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THE HONGKONG WEEKLY PRESS AND could possibly give it at that moment. So nothing quite touching the present case. Then he should take a little time to look into the by section 16 a definition was given at some Ordinance and see whether Mr. Slade's ob-length of the word nuisance as used in the jection › was well founded or not. The matter Ordinance. Amongst matters which were de being an important one, as he had said, if the fined as nuisances within the meaning of the Attorney General or Mr. Blade wished it he Ordinance were "Any act, omission or thing would refer the point for argument before the which is, or may be dangerous to life, or injur- full court.
rions to health or property. That was the only matter which seemed to touch the present point.
Counsel expressed as willing to leave the matter in his Lordship's hands,”
Bis Lordship announced that he would give... The Attorney General Section 16, sub-sec his decision o
on the following day.
tion 56, deals with surface-scavenging, including side channels.
April 21st.
His Lordship-No doubt that that would give them power, I suppose, to make bye-laws for the cleansing of side channels, and so on.
Mr. Slade said that bye-laws had been made
The hearing of this case was resumed and his Lordship gave his decision on the point of lawunder that section. raised by Mr. Slade, the prisoner's counsel, the previons afternoon: --
His Lordship said it was quite clear with re-
attach importance to abou channels,
April 23, 1903.
His Lordship, said that the latter part of the section read In all ench cases the ground oc- cupied must be enclosed with a boarding for the protection of passengers, and due care taken that the side channel shall be in no way obstructed by such boarding or by any building debris or building materials; nor shall the pave ment, side channel or concrete covering of any public thoroughfare be broken up, or into, by the excavation of holes for the purpose securing any boarding or scaffolding holes." There was a specific direction there that in the course of the erection or repair of A building due care was to be taken that the side channels were not to be obstructed by the boarding or by any building debris or building material. No doubt on the face
of it
gard to these powers that they, might have been looked as if this indictment was contravention an
exercised in a very different way. The question was whether they had been exercised. Then with regard to the definition of the word "puisance" contained in section 16, the A- torney-General draw attention to para graph 5, which defined among nuisances
His Lordship said that when this indictment was first read Mr. Slade, du behalf of the de- fendant, look exception to it on the ground that it was too general in its terms and did not set forth the act in respect of which the conduct of the public servant (Inspector Wilmer) was said to have been influenced, or proposed to be influenced. After argument he supported Mr. Slade's objection and directed the indictment to be amended by setting forth the particular act in respect of which the conduct was said to be influenced. That was done and the indictment now quite clearly showed what were the matters in regard to which the public servant was acting, and in regard to which the defendant was alleged to have sought to influence his conduct. But Mr. Slade now took exception to the indictment, as amended, on the ground that it did not show any offence engnisable by the law-that thestatement of particulars embodied in it now showed that the public servant was not acting within the scope of his powers, and, that in fact he was not for the time being a public servant at all, and, therefore, an offer of a bribe to him, in respect of that matter, could not be said to influence his coudnet as a public servant. It would be proper to consider what would be the effect of the indictment as it now stood. It set forth that Inspector Wilmer, the prosecutor, was a public servant and specifically held the office of Inspector of Nuisances; that the defendant was engaged in certain building operations in Victoria, and that on the date in question pro- secutor, acting as such public servant, requested the defendant to remove certain obstructions of the nature of building materials which he had placed in the street, these obstructions being apparently connected with the building opera- tions, and that thereupon the defendant offered to the prosecutor a trite of. £5, with a view to influence his conduct as such public servant aforesaid in reference to his action in regard to these obstructions. In regard to his action as regarded these of structions it would be necessary | did not find anything which bore directly on the Ordinance he could not find that
|
Any accumulation, or deposit of stagment water, sillage-water, macnre, dirt, house refuse, or other matter. wherever situated, which is unhealthy." Of course that clearly pointed to filth and so on in a general way, but the words "other matter "might be taken to include other things, but it must be subject to the proof that these things were unhealthy, and in this case if there had been an al legation in the indictment that these ob. structions were there, and were unhealthy it would have made the indictment correct in point of form, but it would have been subject to the proof that the sand and binding material were really unhealthy, and the indict ment would have failed. The same observation applied to paragraph 9, which said, Any act omission or thing which is, or may be, dangerous to health or property." There again, if these obstructions had been alleged to be injurious to health or property, they would have been nuisances within section 16 of the Public Health Ordinance of 1887, and the indictment would have been again cor. rect in point of law, subject again also to the proof that these things were really in point of fact injuricus to health or property. But no endeavour was made in the indictment to bring these obstructions within the meaning of the word "Nuisance as defined in section 16. They were dealt with as nuisances of another character altogether. Under section 12 of the Public Health Ordinance of 1887 Standing Orders had been made by the Sanitary Board for the guidance of Inspectors of Nuisances in the performance of their duties. He had looked carefully through there Standing Orders and he
on the trial of the indictment for the Crown to this present matter-nothing that gave power prove that the prosecutor held the office of In- to the Inspectors of Nuisances to request the spector of Nuisances and that in requesting removal of, or in any way to deal with, obstruc- the defendant to remove the obstructions in tious on the streets simply as obstructions. question he was acting within the scope of his Turning to the Building Ordinance of 1889 powers as Inspector of Nuisances. If they his Lordship said that that Ordinance, of failed in that proof then they failed in sustain course, was mainly, if not entirely, concern. ing the indictment. Mr. Slade alleged, on an ed with the question of buildings in the examination of the law relating to these matters, colony and there was not the least doubt that it appeared that the action taken by the the officer charged with the carrying out, so to prosecutor, was not with n-the scope of his speak, of that Ördinance, was the Director of powers as a public servant, that was as an Jn. Public Works, who, he supposed, was the Ear- spector of Nuisances. It would be advisable veyor General, as be was formerly called. Sec- to examine the Ordinances bearing on this question 57 of that Ordinance provided," No public tion, and one naturally turned. in the fist in stance to the Public Health Ordinance, because an Inspector of Nuis»nces was an officer of the Sanitary Board and was no doubt pisma facie charged with matters relating to the reserva- tion of the public health. By section 9 of the Public Health Ordinance. 1887, provision was made for the appointment by the Governor of Inspectors of Nuisances. Nothing was there said a to their powers or duties. By section 12 power was given to the Sanitary Board to make Standing Orders, for the guidance of its officers, amongst those officers being, as be had already said, inspectors of nuisances. By section 18 power
1 to the Sanitary | Ordinance said Board to
and to
mention o removal of obstructions
streets;
pathway, or thoroughfare shall, during the erection or repair of a lui.ding be occupied by a hoarding or scaffolding or by any building | material whatever except by authority of the Earveyor-General, who may grant such author- ity on a written, application and upon such con- ditions as will provide for the safety and con- venience of passengers and the occupiers of ad- joining property," eto, No doubt this was the very caso that was contemplated by the indictment. That was to say there were building opera going on, there was a public pathway thoroughfare occupied by building
the operations during the
state of things
| mót take place hout the minetion in a lth. of the Burveyor General, Dire
Public Works.
of 1: Theis rmer Gazeral (Mr,, W£
Goodman-The latter part of that section
That
of this section. Then by section 77 of the Ordinance nuisances under the Ordinance were defined, and amongst those nuisances was the following:-"Every act, failure, neglect, omis sion or refusal, whereby any section of this Ordinance is contravened." It was quite clear then that coupling Section 57, with Section 77 paragraph 3), leaving or placing building mat- erials in the side channel, while a building was being erected or repaired, was a nuisance within the meaning of the Ordinance. Then Section 78 said what was to be done in the case of such nuis- ance-"In every case of a nuisance under this Ordinance, the Surveyor-General shall in the first instance serve a notice in the form con.. tained in Schedule E to this Ordinance on the owner of the building or work in respect of which complaint is made, and such notice shall specify the nature of the nuisance and the manner and the time in which it is to be abated, and in the case of refusal or neglect to the requirements of such nature, the Surveyor- General shall summon such owner before Magistrate, who may make an order directing such owner, whether he appear or not to the summons, to abate auch nuisance within a time to be fixed by such Magistrate." was the special procedure pointed out, and of course there were further proceedings which may Le taken in default of compliance with the notice. The observation to be made with regard to this provision was that, as he had already said, this indictment seemed framed to meet some obstruction of the channel, or had the effect, at any rate, of meeting an offence con- stituted by the Buildings Ordinance of 1859. The question rose whether, that being, so, the offence being contained in that Ordinance, si Inspector of Nuisances—an officer of the San- itary Board had any jurisdiction or power h offence.. He confessed that in respect to such he was unable to find that the Inspector bad any such authority. On examination of inspectors of nuisances— (fficers of the Sanitary Board were vested with powers in any way with regard to these nuisances or in regard to any matter under the Buildings Ordinance, and it would be necessary, of course, that legisla- tion or regulations should be made with a view to vesting them with powers of that kind, The Buildings Ordinance, prima facie, was outside the Sanitary, Board's jurisdiction, and if they were to have powers, under that Ordinance. It would be necessary to confer those powers peci fically. Althongb, therefore, this indictment might show an offence under the Building Or, dinance, it did not show that the prosecutor, or
as, was acting in pursu Inspector of Nuis
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of any powers.co was one other, refer, and that Cleanliners Ordinar ance dealt with a which might be desori
pol
ces.
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from
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