Sessional_Paper_1908 — Page 733

HONGKONG.

No. 1908

31

CORRESPONDENCE REGARDING THE CONSTITUTION OF THE APPEAL COURT.

Laid before the Legislative Conncil by Command of His Excellency the Governor, December 3rd, 1908.

CHAMBERS, SUPREME COURT, HONGKONG, 25th September, 1408.

SIR,I have read the remarks which Your Excellency made in Council on Thursday last on the subject of the third Judge with surprise and regret; and I must enter a very respectful but emphatic protest against Your Excellency's view as reported in the newspapers, that "the existing Appeal Court must necessarily be a farce", and that this view is supported by the Chief Justice. The public expression of such a view is calculated to do the gravest harm to the prestige of the Supreme Court in the eyes not only of Europeans but also of the Chinese.

2. That the constitution of the Appeal Court is extraordinary in so wealthy a Colony as Hongkong is a fact which I have always admitted: that it is anomalous, that it deserves. the strongest hostile criticism, may also be conceded. But that is a very different thing from saying that it is a farce; for this implies that the Chief Justice is obstinately tenacious of his own opinions, and that he will never change them whatever new arguments may be advanced on the appeal. Such an idea is contrary to the high-and they are very high-traditions of the British Bench to which I have the honour to belong.

3. I know that the idea to which Your Excellency gave expression was current in the Colony, and I took occasion some time ago in Court to say that the constitution of the Appeal Court being what it was I conceived it to be my duty to make the best of it, and I assured the profession that I came to the hearing of an appeal with a mind absolutely free and treated it so far as possible as a new case. Only recently I said with the same object in view that a Judge is always assumed to have the honesty necessary to reverse his own deci- sion if, on further argument, it is shown to be wrong. A second argument often puts things in a new light, and points often occur to one which did not present themselves on the first. second argument and a second judgment upholding the first may lead to a clearer appre- ciation of the law, and prevent an appeal to the Privy Council. Although it has not happened up to the present that I have had occasion to reverse a judgment I have given, on minor points I have frequently had occasion to change my views, and I can quite conceive the possibility of my doing so on a crucial issue.