1949-01-14 — Page 5

THE HONGKONG TELEGRAPH, FRIDAY, JANUARY 14, 1949.

MORATORIUM MONEY LENDING CASE JUDGMENT

Judgment in the Moratorium money-lending case was delivered by Mr Justice Wicks at the Supreme Court this morning.

Plaintiff was Surjan Singh, of 12, Percival Street, Wanchai, who claimed $513.58 from Leung Shin-tek and Leung Shin-man, clerks of the Hong kong and China Gas Company, being the balance of principal and interest due to him under a joint and several promissory note dated July 3, 1941. At a previous hearing his Lordship did not accept the terms of settlement named by Singh and ordered the money to be paid into Court.

Arising out of the judgment Singh is to receive $172, plus four percent per month up to the occupation period plus four percent per annum up to the passing of the Debtor and Creditor Ordinance. The total is $267.58 and the balance is for the defendants. His Lordship held that payment on loans during the Moratorium shall be four percent per annum and not four percent per month as was the case prowar.

Lordship

Giving Judgment, his said: Thin summons arises out of a money-lending transaction in which the plaintiff, having lent the defen- dante a net sun of $172 on July 3, 1941, now claims the cum of $313.58, being made up of the capital plus three amounts of interest, the first covering a peri

period before the pati ese occupation, the second for the period of the occupation and the inst during the period of the Mora-

torium.

be

they become duo are payable if they | breme due and payable, on and at the Bank' of after that day, England rate current on the seventh day of August, nineteen hundred and fourteen; but nothing in this Proclamation shall prevent paymenta trinit made before the expiration of the

for which they were the month

a postponing

Lord

considered the general effect of a moratorium on વા claim for interest but it is een that the Royal Proclamation under consideration in this case provided

remarka for interest, so the oblter eta. On the general effect at p. 977, he said: -

Bre

"What is the position? The plain- tiffe have lent their money to be repaid on a given date; the war erials arises in ensues; a financial

intervenes the State consequence;

In order lo preserve the Bnancial' equilibrium; it then says that those who cannot pay may postpone their month. That 15 # ments for

btor. The given to the debtor. creditor had a right to demand re- payment of the money; the State said, "You shall not avail yourself of that, right; we will extend the time to the debtor, and give him a further mouth." Thin bema 10. funci

suming. I have already said, that

in this case there is no con.rack that In the event of the money not being repaid by the due date it shall bear Interest at rete agreed between the parties, it is, unrensonable to assume that the State intended that the per- раз son who gets the privilege must for it? If it is saki that the debtor money was being lent before the was to pay only at the rate at which date of the proclamation, that might

pro-

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Important Admission

Witness By

(2) If the due rate is higher than four per centum per annum such Interest shall be payable at the rale of four per centum per annum." What therefore in the amount of the

of assessing "debt" as on December 25, 1041, for Interest the purposes

"occupation perled" In

probably be a rate wholly PWD TRIAL: during accordance with Section 10 of the different from, and lower than, that

The plaintiff claims

when the financial crisis. interest 3, Ordinance?

to January prevod. It was for the purpose 3. 1942 at 4% per month for by of crisis that this

appears to the months and this

interest. The clamation was passed. In my judg Proclamation No. 6 of 1945 (then By

a claim for pimple

month simplo men

ment the reasonable view is that a Moratorium Proclamation) & mora-elnim of 4% per torium was proclaimed in respect of interest seems to be one which before person who got the extension and the occupation period would not

not had not agreed the rate of interest, all debts, Article 5 providing that:

transaction if he did not pay at due date, must result in the the the perlod DE

normally "During

under the Money pay the rale of interest then pre- moratorium, no rights, remedies or being re-opened

debt Lenders Ordinance. 1011 and that vailing." of any in respect powers

WELL FOUNDED effected thereby shall, at any time, amount of interest is accepted but enforced by this can only be up to December 25, exercised, or be

of

1941, that is an amount of $39, mak- process of law, solely by reason. non-payment as a result of the ing a "debt of $211, provisions of this proclamation; but shall prevent the nothing herein voluntary payment of any debt."

The Moratorium

Incorporated พล

Proclamation

the In

Len

1940.itorium

dinance. 1940 (Ordinance No. 23 that the Moralorium Prociarum

This Ordin-

How

The claim for interest during a moratorium, therefore, seems to be reasonably well founded and there Morato:lum being nothing in the WITHIN THE LIMIT The interest on $211 assessed in Proclamation which prevents in accordance with Section 10(2) of the terest accruing, there appears to be to about $31, no doubt that it should be allowed, First Ordinance amounts

but at what rate should it be allow- Schedule to the Law of Amendment and, the rate of interest claimed by ed? Applying Lord Reading's d'cia.

this heading

per (Transitional Provinlons) Ordinance, the plaintiff under 1048 and in November, 1943, by the being within

the limit set by the it seems that it should be 4% exercise of a power con

contained in the

Pro-Ordinance, his claim for $25.10 is Annum because that was the "rate the the Moratorium Ordinance, the

fore accepted. The amount of the debt of Interest then prevailing" on this

class of debts, at the date when

declared, therefore on September 1, 1948 clamation was repealed, but before

A rate wik this, in June 1940, the Debtor and

$236.10 and

it is on this amount

by the

Legislature some Or-

following the "occupation Creditor (Occupation Period)

must be deemed to have of 1948) was 'passe:l.

terest There is nothing in Ordinance No. 21 period" after ample time had been enjoyed for a consideration of con- trolling the amount of

beyond the chargeable on a "debt" during the of 1048 which extends the rate of anions at that time. The dificulty

"occupation "occupation period."

even though the language of is that it seems to be settled law ance, until the repeal of the Marn-

be said to be applicable to a debt, torium Proclamation. had a very the Ordinance envisages that debts that where no rate of interest can the onus is on the person seeking this Ordinance." be "unpaid at the commencement of

it to establish his claim; he has a In deciding whether

in- terest accrues during the Moratorium right to go before a Court and claim it, but he has no legal right to any amount, the period and if so the

definite amount--sce Swinfen Eady INTEREST RATES

Brst inquiry in, what is the effect | Geni

L. J. In Coats' case, Interest from 3/7/41 to 3/1/42 at on a debt when a statute lays down with the 4% per month for 6 months: $41.28; provisions which conflict interest for the occupation period at express or implied contract between 30.00 per

$150.00 per year for 3 the parties? This problem is as per- of to in- tinent

the construction years 8 months: $25.10; and terest from 3/9/45 to 3/1/49 at 4% Ordinance No. 24 of 1048 ns to the Proclamation; the month for 40 months: $275.20. Moratorium per

Tho cause was set down for former affected the amount of in- hearing on January 7, 1940, when terest and the latter suspended the enforcement by process of law. of the plaintiff appeared in person

defen- certain rights. The principle involved and, in the absence of the donts, stated that he had been paid appears to be beyond doubt, having by them the sum of $520.58, being been the subject of much litigation the amount of the claim c. $170 under what may be termed

Legislation both principal, plus $341.50 interest and Bent Restriction

here and in England, the rule being affects that in so for as a statute a contract by operation of law, or of Legislation the effect of which is party to a contract takes advantage

restricted application, and the plain tiff, now that he is able to proceed by process of low, demnaus in his Particulara of Claim interest:-

$7 costs.

"

The plaintiff's application to with draw the Summons was rotised, It being ruled, in view of the rate

be

thu

Mr Russ has addressed me on be half of the plaintiff and submits that the rate is 4e per month, but, having regard to all the circumstances of the case, and in particular to the assessment of interest by the Legis tature covering a period so nearly re- lated in time to the period in ques tion, I assess the rate of interest at 4% per annum for the moratorium period.

SAME PRINCIPLES

A prosecution witness admitted before Mr Justice Reynolds at the Criminal Sessions this morning, when the trial of two employees of the Public Works Department on charges of theft of Government stores continued, that it had been the practice for many years past for clerks on the staff of the electrical department of the Wanchai work- shop to be put down as chargemen and electricians, and paid for jobs on which they had not been working at all.

This statement was ellelled during cross-examination by Mr V. J. L.

TRUMAN GETS D'Alton (Counsel for Spary),

PAY RISE

Accused are Kwok Kwong, 47. Austin Spary, 50, foreman, and electrical inspector, Grade 1, both of the Pubile Works Department. They ere charged on 10 counts of larceny money by false pretences from the Bowling by public servant, one of obtaining

Green Club and one of conspiracy

Government defraud the steward of the Kowlcon

to

of

money.

Washington, Jan. 13-The Sennte

US$100.000 Truman's salary to today passed a bill raising President account. expense

those voting year and giving him a US$90,000

was 08-9. The vote annual tax-free against being Republicans.

The measure. the first to reach

Mr Percy Chen, instructed by Mr the Senate floor this season, carries crease of US$50,000 in the Pre and Spary is represented by Mr V. It also J. L. D'Alton, instructed by Mr P. J. a US$25,000 pay raise and an in- C..S. Russ, is appearing for Kwak. sident's tax-free expenses.

Appearing for the pro- Crown would raise the pay of the Vice Grimths. President, Senator Alben Barkley secution is Mr A. Hooton, and the Speaker of the House, Re Counsel, assisted by Chief Insp. J.

by Rayburn, Sam

Jolinston, and Det. Sub-Insp. D. C. presentative

MacPherson, of the Special Branch. US$10,000 each, and they also would accounts.

comprises The Jury, empanciled get US$10,000 expense

four men and three women. Their present salles are US$20,000 a year.-United Press..

to the defendants vary the settlement by repaying a certain amount out of his other monies, but that is no concern of this Court.

The witness, Ho Ting, foreman of of the electrical department the

said the place wes-in-a.mess" when he returned Wanchai workshop,

Colony. there after the re-occupallon of the

Further, not only is the evidence Mr Russ has attempted to lead in-

Some time during the latter half returned and re- admissible on the ground that it

of 1946, Spary

Witness agreed that client to this tends to contradict a positive state- ment rande by his

only

sumed charge.

There Court, but also because the

status was a slow question before the Court after the restoring the P.W.D. to its pre-war adjournment was whether or not the sta

the

The same principles I have set out apply to the transaction after the end of the moratorium period and assess the rate of interest from that

process. time to the date of the taking out of the Summons at 4% per annum,

was energetically engag of interest claim and paid under in fact to restrict or vary the pro-

Lc. an amount of about $3148,

of the Money-Lenders Ordin-Since then. without stopping, the third heading, that the money vision of a contract or implied con-

plaintiff must over- the

contract making an estimated total due of action be opened under Section was much urgent work to be done. paid into court, and the tract, to that extent

ance, s received

$207.50. This matter is before the ance, 1911, The

the work of the elec- of the

population, case stand adjourned for the pur- becomes statutory.

Court by virtue

Money come any difficulties he has created and owing to the large increas in RIGHT LOST pose of determining whether or qui

Lenders Ordinance, 1911, and I re- us best he can and I order that the trical department, as in all other of the P.W.D., had sum in Court be paid out, as to departments the transaction be re-opened under

the effect of the noen the transaction on the ground Further,

He agreed that greatly increased.

was a very section 2 (1) of the Money-Lenders Moratorium Proclamation was that that the demand for 4% per month amount computed in the way 1 have

interest

Ule moratorium indicated during Ordinance,

to the pipintiff, and any

Spary's responsibility 1911.

unpaid not by the debt remained

heavy one. After the adjournment Mr Russ, consent of the partics but by opera period is harsh and unconscionable. balance to the defendants.

л num- I It was a "debi" os

cald I would refer to здес

SOLICITOR. EXPLAINS who in the meantime ind been in- tion of law.

Witness admitted that (vidence relting to facta Proclamation, it is certain

been carrieci structed by the plaintiff, attempted defined in the

After Judgment had been deliver-

but stores to lead certain evidence relating to such a creature of the Legislation led by Mr Russ. Mr Russ called

this out without payment.

against merely facts, which I will refer to later, and that

he though then

stated at the hear that during the argument in

7. 1948 that he case in taking certain Illustrations had been issued

He agreed that the submitted that the correct must seek the assistance of the the plaintiff, who deposea that al-ed, Mr Russ said: May I mention her of jobs had.

Is signature. amount of interest aceruing during Moratorium Proclamation to preventing on January the Moratorium period was 4% per his claim being statule barred. The had been paid his cirm in

of woll aware of what was going on, nilhough he had compllet with the questioned either before the occu- original rate of 4% per month was

the Hongkong Bank with regard to and that there was no concealment. lost on the declaration of the order to pay the amount received

on current

At times there were as many as pation period or after; further that noi

accounts. That thought was very for the purposes of deciding whether Moratorium. it certainly was by the Into Court by paying in $520.58, in payment of Interest or not a rate of interest is reasonable passing of Ordinance No. 24 of 1948 fact the terms of the settlement was

far from my mind at the time und 160 to 80 jobs going on at one time,

and in such circumstances, it I can find no precedent of a mora the payment of $200,

had no intention of criticising the within the meaning of Section 2 (1)

torium which does not contain pro-

Bank. This" Bank has really gone Impossible to control the work of the Money-Lendern Ordinance,

Mr Russ made no secret of the 1911, one must have regard solely to visions providing for interest on the

debts affected but some of the dictu possible effect of this evidence, if out of its way and shown extra-outdoor jobs, witness declared. the circumstances existing at

of 2 (1) the ordinary consideration to its depol- Ordinance, 1911 time that the transaction was entered

tors and customers. into (in this case July 3, 1941).

to re-open a of interest was reason and if

Morniorum neriod.

Even

the now

plaintift

there was a passage which, if it full taken from its context, Inny look us

month, a rate which has not been i result is that even if the right to the land had received $520.58, and even though there was some criticism superior officers in the PWD were

the

RETROSPECTIVE EFFECT -Ordinance No. 24 of 1948, has a

it retrospective effect in that

in the case of V, & P. Cents, Llm V. j accepted. Section Direction der Disconto Gesellschaft Money-Lenders (1018) 65 LJ. 073 is of assistance. allows this Court

due

usen

such

.

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UNION

BEGIN

(Continued from Page 1)

BUILDING

stated, registered Unless otherwise arifetes and parcel posts close 30 minules earlier than the ordinary mall. If mails 215 close Before 10m registered parcel post close at 5 pm. on the pre- The President turned aside most.vious day, Mails are closed at Kowloon on the Palestine Central Post Once, half an hour earlier other questions

than the oPO elssing times. crisis, but he did support the State statement denying Department London newspaper reports that the Ave British planes shot down by the Jews last week were connaissance fight requested by the United States.. He nuld the reports definitely were not true.

on 1 TO-

Employees at the Wanchul work- Any attempt to suggest that it has shop were now paid on a different 10: For many years, the clerks other. workers ∙able then. It must be so during the That case involved the construction attlement only when it is "harsh | behaved in a most unhelpful and un-System to the earlier practlee, sald the of Hoyal Proclamation, issued and unconscionable, or is otherwise generous manner towards a deposi

under wagca drew their under the Postponement of Pay-

am sure your Lordship ments

different heads of jobs, and it was Act, 1014, which provided such as a court of equity would give fors and customers would be most in the office and

sellet." If on enquiry it is found that unfair. I

of the alleged saltlement that: gulates the rate of interest chargeable "Save as hereinafter provided, all so is not obtained then there is will agree with me that there e possible for clerks to have them- ARMISTICE TALKS OUTWARD MAILS

electricians on jobs on which they payments which have

record. no

Consequently, if this the case which would justify anvene selves put down as chargemen or

in drawing any such conclusion,

hud not been working at all. on certain debts during a period of and payable before the date of this Court came to the conclusion that

The trini is proceeding, His time which, as a whole, is past, and

which

Lordship: Yes Mr Russ, Proclamation or

will become 4%

annum during the Mora- per consequently affects rights which had accrued but which could not be exer- dut and payable on any day before

no to be by way of illustration only beginning of the fourth day of trium period was the proper rate, agree. I understood your remarks

a conclusion had cized by reason of the Moratorium September

hundred nineteen

plaintiff has and purely hypothetical. and effect because the

DANK STATEMENT Precinmation. In Section 2 (1) of teen in respect of any bill of charged just under 4% per annum.

The following statement was re- the Ordinance n "debt is defined fourteen

Mr Russ further submitted that exchange (being a cheque or bill

the Hongkong. Bank: as "any sum of money payable by in demand) which was drawn before the rule is that a plaintiff may, with- leased by virtue of a legal obligation and re- the beginning of the fourth day of draw an action at any time subject Until the passing of the Debtor and Or. coverable when due by process of August, nineteen hundred and four

la that money-lenders dinance 1940 the question of the law" "occupation period" means "in Aus

3. Programme Summary; 6.01, A Geral of all thin

0.30, Cantonese by win Programme; relation to the Colony, the period teen, or in respect of any negollable to the payment of costs. The result Creditor (Occupation Period)

Instrument (not being a bill of ex would be at liberty to demand, and interest payable on a pre-occupation

Given by Miss Lee Wal Lon L

The British Ambassador also was between December, 25 1041

S. Lee (Studia; 0.50, Xavier Cugat September, 1 1045 and includes any change) dated before that time, or take out Summonses, claiming in-debt had not been determined and In respect of any. contract made terest during the Moratorium period the interest that might be paid there-

and His Waldorf Astoria, Orchestra 7 asked, after his meeting with Mr ambiguity part of such period", and the before that time, shall be deemed at what Mr. Russ Informs me is the under could not be paid out in

In World News and News Analysis on Truman, about reports from abroad hart foulow 7.15, Sporting vision for computing interest on a

the Ordinance don Relay); day one

usual rate for pre-occupation and withstanding some

relations.. 110 "debt" during the

to be due and payable on "occupation

(Stutio): 238 Variety Band Box from that the Palestine crisis had transactions, 1.e. the wording of

(DUCTS): Anglo-American a. From ho Editorials" (andon Ite provides that:

Sir Oliver reportedly had assured and (about 60% per annum). I make notion. which is in accord with the the People's Police Indon

FATHER AT 100 (18) 4 Plat: "The 1) Any interest in respect of September, nineteen hundred

Capetown, Jan. 13.-Henry the occupation period on n debt touricon, whichever le the later date, comment on these submissions made terms of Section 10 (3) that where boy), 0.10, Bom in the King" by Dorothy merely smiled and shook his head.

the Film "Vantadia": 0.15. A story: nothing to hinder the Palestine peace

negro, be- tera comes the Copper" (whether accrued in or not) pay-tastead of on the day on which the by Mr Rusa because I accept the Interest was provided by agreement Bayurs.

Intentions against

came the father of a 'son' today. able by virtuo

obligation payment originally became due; bul statement of the plaintif made on or statute or otherwise it will pay in Heirs in the Kingdom" 887, Muse from Mr Truman that Britain would do

9.35, Concert presented by Peggy Coch no aggressivo

His wife is. 30-United Press. incurred prior to the commence payments so postponed shall, if not January 7, 1940, and I do not accept terest for the occupation period at

Albert Sandler's Tria and Jack Israel.

Senator Owen Brewster, mean- ment of the occupation period being otherwise carrying interest, and it his statement, made after the ad- the duc rate on all credit balances, Wade, read by Cilnord Davies (Studio) talks under way at Rhodes, and had Potts, a 100-year-old

speclic demand is made for payment journment, that he has only received whether such rate was one percent by

or more. That the Blank would, as Payne's Orchestra: 10. dio Newsreel 200,

called

for a Congressionat can aid programine, Senator Brow- telny: 10.35, Weather Report; Landen wen Berenaife" Pater Yorke while,

should decide Interest at a rule provided for agreement or statute or otherwise and payment is refused, carry in-

the There may be an explanation such suggested, plead that payment of in-

end Ille Concert Orchestra with Pauta investigation of reports that Britain ater sald Congresa

sending Into the Middle East) whether to reduce, British, old. (hereinafter called "to due rale') terest until payment as from

Giten and Steve Conway (DUCTS: 11: was Bank would

(BBCTS) and

unpali at the commencement fourth day of August, nineteen as that, after the Order was males terest would be against public policy 10.16,

aa tho

ink ott These Thinga“. of this Onlinines shall be payable hundred and fourteen, if they ba- on 7th January, 1949 and complied is entirely erroneous and completely

of payment Into unwarranted,

altempled tonover contemplate such an attitude. 11.15, Weather Report and Close Down planes given her under the Ameri- United Press, at such reio ás is provided by this come due and payable before that with. In respect.

day, and as from the date or which Court, the plainti Beotion.

and

peried" is contained in Section 10 calendar month after the day pay post-moratorium

or on the fourth day of compound interst at 4% per month the Bank fully recognises its obliga-

of an

TIKT

Kadin

by tenry

FRIDAY, JANUARY 14: -Closing Times By Ale Shenghai, Nanking, Ilankow.. Tsingtao. Pelping, Taipeh, Swatow and Amoy, 330 P.m

Manila, Honolulu, USA & Canada, pm. Air Perect, Posts for Manila, Honolulu, and USA, (CPO) 434 p.m.; 400} $ p.m.

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Page 5Page 6