1949-04-22 — Page 5

THE HONGKONG TELEGRAPH, FRIDAY, APRIL 22, 1949.

JUDGMENT FOR RESPONDENT IN CANOSSIAN INSTITUTE CASE

Possible Appeal To Privy Council

Judgment for the respondent (Canossian Institute) was deli- vered by the Chief Justice, Sir Leslie Gibson, sitting with the Puisne Judge, Mr Justice Williams, in the Full Court this morning.

The appellants were Ping Shek and Karel Weiss, tenants of the ground and second floors respectively of No: 34 Caine Road, who appealed against the decision of Mr Justice Reynolds in favour of the Mother Superioress of the Daughters of Charity of the Canossian Institute, who was given possession of the premises on December 20, 1948.

been

In other words, Me - fer's construction involves the preposition that the Legkin- ture inserted action 0 In order matters to provide for any

We which had overlooked. should be very loath to altri- bute to the Legislature such n In its own cm- want of faith eleney unless we are driven to do so. But when the long titie is closely examined, it is clear that the modifications which it

estricted in the manner suf- On the gested by Mr Polter. "Their Lordships agree that contrary the long title leaves the the Governor-General-In-Coun-word "modifications" to be cou- cit could not, by any form of strued at large.

erente in India, ennetment, and arm with general legiats-

Mr Eldon Potter, KC, In-sentative Legislatures" in the Burah where Lord Selbourne at contemplates are not in terms structed by Mr M. A. da Silva. Colonies to make laws, respect- p.905 said:- appeared for the appellants and Ing their constitution, powers. Mr P. A. L. Wright, Instructed and procedure. His point was

that, by implication. The Legis by Mr B. N. Cooper, for the re-

lature of Hongkong (which is spondent,

not had

a Representative Legisla The premises

ture for the purposes of the exempted by the Governor from the provisions of the Landlord Act) did not have this authoritive authority, a new legislative effect, that when the Ordinance

power not crented or authorised and Tenant Ordinance. 1947, on ty,

of the

by the Counclis Act," tlic recommendation

But, on Tennney Committee under the of the Ilon. Leo chairmanship

ne, Sir K. C. d'Almada,

After the judgment had been

lodge v. read, the Chief Justice said that

132 there remained the point of stay of execution.

Mr Potter said he was agree. days, adding. able to fourteen

We may apply for leave appeal to the frivy Council,"

The

to

In the courre of the hearing, however, Mr Wright (for the respondent) drew attention to the recent decision of the Privy Council, ns to the constructie of section 5. In the case of

and

Company Chenard

the other side of the Barnes Peacock,

in

The Queen, said

at

con,

alone.

for

Mr Potter's next point is, in and the Schedules which form part of it are examined, it will

be found that the Legislature dictionary has crented its own

word the n to the meaning of

in the long title "inodifications and has thereby restricted, the "It was argued at the bar that scope of section 8 in the man- ar does not, in our opinion, follow others v. Ariasol 05 TLR 42. legislature committing importer for which he contends. It The effect of that decision is tent regulations to agents that recilon 5 is not a disabling delegates elfaces itself. That is that the instances of modifica- section in any sense. In the not so. It retains its powers in-ons in the Ordinance and the wherever 11 Schedules are exhaustive of the inodiflenflons contem- light of this interpretation, Mr tact, and

the Legislature in Volter

that Mr Wright: No objection, my

conceded

the pleases, destroy the agency it has sort of Validity Colonial

Laws

Act created and set up another, or plated by Lord,

Chief went out of the Giving Judgment, the

picture and take the matter directly Into his rection B.

But let us now examine the own hands. How far I shall Justice said:

that the real issue was whether

of subordinatt

light of the appeals arise out of two section 8 of the Ordinance was seek the aid nctions for possession of their pires the powers conferred agencies, and how long it shall legislation in the

has crented its own dictionary. ground floor and second floor of

The drafting of the Ordinance The plain on the Legislature of Hongkong: continue them, are matters for contention that the Legislature No. 3 Chine Ronil.

31

by paragraph VII of the Let-each legislature, and not

For In each action wi The

ters Patent of February 14, 1917. Courts of Law, to decide."

Again, in Powell v. The Apollo is not entirely consistent.

the word "modifica- Mother

the which reads as follows: Superharity

Candle Co., Sir Robert Collier, example,

llons" in the

the long title becomes of the Daughters of

"adaptations and modifications" Canossion Institute (Hongkong) "VII. The Governor, by and at p.201 said:

sections 3, 4, 5 and 7. If And

the defendunts were Mr with the advice and consent of

"It is argued that the tax in in Legislative Council, may Ping Shek and Mr Karel Weiss. the The defendants were monthly make laws for the peace, order, question has been imposed by Mr Putler's contention was cor- of the the Governor, and not by the reet, "adaptations" would have had been the more appropriate word who Legislature. tenants of the plaintiff and had and good government

the to use throughout. But however been given notice to quit,

Colony,"

power to impose it. But

the Schedules do nf the

Mr Potter's con- Privy duties levied under the Order in this may be, HELD EXEMPT

The decision Ceunell was not entirely with Connell are really levied by the not hear aut

Governo: The issue in each action out nail to Mr Potter because authority of the Act under which tention. See, for example, the

to the the Order is issued. The Legis power given to the able to point which is relevant to these ap-

be was

tain events, all or any of the peals was whether the premises following passage in the judge lature has not parted with its by Schedule 1 to repeal, in cer-

perfect control over the Gover-

the power. of provisions of the Proclamations were exempled from the pro- ment of Lord Reid:

to make

Or-ho, nnd has tection of the Landlord & "A

DOWS

prace, order course, at any moment, of with Nos. 19 and 20. the dinances for the Tenant Proclamations of

of a drawing or altering the power

This brings us to Mr Polter's British Military Administration and good goverment

they have entrusted to: marise al-' which

last point. in connection with which came into being after the coleny does not

him." constitution or

his second line of argument, theleration of the Japanese occupation of

which is that the modification POWER TO AMEND Colony. The actions were heari rowers of the colonial Legisla-

nude by the Order in an inter- before Mr Justice Reynolds who ture."

Now clearly there is nothing ference with the rights of the; held that the premises were so

which takes subject and that section B ought This case was also of seme exempt and gave Judgment for:

be construed 25 though the plaintiff in both actions. It avall to air Wright who are in the Ordicande

contained such words of further away one lula of the power of to

All that the is from this decision that

the Legisinture.

would ns

pre- the judgment Legislature has done in the Or- limitation present

Governor-in-Council passage lodged,

Caftown-

dinance is to give to the Go-vent the

body from effecting such UFF inter- On the restoration of civil

"Such a power has been heldvinor-lo-Council a government in Hongkong. the Landlord & Tenant Proviams to authorise the utmost discre which Mr Potter contended had ference, tions were preserved by

thetion of enaciment for the at-ucially, through its members, a power, not to ture self-a Law Amendment (Transl alament of the objects painted controlling voice in the Legisia. legiskte generally, but to amend Pro- certain spervified military clamations. We are unable acree that such a delegation was ultra tires the powers of the

appeals

the our

have been

attention

ก

л

tional Provisions) Ordinance, to," and a Court will not in

quire wheller any particular 1910. which

shall refer We

ennelment of this character does to ពន "the Ordinance." The sections

Ordin-in fact promote the peace, ar- the of ance with which we are direct-der or goed government of the

colony (Riel

The Queen Legislature. ly concerned are sections 3 and (1885) 10 App. Cas. 075. at B which read us follows:

3. The Proclamations of the .670)."

British Military Administration

Me Potter,

V

putting

fact

set out in the first column ofrase at its highest.conthat-His Majesty hus-not-dls Schedule I hereto shall have

tenderi that, by section allowed the Ordinance would effect as if the same had been

of the Ordinance. the contained in Ordinances enact Legislature had turned cure any want of authority to

Legistature of the the Proclamations in the First P ed by the Colony coming into operation Schedule into Ordinances, and

from

which

any

bs from the respective dates, that any attempt by the Lexis

such Pro-lature any,

for to provide clamations ΑΓΙ expressed to amendment whatever al an take effect or as from the re-

Ordinance by the Governor-in- spective dates of promulgation Council must be bad. of the said Proclamations and shail as from the enactment of this Ordinance have effect sub- ject to the adaptations and modifications contained in the second column of the schedule.

We turn now

to Mr Potter's

second line of argument which! is that the Order is ultra vires the Ordnance.

SIDE GLANCES

2:26

By Galbraith

SHOWING

TO-DAY

COM. 1949 BY REA BETVICE, INC. T. M., RED, U. 3. PAT, DIY,

"It happened at Sixth and Main-when you were tenching mo to drive, you didn't say that was one of the very dangerous stop streets!"

UNITED EUROPE

FLAG FLIES

OVER LONDON

2,000 Delegates Meet

At Guildhall

London, Apr. 21.-London's historic Guild- hall was crowded today for a public meeting of the Euro- 2,000 delegates of the Conference of pean Movement.

The flag of the United Europe Movement-- a brilliant green letter E on a plain white ground -was hoisted over the building—the first time it had flown in the city of London.

Greeted by the Lord Mayor, "But unless

fo- Sir George Aylwen, the delegates voured

Amery said, were addressed by 31. Andreabolished," Philly, of France. M. Paul Van "such a preferential system ap- Zeeland, of Belgium, and Lord, plying to a limited area would Havana enine up against the Layton of Britain.

Sir John Anderson, former Charter". Chancellor of the Exchequer,

the

most nation clause

Mr

presided.

onc

PENAL STATUTE.

Plans for an "Industrial Par- lle cited, as instances of the

Ilament" of Europe are expect- extent to which the Courts will

Introducing the speakers, heed to emerge from today's pro- to 0 to preserve the rights

the subject, the declared, "I think we have coedings of the European Move. liberties of

of State for Home Affairs

What Ex render of sovereignty. cases of The King v. Secretary heard far too much of the surment's Economic Conference.

Today the conference split into until which, five committees parte O'Brien 1823 z K. B. 301,ure can be and must be is a in view of that we have said. Cox and Hakes 13 A.C. 500, voluntary nbatement of the late in the

the evening, freely dis- It is unaccessory for us to ex-and In re Bunter 1015 1.K.B. claims of sovereignty such as cussed problems of forming

econumy

into inter- European involved in every his press any opinion as regards the 21. But we cannot regard these are

before us. The remedy-by question of whether the

cases as parallel to the

single market for labour, pro- case national agreement."

duetion- -and. exchange.To- Habeas Corpus is the very

M. Paul Van Zeeland, former mor

morrow further sub-committees Minister, SUE will examine. these problems corner stone of the liberty of the Belgian Prime subject.

gested that the meeting should more deeply and try to agree.

The "take a frank look at the spot

Agricultural Committee The Voxatious Actions Act,] we are in.”

today discussed agriculture's 1898, is a highly penal statute which enables à éltizen to bel

"It has been evident." he con- parl in the recovery of Europe, He began his argument by deprived of one

of his most tinued, "that it is impossible to Specches reflecfed a feeling that ngriculture had been neglected. contending that we must con- fundamental rights the right of solve our problems utong nar-

--Reuter. strue section of the Ordinance secess to the Courts. The rights row national lines. It is impor in the light of the long title of of a statutory tenant under the sible for any Power, even for the Ordinance which reads as Landlord

Tenant Pro- the biggest Power, to ensure clamation are in a very uit peace along unilateral lines." We find it unnecessary to ex-follows:

Lord Layton, category. The

The conferring

a distinguishca press any opinion on this pro-

"An Ordinance to provide for

the economist, declared that pro- the Legislature on position because, in our view, the incorporation into the law it is founded on a inconcep. of the Colony of provisions

Governor-In-Council

gress in Europe could only be power in exceptional cireum- founded on a compromise be tion of the position. The Pro-

intertal Proclamations and mat-

statutory Europe. clamotions. In their origin,

promul- stances, to deprive

Rangoon, Apr. 21-A Cathiny were ilme add to alter or amend from Ordinances.

something very different ter done thereunder

They weregated during the British Mili-tenant of his rights as such and

to his contractual Mr L. S. Amery, former Er-

Pacifle aircraft on a chartered tary Administration together leave him

fish Minister. submitted 1 flight over the delta yesterday the provisions of the Schedules Proclamation of a military ad- with matincalions of such pru- rights is not a modification of

the Social and was demaged by ground fre hereto or any of them."

ministration called into being

the near the rice port of Bassein, 90 In purported exercise of the in the turmoil following the re-visions and to amend such Or-the Landlord and Tenant Pro- resolution to

afternoon miles West of Rangoon, efficial can hold have been outsirte Conference power conferred by section 8 occupation-a type of authority dinances as are affected by such clamations of a kind which we Commercial Committee of

1 incorporation." a Legislature

the contemplation of the Legisla recommending that the most cources reported. an: Order of far removed of the Ordinance

the favoured der elvil government. is Mr

enacted ture the Governor-in-Council mile on September 6, 1846 nad

Ordinance and we are not pre- pured to read into the Ordinance tion

low Notifica- published as Gazette

words which would exclude it- tion 388. We shall refer to this an "the Order Paragraph 3 of

words which are not there. Order provided, inter alia, as follows:

said

1. The Governor-in-Counell may by Order from

the

nx

the advice of

lime to

was

"The Governor acting upon

under

дисс.

MISCONCEPTION

from

reslored, and

the

Ordinance (reading

the

Wright argued

ferent

of

thai we

when

and

of

tween

Eastern

tor

ments.

this

and

Western

1-

CPA Plane Fired On

The starboard engine was put aut of commission, but the air- craft landed safely at Bassein and none of the passengers wat injured Associated Press.

21-

nation elnuse: be dropped from internu-

agreements to a fair assumption that, in the should not regard the scope of circumstances in which they section U as restricted by the

bilateral agree- they could not were issued.

jlong le because the Ordinance hope to reach the standards of dealt with a number of matters completeness and permanence and the Legislature could not

The resolution, which stimu-] On the contrary the Legisla-Jated the afternoon's discussions, one associates with an Ordin hupe to cover them all in the

may well have contem-said that "the Trade Committee long Utle. We agree that the ture

conditions considers that European antions MURDERER TO as. the Colony got should be free to develop co- They lack then the sanctity of long title does not strictly cover plated that, in the

the prevailing Exceutive Councli

back to normal, the Proclama-

every possible PAY PENALTY may, on the recommendation of an Ordinance. But they had toll matters dealt with in

lions of the British Military Ad-peration by

means and to the fullest extent the Tenancy Committee that in be given some status when civil Ordinance.

which were not

that its opinion exceptional elreum-government was

It does not, for example, cover ministration

Johannesburg, Apr. nomic and social arcas allow. stances

Samuct Odendant, 20, of Jehan- to exist which make the what the Legislature has prosection 2, which repeals the Pro-repeated would require modifica- their several political, eco-

time, ..and may

The exercise of the discretion hereby vided in

most favoured nation nesburg, was today sentenced to conferred

in clause is opposed to that prin- death for the murder of an desirable, Brant it as a whole) is not that the clamations, etc., of the British tions from time

ilitary Administration which well, have been prepared,

to entrust to

ciple insofar as it imposes a Vcto American businessman Samuel exempilan in any particular Proclamations shall have

are not expressly kept alive by those all or any of the full status of Ordinances but are Ordinance. But the long the

Cor-in-Council ense from

arrange Morris Schiff, 54, and an Indian provisions of this Proclamation that they shall have that status thle specifically includes among task of making such modifien- any co-operative

the to the power of

We are therefore And any amendment or modif- subject

deal the purposes of the Ordinance, tions.

of modifying the opinion that the Order was not its whether callon tiereof upon such terms Governor-in-Council to

and ultra vires the Ordinance. as appear to him to be just and with them under section B... the purpose

Proclamations kept alive

It follows that these appeals Given that the Proclamations that is the very purpose of see- It was in pursuance of this now enjoy only this qualified on 8. We think Mr Potter's must be refused with costs and paragraph that the Governor-status, it remains to consider, on contention is correct. in-Council, on August 1, 1947, general principles, whether the

next contention Mr Potter's purported to exempt the pre-delegation of legislative power mises which are the subject of by section 8 is sanctioned by the was that the effect of the long there pppeals,

Letters Patent. It is settled law title was to limit the scope

has section 8 to such modifications that a colonial legislature

thons were strictly V

equitable;"

TWO ARGUMENTS

of

we so order.

the

of

some power of delegation-see, of the Proclamations kept alive Prison For Life

for example, Powell

necessary for

by

L'At 2.30, 5.15,

KING'S. 7.20 & 9.30

BETTY GRABLE

(that figurel).

VICTOR MATURE

(that hunk of mani)

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“THERED SHOES"

Color by Technicolor

concessions or priorities or wallet at John mesburg's Charl- From End To End Radio Hongkong

preferences

in quota

+

bulk ton last November.

thai On Horseback The evidence showed

to Mr Schult's buying measures, unless thero Odendaal went

shot the American, later shoot-o a complete eustoms union. are carried out to the length of room, demanded money and then This, for political as well using the waiter when malting his economic reasons is not a prac-

get-away-Reuter. tleable policy

any near future."

in

"REVOLUTIONARY" Special Jet

Fighter Plane

•

10

HKT.

ON

0.00 Programme Bummary: 0.01, Jazz Classics: 0.15, Evening Melody: Londen, Apr. 21,--A 24-ycar 4.30, Cantonese by Radia given_by Ginmorgan woman, · Mrs Miss Leo Wai Lân & 8. K. Lee 0.50, Sports Preview Margaret Jones, is riding alone (audio);

(Studio); "Muric Lovers Hour** on horseback from Land's End, Classical Request Programme pre- the southwestern Up of England, ented by Yvonne Charter (Studio): to John O Groats, In northern-500, World News and News Analysts London Relay); 18, "Looking At most Scotland.

Britain"--Kent--The Garden of Eng- She set out from Land's Endland. by D. F. Attken (BBCTS): The New Concert, Orchestrai yesterday, with all her needs.

0,00, Fram, the EdBorials" (London by Colled "revolutionary"

packed in two big saddle-bags, rioy) 0.10, Hong Kong Dances 21.Gregorios Athens, Apr.

Guzman and Hi some delegates, Mr Amery's re-

They include an ex-Army blan-To"-Eddie Mr Potter (for the appellants) Apollo Candle Company, 10 A.C. the purpose of fitting them into

questions Greek joursolution provoked as it Stachtopoulos, a of the Colony

ket which she may use to sleep chestra from the Ritz Ballroom, developed two lines of argument 262, Hodge v. The Queen 9 A.C. the law

found guilty whether Britain would be pro- London, Apr. 21. qut of doors in fine weather, Mrs Detectat, Cora Baltecer: 5.B. The in Fiction": "road My concerning the exemption. In 117 and The Queen v, Burah 3 existed immediately before the ralist, was today

Davies. the Orcf complicity in the murder of pured to give European coun- Vickers-Armstrong Compuny

(Studio); to,00 the first place he faintained A.C. 800-and the only question coming into force of

American tries Mr George Polk, an

most favoured

announced tonight, that it has Jones is on the same mare she Clifford

of Rumsky-Korsakov; -10.30, “Birings that section of the Ordinance is whether the particular dele-dinance.

radlo company'a corn

to Sunderland-Router.

with. Wingo". The Melachiinu. Atrings was ultra vires the powers of the gation provided for in section 8

Legislaturd whose body was foundent, treatment, putting them on a built a special jet fighter Mans I rode last year from Glamorgni A Short Programme of the Murte

floating

with members level

of the for the British Government. Now, when the

with Milleent Phillips and Wilfred Legislature of the Colony, In the falls on the right side or on the

Harbour in May Commonwealth

"designed to Investigate the enacted the Ordinance, it must in Salonika

Barnes (ORDS); 11.00, Radio News second place he maintained that wrong side of the line.

Reel (London Relay): 11.15, Weather been last year,

told Reuter to folems associated with fight at Stachtopoulos Was Mr Amery

Report and Close Down, be presumed even if nostion & was Itself

of Imperial and beyond the speed of sound." We are of opinion thut, in de familiar with the existing Jaws sentenced to life imprisonment night that because intra vires, paragraph 3 of the

It had decided He was one of four people Preference Britain, could not

The

new plane is n swept- Order was ultra virca the pow-ciding this issue, the question we of the Colony.

should ask ourselves is whether, which Proclamations it wished tried for the murder. Two men, enter any European customs ck wing development of a

Coffey, Junior, Mexico, last, night, "thờ” United ers conferred by section

In Robert Lewis which single-seat machine As regards: Me Potter's by the delegation, the Legis to keep alive and, if Mr Potter's Evangelos Vasvanns and Adam unlon,

bus wholly

But if, instead of an all-out February last year established aged 30. Democrat Representa-States Air Forco has announced. or partly construction of the long title is Mouzemides, tried in their ab-

An Air Force Reserve Omoer, first line of argument, he ori- lature

itself 100. Street correct, it was. In a position 10 rence, were condemned to customs union, a system could new international speed record tive of Johnstown, Pennsylvania, ginally placed considerable re-efface

An inzet out once and for all the death. The fourth accused, the be evolved of preferential tariffs over a hundred kilometres close was killed instantly when his the Congressman was on a cross-

profielenes Dight llance on section 5 of the on Ultra Vires P420. Colonial Validity-Act.stance of what would be efface modifications of the Proclama mother of Stachtopoulos, was between members, Britain could circuit, of 564.8 miles an hour Shooting Star jet fighter plane country

|acquitted:=Reuter;"

certainly joirs.

- | Reuter, a busintangan

crashed at Albuquerque, New Router. 1855, whian Surables Repre- ment is given in The Queen v. tons which were necessary.

8.

have to

nation

F

Proficiency Flight Ends Fatally Washington, Apr: 21-Mr

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