1938-12-14 — Page 16

16

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Wednesday

HONGKONG TELEGRAPH

APPEAL ALLOWED

Nuisance Abated After

Notice Expired

December 14, 1938.

LOCAL HORTICULTURE | Society's Report on The

Past Year

The Hongkong Horticultural Society's 23rd. annual report, to be | presented at the meeting next Mon-

Judgment in favour of the appellant was delivered by Mr.sy, states: Justice R. E. Lindsell, the Acting Chlef Justice, at the Supreme Court yesterday, in an appeal against conviction by a Police Magistrate on a sanitary summons. His Lordship said the con viction had to be set aside, and the fine of $15 imposed on the appellant be refused.

person.

The annual show of flowers and vegetables toolt place at St. John's Insitute) on March 3 and 4, and was Ploce (opposite the Helena May a great success. There was an Im- provement in the attendance this year. Appellant was Mr. Li Too-fong, which the conviction was recorded and the Committen hope that this will Manager of the Bank of East Asia, was that of falling to comply, within e malutoined in

the forthcoming Ltd., and he appealed agamat his the time limited, with the terms of show to be held next March, The conviction by Mr. K. M. A. Bornett, the Urban Council's notice, mxf It is number of entries in both the Open Magistrale, who imposed a fine of $15 common around that the appellant and Peak classes were quite good, on him for failure to comply with a did not comply with those terms until and it is hoped that members will notice of the Urban Council re-the ninth day after the service of send in all the exhibits they possibly quiring him to remove the accumulathe notice.

can for the continued success of the tion of stagant water in the roof It submitted, however, by Mr. annual show. gutters of 24 Somerset Road, Kow-

Macnamara that the only offences His Excellency Sir Geoffry North- loon Tong. The summons was taken created by Section 24 are those (a) cote evinced keen interest in the out by Sanitary Inspector Kam Nal of allos fal, who was named as respondent in nuisance after the time limited

of allowing the continuance of a Society by exhibiting and visiting the

and Bito by the appeal.

very kindly distributed the the abatement notice right up to u prizes. It is regretied that Lady Mr. H. C. Macnamara, Instructed time when

applied for; Northcole was SummonA

unable to attend, by Mr. M. W. Lo, represented ap- and (b) of taving created or allow having left the Colony on urgent pellant, and respondent appeared ined the existence of a nuisance which private affairs.

though abuted since the expiration The Committee desire to express The appellant's premises were of the time limited by the notice is their thanks to the Hongkong Govern- visited by the Sanitary Inspector on shown to be likely to recur.

ment for the use of the ground at St. April 29, and on May 6, a Statutory He notice was issued by

argues that this is the natura) John's Pince: to the Commissioner of the

Urban and

interpretation of the Police for the reasonable

valuable assistance Council requiring, within seven days Section and that, to attempt to read mered by the Police

the time of service thereof, the into it by implication provision Brigade: to Captain C. S. Sandford, and the Fire abatement of the nuisance and pres that failure to comply with vention of

Officers of H.M.S. an abale

Q.B., R.N., and its recurrence.

This was ment notice within the time limited Sunok for their band; to all those served on May 13, The seven days)

offence, is to who rendered services in various a per se an at thus expired midnight on May

On May 31, the respondent paid

an unnatural construction upon capacities, and also to the donors to ald a penni provision which, according the prize fund. a second visit to the appellant's pre- to the cardinal rule of interpretation. mises

and found the same nuisance should be read, so far as may be, in still

existing, but it was abated by favour of the accused. May 23,

bera, as against 10 life members und With this submission I am On May 30, the respondent made

246 orama.y members In the previous agreement. complaint to the Magistrate under

year. The Commitice appeal once I think that the very words of the again to all members to make an 24 of the Ordinance in re:-) Section peet of non-compliance with the re-Section "or, in the case of a nui- endeavour to induce as many of their quirements of the antler, and on sance, if the same though abated friends as possible, who are interested June 23 the Magistrate (grued his since the service of the notice is in in gardening, to join the Society,

which

the slated

opinion of the Council likely to that coecur" make it obvious that the time remains sound.

The mumcial state of the Society The Committee wish been made that the

mited by the notice for compliance to thank Messrs. Thinson & Cu. for, with its requirements is not crucial. kindly auditing the accounts.

ALHAMBRA

NATHAN

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DAILY AT

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590 720

life members and 232 ordinary mem

The membership roll stands at 19

920

in

SUMMON, plaint had fendant (now the appellant) had failed to comply with a notice of the Urban Council served on May 13. intended that the defence that he The legislature having obviously which expired on May 20, requiring us since service of the notice obaled him to remove the accumulation of the nuisance complained of, shall not stagnant water in the roof gutters of the

on whose his premises and to prevent

the be open to a defendant formation of the same in future. premises

the

nuisance is likely to rocur, L.e. a previous On

and maybe August 11 the Magistrate held that since the notice had not been that this defence shall be available,

persistent offender, the implication complied with in point of time the defendant must be convicted. He also what I may call a first offender made an order under Section 35 (1) secs to be inevitable.

(b) of the Ordinance that the de- There by however, this difficulty fendant should prevent the recur- about Section 25 (1) that it appears [rtnes of the pulsance at the premises to contemplate three cases in which

in future, and under Section 25 (2) a Magistrate shall make an order; imposed a fine of $15.

In his judment his Lordship ruid in part yesterday:

(1) If the requirement of the Coun-j

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eil is legal; (2) if he is satafled that December the alleged nuisance exists; (3) if Jan. (1939) the nuisance. Mai. (1939) At the hearing of this appeal he is satisfied that

though abated, is likely to recur on May (1839) myself raised the preliminary point. that

|July (1930) the notice the same premises. which was not raised In

I am entirely at a loss to conceive Oct. (1939) of appeal, whether under the pro- visions

circumstances Section 24

(if any) the Spot and 25, which whe seem to limit the magisterial Juris legislature had in mind, in providing diction to the making of an order for the making of an order merely i

of an order on the ground that the requirementar (1839) in one or more of certain forms, it of the Council was legal. was within the Magistrate's power

of

to record a conviction, sincs, if he I cannot help thinking that the May (1930) had no ruch power, and if the words words "if the requirement of the September... be consume "the defendant must Council is legal". Ute equivalent of, October

of hi

16.00 /01a 10.805/05;

15.95 /08 15,93b/07

Sales for the day:-080 tons.

Chicago Wheat

03/03/ 664/665% 06/00% 66%/604 664/66

Monday's Sales:-9,919,000 bushels.

were not mure sar-which did not appear in the English) plusage, it was obvious that the con- Public Health Act from which this

our Sanitation Qr-December viction recorded ainst the appel-provision of lant could not stand.

dinance was ultimately derived, were as Mr. Macnamara, however, antisfied inserted ex abundante cantela and July me that the imposition of fine, such were intended to quality the whole as a Magistrate is empowered to of sub-section (1) of Section 25, and order carries with It hy necessary lience that the word "or" ir the Implication conviction The second line cannot be read disjunc-December

of offence in respect of which the fine

If "and" be substituted for May Rively.

or the subpection mokes sense. July is imposed.

Question At Issue

otherwise it does not. The question I have to determine therefore is whether in this case the appellant was rightly convicted.

the offence for It is clear that

it

For these reasons I hold that this appeal succeeds, that the conviction December must be set aside, and the fine of May fuly $15 refunded to the appellant.

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AVIATION PROGRESS

Interesting Film Shown To Rotarians

and Zion Canyon were two of many highlights of the flight.

Thanks Expressed

The speaker was thanked by Wing- Commander R. Murray, of Imperial Airways, who said the film was the A film showing stages of remarkable one which they had been Alying from Its crude beginnings glad to see. It was toples! in view. hundreds of years ago to Its modern of the interest shown In Christmas perfection, was shown at yesterday's moll, 134 tons of which had just left meeting of the Hongkong Rotary for England. It was to be hoped Club, by

by Mr. Phil Delany, Tramic that in the future, aviation would Manager of Pan American Airways serve to being notions together instead in Hongkong

of being used as an instrument of

The film was made by United Air-destruction. lines and the Union Oil Co., of The Hon. Dr. Li Shu-fan, who America, and was shown by courtesy presided, said the next meeting of of the PAA, and the China National the Rotary Club would be the oc Aviation Co.

casion of a Ladles' Day, and Mrs. A. Crozier would talk on "Children of the Dead End."

wed-

The following guests were

In a brief preface, Mr. Delany said that 24 passenger aviation transport companies competed so keenly for custom in the United States, that comed: Rotarians T. C. Yu, Tientsin;- and the competition was mostly con Mezars. H. G. Willama, J. Winning, flying was accepted as commonplace C. Pan, Penang, H. Kadoorie,

Shanghai; A. Hodmelster, Canton fined to the best fried eggs, cooked steaks or beautiful stewardesscal. Claque, D. Drummond, Lam Po Fares had been reduced to approxi-kwok van Donselaar, C. E. Roussiet, mately the equivalent of first class C. Mycock, H. Donovan, C. D.

Morrison, E. P. H. Long railway fares.

Rotarian C. Barry, was welcomed A found him was then presented

featuring the remarkable acrobatics back from: furlough, of a French speed plane, formation Club's charitable effort in conjunc

It, was announced that the Rotary fying by army planes, and the exion with the King's Theatre last traordinary views obtainable from a week, had raised $1,338 for the flight. ncross America. Boulder Dam

Chinese refugees.

Printed and Published for the Proprietors by FREDERICH PERCY FRANIÉLIN at 1 and 3. Wyndham Street in the City of Victorio, Hongkong.