. alleged defect therein in substance Hewart LLC. J. In a recent judg-inforced by the use in this section Chung Hung, 26, Liu Hui, 20, Au The four men are for in form, or for any variance ment "It may be easy, to compress of the word landlord" (a word Hung, 24, and Chung Churn, 22

between such complaint, Informa-into the same number of lines which is not defined in or used tion or summons and the evidence more fertile opportunities for anywhere else in the Ordinance) | | abduced in support thereof, and doubt and error.”-

In the absence of any special an-

3

the adjudicating `magistrate shall Section 13 begins well. It pro-notation attached to the word for

1

TO ROB

Four men appeared before Mr. Himsworth at the Kowloon a charge

сабе being

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have been guilty: but if any such that fact, upon the owner or and 2 H. and N. p.446) "generally above this appeal minst be allow- variance appears to the Magistrate tenant of the premises, or in the speaking, landlord' implies not the ed, the convictions be quashed and to be such that the party so absence of owner or tenant, upon mere lordship of ownership of the the fines Imposed on the appel- summoned and appearing has been his attorney, or agent.

soll but the relationship to a lants be ordered to be refunded to thereby deceived or misled, it Notice is to be given to one per- tenant.

them shall be lawful for the Magistrate, son and to one person only, for in I have had the advantage of (Continued on Page II)

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