1948-09-02 — Page 5

THE HONGKONG TELEGRAPH, THURSDAY, SEPTEMBER 2, 1948.

LEGAL

COWIE LOSES

ARGUMENT

In order.

waa

(Continued from Page 1)

WAN

of

and more-

whether the Of the cases cited by counsel for 'went on to consider the Board had no power itself to

the plaintiff In this connection, that Court set up by the Sultan had la nel upon and that the action to

disera of O'Connor v. Malone 7 E.R. 814 fact made a decision which was a be taken by others

Judgment in ren: irrespectivo lunary goes more to the question of is authority for saying that on a

was designed to Judiciul new trial of an issue the previous whether or not it

In the Intter. whether the decision was in law and I will deal with it under verdict cannot be given in evidence Inform the Sultan. that head. The questions remaining even though it is not set aslife. At the Board was not set up in in- for discussion therefore are Nos. (1)

It is stated. " is a subsequently dismissed, Chancellor, and (v) above and I will take them Page #23 of the judgment of the Lord quire into the conduct of the person

it was

Justicial held that a ver-over well-known rule of law that a ver-

where unnecessary diet without a julment is no evi- enquiry

It is TRIBUNAL FACTORS In deciding whether, the decision dence at all; the reason being that lambent was discretionary. before the Court is deemed in law there is nothing to show that such a question of the nature of the en- verdict may not have been set aside.quiry in each case, and parentar- Judiciai so as to support a plea of res judicata, it is necessary to have re- or may not have been neted on by where the enactment relied upon

That is not the case as

cartas giving power to dismiss gives that gard Brstly to the nature of the the Court.”

and here. I do not agree with counsel power only (inter alin) for wome discipline or misconduct, la tribal which pronounced it

nature of the de- for the plaint that the Commis-breach of secondly to the cision itself. Both must be judicial loner could refuse to act upon the it expedient to base dismissal upon

is to succeed, Judetul Bading of the Bourt. He had a dis-n judicial enquiry.

im unable, on my rending of the if the plen tribunals are not limited to what are cretion as to his artton but he must

whether of exercise it on the inuling: the word-authorities, to come. to any view usually enliet Courts, record or not, but include all persons of the regulation is mawistory: other than that the Board was

make his award or lake judicini tribunal and made a juttiemi he "w!!" who

Judicial buddies

exercise

prescribed, decision. the piternative Course functions by proper authority, per

. v. bitents of Wandsworth 100 manently or in particular cases; the authority is most frequently derived. 11. 23 seems to me to have turned

от

from stalule, but custern, common law, charter or any other source re- engnised by law will suffice.

the

THE LAST QUESTION The remaining question now to be on the recording or entering of decided is whether the judicial de- the decision in favour of one party cision was, or involved, a determina-

from the the other na distinct

Counsel

tion of the same question as that-

controverted in passing of sentence.

1

sought to be Spencer Bower in his work on

likened the Board to a Coroner's en-litigation in which the estoppel Res Judicata does not attempt de-

of which cannot raised." the verdiet

Looking at the decision of Tuition of "Judicial tribunal" or ufum the basis of a res judicala plen, the Board and the present question

1 a speclai between "Judicial functions"

the parties, I contents The latter however himself with a classificaties: aut position though no person is chargs say that the former did not neces- enumeration ranging from the very

High Court of " before it with an offence, never artly decide the whol highest courts, the Parliament and the House of Lords

but

quary

theless may bring

I am bound to !

question now in a ventict, in Bue, unless the power of dis- acinst a person who has got even missal given by rection B of the be heard. Tis decision is in no Police Force Ordinance, 1832, is to :be construed as empowering dis- way reclusive.

THE DISTINCTION

book for may misconduct however

That De slight. 1 These trivial sassy lear Further

Spencer may be so but it remalos to be de- to the question Hower at page 19 Note Xid the clied additionally learned auther then, appexels the mute deckled by the Board and is there.

trother

The Board: issur. the verdict is no fore

to the "dumeste form” the arbitra- for or other person drawing authori ty from a Court order. statutory *provision or consent of parties.

slates (page 17) that there extremely Jew

Cases where 7101 been han

English ci authority heki to be a

not

He

which

udicial tribunal.1 ch cares, The essential requirements

of the decided more operative as a decision, at appear from o

if a judge were far muzounce cases are that the tribunal must be

he ha red certain facts.

bbs Jurigment 150 were to reserve

of persons,

perusal of

Wat

J

1327

Invested with authority to exc

to exercise the right or duty of declding a ques-the legal resili ot the fuels tion which touches or involves the found for further consideration ac! rights or status of persons or classes argument." I think there lies the In its proceedings distinction--the Court in such case has not completed its function; the must adhere to any directions of an authorising statute and to the ex- Gin decision is still uncertain, and tent that his procedure as laid down by a desistor I mean the de- cision of the question in issue before must adhere to the principles of a

distinct the Court as

frum sen natural justice.

The tener.

Board

fullled bas 211; functions entrusted

it estion made to

TRIBUNAL'S POWERS The tribunal at present under con- *sideration

ItR derives

under

1/14

autho

the

of course-

derision was that plaintiff was pullly at emituet of certain kind; it is tain that did not decide that i was reduct meriting dismissal, for that question was the province of the Commissioner

the and/or Governor and a lesser penalty might have been inflicted.

Naval Dockyard Blaze

Flames and smoke leap high as the medical stores in This graphic picture was the Naval Dockyard blaze. taken at the height of the fire which securred yesterday

evening. Photo by Ming Yuen,

Women Robbed Girl Rescued

In N.T.

It perna me therefore that the! pleadings raise two Issues-firstly whether the plaintiff was guilty of conduct calculated to

the Two Chinese robbers, armed bring public servies into disrepute ete, and

with a dagger entered a cottage secondly whether, if so, that is con-

in the Fanling area possessed duet meriting dismissal. The Crown by Miss Grace Ezra on Monday hat has not relied upon its special post-night and bound up an old devitle wis decided full:tions as such and the

affecting Farer tract.

Juther

question

tu determine a quest Board were closely analogous criminal proceedings-a charge was

decided the preferred and guilt

Police

bnve the Ordinance, 1832, which force of law. They authorise appointment of the Board, after o prima facie ense of breach of dis-

found by bren clpline las Commissioner, "to hold and conduct

disciplinary enquiry"; powered to read charges to a de- fendant and to take his plea Bezelo, to hear the prosecution and defence The and to record its findings charges. It has no connection with the penalty but forwarda Its Andings to the Commissioner.

*

o

matter

From Harbour

A Chinese girl of 20 attempted to take her life on Tuesday night hy Jumping from the ferry Night Star crossing from Hongkong to Kowloon. A Chinese sailor passenger jump-

by

the girl

ed in to rescue her, and having d rity from Regulations Force and irrevimably. Although designed therefore governed by the Police Chinese housekeeper and her knowledge of lifesaving, was grabbed who dragged him down Force Ordinance, 1932, and the con- young servant with steel wires. with her, civil rights, the proceedings of the tract The construction these They then proceeded to heal! Another

Chinese salter, Fecing documents may, dispose of the se- vond issue in toto ar may leave a

them up and threaten them, and their difleulty. Then jumped in and question degree of intsconduct escaped with all they possessed, the two men managed to rescue her. She was unconscious when landed 10 the Court.

any

event worth about $20 in cash and

on the Jetty but artificial respiration convict the present position

is that VILK

was framediately applied goods.

and the only uf

Issues nuw

walkinggirl revived. She was then sent to Two by was decided the Board. The question is whether along a highway in the New Terri the Kowloon Hospital. the plaintiff is estopped on that tories on Tuesday evening were held who up by two unarmed bandits. forcibly searched them and robberl them of about $55 worth of cash and jewellery. One of the women had a ring snatched from her finger.

FATAL COLLISION

is therefore interesting to note that it is ema vaild pica of autrefois

may be made although no sentence has been pronounced. It v. Sheridan That case was 1937 1 K. B. 223. distinguished from B. v. ileriford- 1 012 shire Justices (1911) 1

latter on the ground that in the

the by adjudication justices. It is the adjudication

Y

gut

there was no

Was

K.

The before the Court

issue.

Chinese

women,

woman

of 35 was crowded

AUTHORITIES QUOTED On principle it would appear that is the basis of the estoppel in the is. In Outram v. Morewood 3 which is nutrefois nequit or convict and in East 346 it is held (nt page 355) that

adjudication the present else the

the estoppet precludes parties and A Chinese complete-all that remained privies from contending to the contrary

of that point, or matter of fack, while instantly killed when was for sentence to be passed.

Fence having been distinctly pm in issue bus and a motor lorry collided at

by them, or by those to whom they

prvy in estate of law, has been, fa bend near the Un Long and Kan of the matter of on such insug joined, Another aspect

found Pin lepinty

6.30 ut crossing

on about finality as argued by counsel for the beatist them."

The question so answered is ex- Tuesday morning.

A Chinese lad was also seriously plaintiff is said to appear from an

is now in Kowloon examination of those cases concern-, pressed at page 358 as follows:-

un record. Injured and

ANOTHER ASPECT

KTC

"Whether

an

Counsel for the plaintiff has attempted to distinguish between a breach of discipline and misconduct (which are separately referred to in Sections 15 & 16 of the Police Force Ordinance, 1932, dealing with

and punishments

dismissal) takes no objection to the jurisdiction of the Tribunal to decide the matter which was before it. There seems no doubt therefore that the Board was a judicial tribunal: it wens duly rufurised by law to geende a ques-ed with dismissal of various officialsch true has been taken uni liospital. tion arising uster partes and to make by domestic forums and removal of men found: it between the partiewe lakiess a finding theseon. I was required ones from the Aledical register by and their privies, conclusive, according

the General edient to proceed in a judicial manner

Council to the fiting thereof, so as to estop the parties respectively from aptain giving full right of being heard and

Hadition 99 Examples are Davy v.

59 Hurating that fact once so tried and et cross-examination to each side.

This case is erferred to in In- There is ample authority for saying that the bscher of Power

E.R, at 1100 and Hill v. Clifford 1907 spam Vol. XII p. 409 as on exam- administer an eath is immaterial 2.2 Ch. 336. It is submitted that the ple of an "estoppel" where "a plea Leeson v. General Medical Council tribunals in these cases, which inci- of tes julente 43 Ch.D. 380,

dently are relied upon by the Crown etablished." Spencer Bower quoting have what the same case does not draw this as supporting its Ponsel calls "the essence of tinulity" distinction which is not material as or it arises out of the different systems authorising

charters .. In other words they of nomenclature adopted. themselves are authorised

ta dis-

In Jones v. Lewis 1919 1 K. B. noon I confess that i am unable to at 345 Bankes L...J. said:

differs

"No question of fact which was directly in principle we between the parties t the actum before Bray 4nd which was of deciding

sudterally whether

the same would requisite inisconduct has occurred by either past, and

JUDICIAL DECISION?

The next point for consideration Is whether the lading of the Board which is was a judicial decision,

defined by Spencer Bower at page

Elt. $69, Hayman v. Rugby School found." 18 L.R. Eq. 20, 1. v. Grunton 98

In their enactments;

miss. 1

07

see how that

1 for the purposes of estoppel as

"n decision or

determination

adjudication of some

the task

could

never

be

1

S'hai Munition Dump Explosion

Shanghal, Sept. 2.-Two workers were killed and six others injured when several storkples of high ex- plosives blew up at a Chinese naval, ammunition dump here shortly after

yesterday,

The explosion occurred when the explosives were being heated to certain

temperature

ture of dyestuffs.

Promised H.K. Asylum

(Continued from Page 1)

the Chinese government for criminal prosecution, the spokesman said that since those persons claim to be poll- tical refugees, the Chinese govern- ment would have to, furnish reason- able proof that they are sought prinarity for criminal-and-not-poli-- tical activities.-United Press.

OPPOSITION TO CHIANG San Francisco, Sept. 1-Chinese Communists today proclaimed "North China People's Government",

opposition to President Chlang Kal-shek's, regime, according to a Chinese Communist broadcast picked up here.

In

The aim of the "Government" the "striking down of American im perialistic and Kuomintang rule in China," the broadenst said.

tion of Fame question of law from referring to a trama the devided by him, could be further liftented chemicals for use in the manufac-day session of the "North China

er fact, whether such decision takes

the form of an express judicial de claration, or is necessarily involved hi the conunand or prohibition judicial act in which constitutes the its coercive or operative aspect."

The finding of the Board would

at first appear naturally enough into the first part of this. express

brist

ת

The Radio announced that the a"People's Government" was formed, 10 extractį un August 19 at the end of a 13- Provisional People's Representative The failure to follow instructions Congress." leaving to the Crown the dis- apply to the exact pot decide by whether it were a point f

It did not say where the Congress by workers set to watch the hosting

The "Congress elected. 27 cretion as to whether the penalty of law or of mixed law and fact. But the

the learned Judge process to prevent the temperature met.

a "Government Coun- dismissal shail in fact be exacted. from which led

tah diuision upon the precise point It is true that in some cases, such as a not bind the parties in a subsequent

rising higher than 110 degrees Fab- members of H T

renhelt led to the blow-up, it was ell" to rule in the areas of North the General Medical Council cases, Faigation.

China occupied by Communist believe. CLEAR PRINCIPLE the enactment expressly states that

It is patterned on the old The injured persons included four armies. Hailsham Vol 13 nt p. 444 in- the tribunal's finding shall be final

Chinnan Communist regime set up in North students of the nearby

with its deltuition.

and conclusive. I do not conceive Cleates that material facts alleged!

University (which caters especially China before the ad- declaration Judicial

that this is vital, as there are many and admitted in pleadings, and facts to oversens Chinese students) who capital at Yenan, it was stated- of cases in

the enacting decided in

Beuter. question

issue, cannot be were walking on the enmpus. and words only create a jurisdiction to litigated possibly mixed fact

again between the same

that 70 It was learned without challenged as deekie a certain question

I consider that the prin a judicial decision on the ground į more. Once the judicial decision is ciple is clear but have cited these shells were consumed in the explo verdict not fol- mage in exercise of that jurisdletion, authorities in view of the bendnote sion which wrecked buildings withi towed by Judgment; a mere report it can be relied upon as res fudicato in Moss v. Anglo-Egyptian Navia a radius of over 500 yards-Heuter

Judicating fact, or

glance to

fail

Jon

a

law.

It is however

that it is only a

for the information missioner of Police. question argued by matter of finality.

which

parties.

an

anal, Fortie: of the Com-in my other court or tribunal tion Co. Ch. Appeals 108 which

counsel as

Board of Works 10 te to a bill on the ground of res av. Blumstead

A.C.

This is the example, in the case of Spuckman rea

reads (in part)"Demurrer will not

to re-

that

for first

A

mortar

SUDDEN DROP IN TEMPERATURE

war

Island Volcano In Eruption

Radto reports

island.

were

received in Tt is true that the only function 229 the House of Lords held judicain, unless it averg that every-

New York, Sept. 1-New Yorkers Hongkong to the effect that, the Camiguin Island volcano was cruP= who sweltered last week in a 100-ting and that streams of lava and of the

the Board is to hold something the mere words "such general thing in controversy as the founda- ine of buildings to be decided by tion of relief was also in con-

affect to theor

degree, temperature, awoke today at trial of a per the superintending architect in the nature of a

troversy in the former suit." diselplinary ci who a

Board of

achly 42-degrees and which rosevere tremors were endangering the Works Metropolitan

Indicates sight, this son against

Camiguin

of is north

Luzon, ex to slightly below 70 this afternoon. but view charge has been minile and

According to the Weather Burenu. Philippine Islands. turn a finding on that charge. The the time being" conferred en that contrary

uf the judgment to-

Residents of Mandajno and is object of the proceeding in the case gentleman, notwithstanding that he natio

caces cited with the hurricane danger had passed but

another minor tropical, storm of a sub-inspector can be nothing was an employee of a public body gather with the

vicinity are reported to have asked more region-United Press,

requesting those ships with ruaxi-

penalty

Z+2)

ix

inary to dismissal under slo

slon. In Fracis, Times & Co. v. On this question of identity of to justify dismissal does not deprive

as a preliminary section 10 which, unlike the two Carr 82 L. T. at p.702 Willams subject matter the plaintiff

J. Enid;

far there Is also on the ease of spectorn as

UNREST ON SIAM BORDER

(Continued from Fage. 1)

but to determine his guilt or other-ig a connection with the matter, I this as authority for the same prooving west from the Martinique į for ships to rush to their assistance,

en Jurisdiction which he must exer-position in Hallshun Vol. 13 p. 400 wise of a breach of discipline as eise judicially, and the exercise of makes it plain that nothing preliminary to inflicting a

would be a bar to further is decided or intended which

than that preclude the employer from getting mum passenger accommodation. That might be

by Die intiletéel

consideration of the matter in u where relief is, claimed in one suit up the lower degree of negligence Commissioner under section 15 of

which is dismissed, and similar re- required to succeed in the Бесон the Police Force Ordinance. 1932 Court,

lief is claimed in second sult

in JUDICIAL TRIBUNAL and the option given by the Re-

Issue.

The present case is rather culations

to Tite Commissioner Another submission by counsel is there is no res judicata if the matter action for that had never been

Certoin misconduct of forwarding

proceedings that the proceedings of the Board relied upon in the second suit was the opposite. the

to the

the were no more than an enquiry for not (and should not have been) was established in the first netion: with his recommendations

the fact that it is still in issue whe-

They suffered 280 kasualties com- Governor, indicates the Intention the information of the Crown and urged in the first sult.

DIFFERENT CASE

ther that misconduct was sufficient that the procedure is to be used could not result in a judicial deci-

nared with 217 terrorist casualties, relles the defendant of the beneft of what evirrd figures stated that 130 ter-

rorists had been killed und Hindley

v. has already been litigated.

with 2,725 is rounded,

persons de- In that case,

The point of law before

"The is to be a judicial proceeding for though a workinan hnd previously whether the plaintiff ought to be tained. purpose in is

not Was can discover no niher the Ordinance

be the purpose of determining the dis-won an action against his employer admitted to say that he which would

Including 13 Europeans served by sending these papers and position of, or the title to the goods for wrongful dismisml, it was held guilty of misconduct as set out in killed and 71 wounded in the same

The Court might well that the employer was not precluded para, 7 of the Statement of Claim period, recommendations to the Governor, in question. and therefore reading the Ontinance be a Court to report to the Sultan from recovering damages from the and on my view of the law I hold killed and six wounded.

Elght police were killed and 23 Dickson v.workman for negligeully damaging that he is estopped from so saying. and Regulations together, it is clear or his Government,"

The basis of the decl-

Mr Brook A. Bernacch, Instructed wounded, and 11 special constables that this is the prescribed proce- Combermere 3 F & F 627 was also materials. dure in case of dismissal of officers relied upon as an instance of an slon is obvious the first judgment by Mr Y. H. Chan (Tg's und Hodg-were killed and 15 wounded.

Among Any personnel, 11 were of that rank. The estoppel claimed, enquiry which was followed by the was not to the effect that there had son) apponred for the plaintiff and

*men Force however, extends only to the finding dismissal of a military officer, but been no negligence at all but that Mr A. Lonsdale (Acting Soilcltor-killed and 11 wounded. Five Roynl

were kliled to justify General) for the Attorney-General Air of the Board and not to the deck-which was not a judielal enquiry, there was Insufflelent

That did not who was named as the defendant. slon of-the Governor,

But in the former case, the Court summary dismissal.

"The

preceding sections, peetors. nothing to indienta that the enquiry Haslam 3 Q.B.D. 401.

as

me

Neuter.

figures gavo

70

131 civilinna

KING'S=

•AIR-CONDITIONED

HELD.

OVER!!

TO-DAY THREE SHOWS ONLY AT 2.30, 5.15 and 7.20 P.M.

ایی با طی دادن به ده ور

HIS SWORD LAUGHED AT DANGERT

HIS EYES DANCED WITH LOVES

COLUMBIA PICTURES"pententi Robert Louis Stevenson

The BLACK ARROW

storring

Louis HAYWARD-Janet BLAIR

-GALA PREMIERE-

TO-NIGHT AT 9.30 P.M.

Im they

(ACADEMY

AWARD

I'm the gal woko

gets into it

guy sho the trouble

starts

SAMUEL GOLDWYN

WINNER)

ME..

I don't like it a bit!

DAVID Gives you another hit that's full of fun and surprises! LORETTA CARY

GRANT YOUNG • NIVEN

Cary and The Bishop's Wife

with

·

GLADYS

ELSA

"GLEASON COOPER LANCHESTER

MONTY WOOLLEY-JAMES

and THE MITCHELL BOYCHOIR - Directed by HENRY KOSTER Robert E. Barcaron, the Noral by Robert Nathen Released through AKO

·Pictures,

THE ROYAL COMMAND PICTURE

ORIENTAL

AIR

CONDITIONED

TAKE ANY EASTERN TRAM CAR OR HAPPY VALLEY BUS

SHOWING TO-DAY:

2.30-5.15-7.30-9.30 P.M.

3 PROGRAMMESI NO ADVANCE IN PRICES!

TAKEN AT THE RINGSIDE!

JOE LOUIS

VS+

JERSEY JOE WALCOTT

OFFICIAL CHAMPIONSHIP FIGHT FILMS

RELEASED THROUGH RKO RADIO FICTURES

WALT DISNEY'S LATEST PRODUCTION! "HAWAIIAN HOLIDAY"

In. Technicolor

ADVENTURES of TOM SAWYER

PRODUCED BY

DAVID O. SELZNICK

In Technicolor

ENJOY YOUR PICTURES IN COOL COMFORT!

SHOWING

TO-DAY

Cathay

TREASURE...TEMPTATION...

TREACHERY!

HUMPHREY BOGART

"Hoaded straight for honors!"

AT 2.30, 5.20,

7.30 9.40 p.m.

**One of the

best things to come out of Hollywood

NEW YORK 7917.

since it learned

to

talk"

TIME MIGADNÍ

REASURE OF SIERRA MADRE

WALTER HUSION-TIM HOLT BRUCE BENNETT JOHN IRISTORE HERRY BLANKE

Page 5Page 6