November 16, 1903. Cheung Wan Chow, the defendant, then gave evidence.
Mr. Beavis having addressed the Court, His Lordship said that, as he had expressed his opinion before, there was no direct evidence of malice at all, but the question was -Was there any reasonable and probable cause from which he could iufer malice? His view was that on the plaintiff evidence alone, with- out anything else, there was reasonable and probable cause for is arrest. The facts, which he had to take as far as the evidence went in this case, were that the defendant WIS master of the shop in question. He went to Canton and ou his re urn foond everything deared, ont, private effects and all. He got some information from his fokis that Yus Kwa Ting and the plaintiff were mixed up in the removal the goods. That was his statement One of the fokis said that when the goods were being removed plaintiff was checking them, which was some- thing to prove that the foks did say something abbut it. When te defendant fund he could not get anything out of Yne Kwai ting he took ont a warrant against him, whereupon plaintiff went to defendant and said. I have heard from Yuo Kwai Ting, and if you drop proceed. ings against him you will get your boxes back That would be quite sufficient for him. He would have said, "What have you got to do with it? Why does not he write to me and say he will give me my goods? I have the warrant against him." Instead of that Le wrote to a man who, it seemed to his Lordship. was Yue Kwai Ting's accomplice, aud he thought therefore there was reasonable and probable cause for the arrest of this man Su Hin Sheng. Judgment for the defendant with
costs.
The Court adjourned.
Thursday, 12th November.
IN APPELLATE JURISDICTION.
BEFORE THEIR HONOUS SIR WILLIAM M. GOODMAN (CHIEF JUSTICE) AND A. G. W18 (PUISNE JUDGE).
LAND COURT APPEAL CASEX.
357
The Paisne Judge-There is no doubt now at any rate.
CHINA OVERLAND TRADE REPORT.
The Attorney-General--Yes. Certain claims, | and leave it to the other side to bring evidence he said, came before the Land Court--the claims in reply: His Lordship added that he was not in question. The Crown was not represented quite clear that the Crown could not on either of these cases coming before the Land have appealed under the old Ordinance, Court. Under the law of this Colon, both by for the words of the Act (Section 16, 18 of 1900) virtue of the Laud Court Ordinance and of the were that "any claimant" might appeal. The Convention with China, all the land in the New Crown was the claimant of the whole of the Territory was the property of the Crown. The land in the New Territory, and the word Crown therefore was interested in every case
"claimant" was not defined. He would not express which came before the Land Court. Now, the any formal opinion on the point just then, but Crown was not represented, because as it he thought there was a question whether the appeared from the affidavit of the Crown Crown could not have appealed under the old Solicitor, "no notice was received by or on
Ordinance. behalf of the Crown on the hearing of the above claim in the Land Court." The Crown had no notice and was not represented. They were not liable therefore to be charged with egligently standing by and not appearing as they should I have done. It never had been the practice to give notice. and until it became apparent from certain decisions, which raised most important public questions, it had never been considered necessary that the Crown should be represented. Therefore he did not say that the claimants did anything out of the way in not giving them notice. The Crown appealed against the de- cision of the Court below on the ground that it was erroneous on a question of fact, namely, the construction of the foreign law of China; the evidence adduced was fraudulent, and they were prepared to establish that allegation,
On the 25th August the Chief Justice granted an application by the Hou. Attorney-General, Sir Henry S. Berkeley. for leave to appeal to the Full Court against two decisions of the Land Court. In one caso Lam Tsenng Fuk and Lam Tak Luk claimed a tract of foreshore and sea-bed extending from the old boundary of British Kowloon for distance of 1 miles in frout of Kowloon City and Chinwau, and com- pletely blocking access to the sea over that distance. In the other Ho Lap Hun claimed 631 mow of land extending from Kowloon City to Lyeemun for about 2 miles along the shore. The Attorney-Genral (instructed by Mr. FB. L. Bowley (rown Solicitor) appeared i support of a motion for leave to adduce fresh evidence. The application for leave to appeal, he said, was made within a few days of the passing of an Ordinance specially passed to enable th Crown to appeal inthe circumstances which existed in the cases he was about to refer to. Up to that time there had been no power re- served to the Crown to appeal against any decision of the Land Court. At the time the Land Court was established it was assumed that the cases coming under the ken of that Court would be of small importance, settling practic- ally the titles as between themselves of the peasant farmers and not involving any grave, farge interests in which the public of the Colony would be interested. However, the progress of Hongkong had been exceptional and almost unique in the history of the Colonies of the Empire during the last few years, and the re- sult bad been that claims of land which at the time the Land Court was inaugurated were of little or no value had suddenly sprung into value of extreme greatness. Under the second section of this new Ordinance (No. 13 of 1903) the Chief Justice was empowered at any time to give to the Attorney-General lease to appeal to the Full Court from any decision of the Land Court on any claims in the New Territory other than decisions in claims for compensation.
The Chief Justice What you want to do is to producefresh evidence?
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The Chief Justice said that what his learned brother and himself had in their minds was that primâ-facie the Attorney-General's application was quite right and proper, and that he should be able to give evidence, but before that one would like to hear if the other side had anything to say against it. The best course to adopt would be to treat this under the Code Sections 248 and 249, so that the Court would give them leave to serve this notice on the other side for them to show cause on the day of the appeal why the Crown should not give fresh evidence, and then they could not say that they were taken by surprise.
The Attorney-General- My object is to pre. vent them being taken by surprise.
The Chief Justice-This is an intermediate application?
The Attorney-General said he did not think their Lordships apprehended the exact nature of his application. He was asking leave to file no particular affidavits nor to admit any particular class of evidence, but he was asking leave in general to adduce evidence, and if that was given then he would file his affidavits and the other side would have an opportunity of an. swering them before the appeal Otherwise, ou the day of the appeal argument would come on and the other side would know nothing of the affidavits filed and would require delay. On the other band, if he was given leave to adduce evidence, they would know exactly what affidavits they had to read beforehand.
came on
The Chief Justice-Are you in a position to supply them with affidavits?
The Attorney-General-Yes.
were
The Chief Justice went on to say that Section 16 of Ordinance 13 of 1903 stated that the Chief Justice might graut leave to appeal on such terms as to notice, costs and other matters as he may in his discretion think fit." The words "other matters very general. If the Attorney-General had, at the time he the Chief Justice) granted leave to appeal, laid before him the same argumen's that had been laid before him now--that the Crown was not rep estated and that the Land Court came to a decision without hearing the Crown-he thought he could have given the Attorney-General leave to adduce fresh evidence if the other side had leave to adduce any evidence they might wish in reply to that. But the Attorney-General did notask him at that time, and it bad passed out of the jurisdiction
of the Chief Justice into the ken of the Full
Court, whom the Attorney-General now asked for leave to give fresh evidence when the appeal came OD, aud that the other side | should have leave to adduce evidence in reply to that evidence, It seemed, said his Lordship, a reasonable application. It did not seem to him possible that the other side could show cause why the Crown should not adduce evidence; they would have notice of this evidence before the day of the appea. In the circumstances he would grant this application
The Attorney-General-No, under the new Ordinance.
The Puiane Judge-How long will this case take, because it seriously affects me in my Court?
The Attorney-General-It may take a week. The claims are very important, One is for something like $500,000.
The Chief Justice made an order granting the application for the adducing of fresh evidence, the affidavits to be given to the other side in due course.
The Puisne Judge concurred. The Court adjourned.
IN BANKRUPTCY.
BAFORE HIS HONOUR SIR WILLIAM M. Goodman (CHIEF JUSTICE).
A QUARREL AMONG PARTNERS. The firms of Ku Fat and Ku Fat Chun, of 77, Bonham Strand, and 289, Queen's Road Central, petitioned that a receiving order be made against their estate that they be declared bankrupt.
Mr. G. K. Hall Brutton, solicitor, appeared in support of the petition.
His Lordship asked if this was the same application that was brought up in wrong form a week ago,
Mr. Brutton said it was, and that it had now been put in form. It was signed by three of the partners, and two were consenting parties to the application.
His Lordship remarked that this was a case in which five partners out of a total number of ten
petitioned that their firm be declared bankrupt, and there were five partners, one of whom was in Canton, who did not consent. If he gave & receiving order he would be dealing not only with the five who were the petitioners but with the five who did not want him to deal with them, He could not make a man bankrupt in Canton if the man did not want it. If it was a credi- tors' petition it would be a different thing. But how could he make a firm of ten partners bank- rupt when only five of them came forward and asked to be made bankrupt? The assets were stated to be $6,000 and the liabilities $7,000. What was to prevent one of those part- ners in Canton who had plenty of money in BD individual capacity, not wishing to be made bankrupt, coming forward and making up the $,000 that the firm owed? If none of the partners objected to the receiving order being granted that would be a different matter.
Mr. Brutton contended that any petition presented by two members of a firm had in- variably been granted in that Court.
His Lordship replied that he could not guarantee the accuracy of any decisions given by other Judges. He was responsible only for his own.
Mr. Bruce Shepherd remarked that in all these other cases the partners had already absconded and were treated as such.
His Lordship added that there was nothing to show that notice of this petitiou had been served upon the five partners in Hongkong P
Mr. Brutton replied that they had all been notified; some of them were dormant partners. His Lordship--A receiving order made applies to the several as well as the joint estate of partners.
Mr. Brutton-Yes, assuming that the joint estate is insufficient.
His Lordship said it was quite clear that there was a quarrel among the partners. The manag ing partner did not agree with this application, It was clear that some of the partners were not satisfied with the way the managing partner
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