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SUPREME COURT.
Monday, 23rd November.
IN APPELLATE JURISDICTION.
BEFORE THEIE HONOURS SIR WILLIAM M. GOODMAN (CHIEF JUSTICE) AND A. G. WISH (RUISNE JUDGE).
LAND COURT APPEAL CASES.
THE HONGKONG WEEKLY PRESS AND
The Chief Justice-Can you tell me, as a matter of fact did the purchasers pay this money?
Mr. Slade-Yes.
The Puise Judge-But the price was not to be paid till you got your title.
On the
Ir. Blade went on to state that on 4th February Mr. Deacon received a letter from the Colonial Secretary informing him that it was not considered expedient to issue a formal certificate of title ponding the settlement of the exact amount of taxes payable upon the land, but that it was hoped that this would be The hearing was begun of the appeals by the settled at no distant date. On the strength of Crown ag inst two decisions of the Land Court. that letter Mr. Deacon advised the parties that In one Lam Tseung Fak and Lam Tak Lukit constituted a sufficient title and that they claimed a tract of foreshore and sea-bed would be safe in treating it as such, the re- extending from the old boundary of Bri ish sult being that the assignment of the Kowloon for a distance of 13 miles in front of land was made to the present applicants, who Kowloon City and Chinwan, and completely purchased from the original claimants. blocking access to the sea over that distance. 19th November Mr. Bowley filed an affidavit In the other Ho Lap Hun claimed 621 mow of stating that prior to 17th November he had not land extending from Kowloon City to Lysemun received any notice that the applicants had any for about 2 miles along the shore.
interest in these claims. He (Mr. Slade) said his clients had good reison to believe
the Crown knew of
assigu The Attorney-General, Sir Henry S. Berkeley,
ments. The applicants had the whole of and Mr. E. H. Sharp, K.C., instructed by Mr.the, right of the title interest of F. B. L. Bowley (Urown Solicitor), appered the claimant of this property, and by for the appellants; Mr. M. W. Slade, barrister. Section 15, Ordinance No. 18 of 1900, it was at-law (instructed by Mr. F. B. Deacon, clear that from the time the claimants made of Messrs. Deacon and Hastings, solicitors),, their claim the applicants were entitled to a appeared, first, for two parties who were apply. position as against the Crown, and under ing to be joined to the proceedings as
Section 14 a formal title could be granted by respondents and who claimed to
Crown lease or otherwise. Their contentiou interest in it as having purchased the land; Mr. F. Paget Hott, solicitor, of Mr. G. K. H. Brutton's office, watched the case for the claimant.
The case of Lam Treung Fak and Lam Tak
Luk was first called.
have an
The Attorney-General having expressed himself as satisfied that this motion should be heard desite the absence of formal notice having bee served by the other side,
His Lor 'ship asked why this application had not been m de sooner, considering that leave to appeal was granted three months ago, whereas no motion paper was filed till the 17th November. Mr Shile replied that there were several ressous. First of all they a turally anticipated that the Crown would joia thim as respondents; the Crown knew of their existonca and that they were assigness of this property; their title-deeds were on register.
The Chief Justice-There is no title; the Crown grants the title.
Mr. Slade contended that they had a title and that it was on register, and it was hardly credible that the Crown Solicitor did not order a search to find out who the assignees were. The proper course would have been for the Crown to join them. Then they had the whole rights of this laud. It was perfectly obvious to anyone who had read the evidence taken in the Court below that unless the Crown adduced further evidence they could not possible succeed, and it was not until 13th February they obtained leave to adduce fresh evidence; until that time there did not appзar to be any neces- sity for the assignees to put themselves to the expense of being male parties to the suit, be- lieving that the Crown were not going to adduce fresh evidence. As soon as the Crown got this leave it became of vital importance to these assignees that they should be made parties. and an application was accordingly made. It was not their fault that the Crown before getting their leave to adduce fresh evidence and before filing affidavits had already got a day fixed for the hearing of the case; it was a reversal of the ordinary practice. Coming to the merits of the case, the position of the assignees was set forth in the affidavit by Mr. Deacon, filed on 18th November. He was solicitor for the two applicants. By an agree- ment dated 4th January, 1901, between two other men and the two applicants the latter purchased from the former (the purchasers from the original claimants) this land which was subsequently held by the Land Court to be the property of the original claimants, the price being $25,000. It was on 4th November, 1901, that the Land Court gave judgment for claimants. On 30th December, 1901, Mr. Deacon by the claimants' instructions wrote to the Registrar for a certificate of title, as his clients desired to deal with the land. Later he wrote twice to the Colonial Secretary making the same request.
that
the
and
was that they had a title, namely, the title laid down in Section 13 of the Ordinance. The Land Court specifically referred to a title in their judgment and allowed the claim of the claimants to the extent of odd acres. His other point was that his clien's had got the whole right of these claimants and be- lieved they had a better right on account of that letter which was written by the Colonial Secretary in answer to their specific request that a title be granted. That letter meant only one thing that the Government would grant a proprietary title as soon as they had settled the exact amount of taxes payable.
The Chief Justice remarked that the Colonial Secretary's letter was not equivalent to the grant of a title by the Governor. The applicant's if terest, it appeared to him, was precisely the same as the claimants'; if the appeal was dismissed they would be able to have ail the rights of the claimants, and if it was successful." if it was shown that this decision was er.onsously obtained from the Land Court they would have to turn round on the claimants and deal with them.
Mr. Slade contended that their point was that they should be compensated by the Crown. The Paisae Judge-Suppose we upset the Land Court's decision, we are not going to say the land belongs to you; we shall s op there.
Mr. Slade-If this title is bad I will get another from your Lordship.
The Puisne Judga-Not from me. The Chief Justice-It must be from the Privy Council; not from me on this appeal.
Mr. Slade The question to be decided is- who is entitled to this land-the Grown or the respondents?
The Chief Justice--No; the Crowa or the
What we are claimants
dealing with is whether a certain decision was a correct decision.
Mr. Slade proceeded to a gae
that the Ordinance under which the Crown had obtained leave to appeal did not contain any reference to purchasers from original claimants, on which point their position was absolutely unaffected by the Ordinance. The Ordinance indeed was an attempt on the part of the Government to get behind an honest, open speculation in land made by his clients two years ago, and without paying compensation. What the Court had to decide was not the question whether the Land Court adjudged rightly of the facts before them, but who was entitled to this land.
The Pu sne Judge-We are not going to do
that.
The Chief Justice--It is an appeal against a decision.
Mr. Slude-I submit that what I say is the subject-matter of the case.
The Attorney-General in his reply stated thet his friend misconceived his position, and that their Lordships would be travelling out of
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[November 30, 1903.
their proper course if they were to put his clients as respondents. At the time the pase was before the Land Coart these persons did not exist so that their presence in the Land Court was not necessary at all. Therefore they could not by parties in au appeal against a decision of the Land Court, Why the delay, till within a few days of the date fixed by the Court for the bearing of the case, in applying for these mon to
Le made respondeats? There was absolutely no answer to his Lordship's questiou. He (the Attorney-General) was not even permitted by the law to accede to this applica tion being granted. His friend had asked too much in asking that the Colonial ecretary's lo ter be construed into a recognition of a full and complete title. He contended that the Court should not grant this applica tion for four reasons. First of all, the appli. cants could not be added to the respondents in this appel tecins they were not claimants in the Land Court. Then, supposing they wore added as
the assignees, b law of China, as laid down in a very able exposition by Mr. C. Clementi and Mr. Lau Chi Ping, it was clear that there was no such thing as an assignment at all. This appeal had not been heard as the concluding episode in a case pending before the Land Court; they had come there at the end of more than 18 months, when the gravity of the position in which the public interests of this Colony had by the deception practised upon the Land Court become apparent. The new Ordinance under which the Court now sat and which authorised the Crowa to appeal against any decision of the Land Court was an original proceeding rendered necessary for the protection of the public interests of the Colony. The other side bad had notice for more than three months that the case was coming on, and they were fully represented and all their interests fully protected by the respondents.
Mr Slade, in closing the address of counsel, contended that the applicants would not be amply represented by the respondents, who would be satisfied with some $9,000, whereas his clients claimed compensation for somthing like half-a-million dollars. In the second place the applicants had points to bring forward in the trial which were not open to the claimants. Thirdly, under the words of Rule 6, the Court ought to make them respon lents.
The Chief Justice in delivering judgment said that on 3rd December, 1900, two claimants, Lam Tseung Fak and Lam Tak Luk, laid a claim to certain lands in the Now Territory, and in the course of about a year, on 7th Decem ber, 191, the decision of the Land Court was given. The decision of the Land Court was in favour of the claim by these people and. it was the duty of the Land Court if it allowed the claim under Section 14 to report that allow. ance by the lagistrae to the Governor in order that the Governor ia due course might order a title appropriat to the case to be granted, or else if he found it inexpedient to grant a title, to refer back to the Court to award compensation —not to a number of assignees, but to the claim. ant or claimants. The Crown was not repro- sented at that hearing and the Crown was in one sense the stauding claimant to all the land there, because under section 15 9: the Ordinance all the land was declared to be the property of the Crown except such property as persons shall have a claim to. Well, it was discovered, or the Crown supposed they had discovered, that there had been some mistake in this decision of the Lind Coart owing among other things to the fact that one of the documents, a very im. portant document, brought before the La d Court was alleged to be a forgery. He was not saying for one second that this was the case; he had not the slightest means of knowing anything about it, but that was one of the reasons stated in the affidavit of Mr. Bowley, the Crown Solicitor, filed on 24th August, 1903. That affidavit contained the suggestion that one of the documents upon which the decision was obtained was a forgery. The Attorney-General appeared before the Court on 25th August, 1903, and was given leave to appeal, any doubt as to whether the Crown was bound by the meaning of the word “claimant” in the other Ordinacce being set at rest by the fact that a special Ordinance had been passed (13 of 1903) which gave the Chief Justice the power on good cause shown to grant leave to the Attorney-Genaler
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