348
an
I
THE HONGKONG WEEKLY PRESS AND
SUPREME COURT.
IN ORIGINAL JURISDICTION.
Monday, 29th May.
Mr. RUMJAHN-With regard to the reply to my minute I still hold that you are wrong. know at present that one hotel, Hotel America, has had to shut up, and also a boarding house in Ice House Street. Some weeks ago
five application for permission to erect a story hotel at Kowloon was considered. It fronted on Robinson Road, 100 feet wide, and BEFORE MR. F. T. PIGGOTT (CHIEF JUSTICE), the Board refused the application because the building would obscure light from others. And this erection fronts Queen's Road.
The PRESIDENT It does not front Queen's Road.
Mr. RUMJAHN-It abuts, then, on to Queen's Road which is fifty feet wide and the houses on both sides have verandahs which take up 20ft. more space. The height of the building will be, therefore, on Queen's Road side three times greater than the width of the road, and the same remarks
IN THE MATTER OF WONG KA CHEONG.
His Honour the Chief Justice yesterday raised in the matter of the extradition of delivered judgment on the preliminary points
Ferrers, instructed by Mr. Otto Kong Sing Wong Ka-cheong. Mr. Hugh Norman appeared for the accused, and Mr. H. Ë. Pollock, K.C., instructed by Mr. R. A. Harding, for the Chinese Government.
His Honour said:-The procedure in this case is in a state of some confusion: this, how-
confusion
apply in a lesser degree to Pedder Street. ever, is not to be wondered at, for there appear to have been few occasions in this Colony for its consideration in the Supreme Court: and practically the same seems to have reigned in England before the practice was finally settled by the Judges: even now the practice can only be ascertained by carefully comparing the different decisions.
The structure would take off very much more light from the surrounding buildings. We are asked to-day to allow an infringement on the Public Health and Buildings Ordinance, and close our eyes to injury to surrounding buildings. I oppose the application.
The M. O. H.-When the plan came in I was struck by the fact that the maker had been very careful not to show a front door in Queen's
Road-a cute way of getting out of the difficulty and, for all our purposes, the building does front on to Queen's Road. The neighbouring
houses should be considered.
REGISTRAR GENERAL (Hon. Mr. Brewin)--- I am prepared to second Mr. Rumjahn's resolution, though this building does not technically front Queen's Road side. It is practically the same here, though, as on Pedder Street. Regarding the question of houses for Europeans I do not think we should
let that into the consideration, or I do not know where we should find ourselves landed. I am seconding because we should be consistent and, having refused the hotel application from
Kowloon which was a more open locality than Queen's Road, I think we should adhere to that now.
The PRESIDENT-One point strikes me, just. because this happens to be a corner house with
a narrow street on one side it is penalised,
Mr. Rumjahn's motion was lost by four against two.
The President moved the application be granted, and this was carried by four to two. Mr. Pollock did not vote.
ANTHRAX AT KENNEDY TOWN. Mr. Adam Gibson, the Colonial Veterinary age of Surgeon, reported by letter that a anthrax occurred in the Kennedy Town Cattle Depot on the 23rd May. The animal came into the depot along with 36 others from Wu Chow via Canton. It was seen coming into the depot by Inspector Cotton and was notice ably ill. It was placed in the isolation shed and died shortly afterwards. The shed has been disinfected and the in-contact animals isolated.
MORTALITY STATISTICS,
The Mortality statistics for the 5th May, death rate per thousand per annum, showed the following figures:-British and Foreign Civil Population, 9.9; previous week, 24.9: corresponding week last year, 25.7. Chinese population, 18.1; previous week, corresponding week last year, 20.4.
LIMEWASHING RETURN.
20.9 ;
The Limewashing Feturn for the fortnight ended 23rd May showed that 3,534 houses were limewashed in the Central District, and 3,762 in the Western District.
BAT RETURN,
The Rat Return for the week ended 27th May showed that 399 (32 infected) were caught in the City of Victoria, and 161 (13 infected) in Kowloon.
over
On May 17th a Japanese steam launch armed with a machine gun returned to Newohwang from a successful pirate-bunting expedition extending
three days.
The launch encountered a Chinese pirate fleet at sea, and made such effective use of her machine gun that the pirates were almost entirely annihilated. Two guns and a number of rifles and swords were captured.
Wong Ka-cheong was arrested on 3rd March on a warrant issued by the Magistrate under the Chinese Extradition Ordinance No 7 of
1889 the intimation from H.E. the Governor
of a requisition having been received from the Chinese Government for the man's extradition was forwarded subsequently as required by the Ordinance. On the application of the prisoner by his counsel a writ of habeas corpus was granted by Mr. Justice Sercombe Smith on 23rd inst. The writ having been made return.
able on Saturday, 27th. Mr. Ferrers moved for the discharge of the prisoner on the ground that the return was a bad return. Mr. Pollock, behalf of the Chinese K.C., appeared on
Government. He took a preliminary objection that the Puisne Judge should have granted a
rule nisi, and not an absolute rule for the issue of the habeas corpus. To this Mr. Ferrers objected that the Chinese Government had no locus standi: the precise terms of this objection were that the Chinese Government had no right to appear in the proceedings con-
nected with the habeas corpus; the only parties entitled to appear being the pris ner and the Crown. Notice was served on the Chinese Government of the application for the writ: but not of the motion for discharge of the prisoner. On this preliminary point of practice, assuming that 8 second notice is necessary, I am of opinion that a party who has not been served with notice, and not before the Court, cannot bring himself into the proceedings in this manner. His proper course is to apply to the Court by on which the question independent motion whether he was entitled to notice, and so entitled to appear in the proceedings, can be This has the advantage of keeping the argued. main question in the case free from this in- dependent issue, which may be an important matter, as in this case, whether the Chinese
Government has алу locus standi in extradition
14
44
64
Ex
ĮJune 3, 1905.
The previously granted, and the writ issued. prisoner was brought up in custody on the return, but the Attorney General at the com- mencement of the argument pointed out that the practice in matters of this sort had since '1873 been to obtain a rule nisi for a habeas corpus, and argue the case on the rule, and that such practice was far more convenient. He also "stated that the points on which the prisoner's "counsel wished to rely would not be available to "him on the return to the writ which was on the face of it perfectly good. It was, therefore, agreed that the matter should be argued as if the prisoner's counsel were now moving for a rule n'si on affidavits, and the Crown showing cause against such rule. It is reported accordingly.'
The argument before me then proceeded on the basis of a similar agreement: although the proceedings in that case and this cannot have been precisely the same, for the motion before the Queen's Bench Division appears to have been an application for a writ of habeas corpus, the writ having been already granted: whereas in this case the motion is for the discharge of the prisoner made on the return of a writ already granted. There is a question to be ultimately argued in this case, that the return is on the
*
16
**
17
face of it bad whereas in Ganz's case the return was on the face of it good. But the principle underlying the agreement come to in the English case is applicable to the present case ... there should be an opportunity for a full argument of the matter before the Court. This brings me to another question of procedure. There has already been one argument, and it is quite clear from what Mr. Ferrers has said, that the argument before this Court proceeds on the same lines as that presented to Mr. Justice Smith. In answer to my question, Mr. Ferrers pointed out, and rightly, that this was not an appeal from the Paisne Judge's decision. H. in fact obtained what he wanted. The motion now before the Court is entirely different; it is
to set aside the return to the writ already granted. But the same question arises, and it
might be that my views should differ from those of the learned Judge who has already given a decision in the matter. This motion, therefore, like that made by Mr. Pollock, savours very much of an appeal from Mr. Justice Smith's
order. The manifest inconvenience of two
different Courts hearing the same argument in
two motions, the second of which is not an appeal from the first, bas, like the former point, been dealt with in England. In re de Portugal (the Weekly Reporter reports is fuller than that of the Law Reports) Mr. Justice Day gives a very strong judgment to the effect that in such proceedings there must be only one argument.
His judgment begins as follows :-- "Mr. Justice Day-I regret that I was not a "member of the Court which gave judgment in "this case yesterday, but I am now in entire
"
"
possession of the grounds on which it was "delivered. That court heard a full argument from both sides. Now, on the application that the prisoner be discharged further arguments "have been addressed to us. I cannot help think- ing that such a course is a matter of great public inconvenience. It would be very incon- "venient if double arguments on the same question came to be allowed. The question "raised here, if it was not raised in the former «raised then,
discussion, ought most certainly to have been For myself I shall in future
گاه
C
"
proceedings In the present case this is the more important, because Mr. Pollock's motion amounted in effect to an appeal from Mr. Justice Smith's order, a point which elogs, so to speak, every question raised before me."never allow an argument on the issuing of a But the fundamental principles of extradition being, as I think, involved in this question, in spite of the apparent irregularity of this motion, it was to the manifest convenience of all parties that I should hear what Mr. Pollock had to urge in favour of his contention that a rule nisi should have been granted and not an absolute order for the issue of the writ. it will, moreover, enable me to settle the practice for the future.
"habeas corpus unless there be an undertaking "that there is to be no further argument. The former practice was for the argument to take place on bringing the prisoner up for discharge, but at the instance of a former Attorney General that course was changed, and the argument now takes place on the application for the writ of habeas corpus. I shall, however, take care that this incon- venience does not occur again."
"
"
Putting the Chinese Government out of the question for the moment, and treating Mr. Polarise: on the application for a rule nisi for the There are three stages at which argument can lock as amicus curie (as he himself suggested), habeas corpus: on the motion to make the rule he called my attention to the case of R. v. Ganz (9'Q. B. D. p. 93), in which precisely the same practice had been adopted as by Mr. Justice Smith in this case: ie., a rule absolute for the habeas corpus had been issued in the first instance, and not a rule nisi to shew cause.
The footnote to the case in the Law Reports as follows:-
54
In point of fact a rule absolute in the first instance for a writ of habeas corpus had been
absolute on a motion to set aside the retura, or for the discharge of the prisoner. In de Portugal's case the re-argament was presented by the Crown: here it comes from the prisoner. But, as before, the same principle underlies both cases: the same question must be argued once only. And I think that the English should take place on the motion to make the practice should prevail, that the argument
No comments yet.
Private notes are available after approval.