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Mr. Sharp We are doubtful whether it would be prudent to adopt the course of taking the appeal straight to the Privy Council. As you know, objection might be taken by the Privy Council that we had not exhausted our local remedies. It is not clear where the Privy Council is disposed to consider that essential and where it is not. Continuing his argument with regard to the absent witness, he contended that his case was practically the same as the others, because it was necessary that he should be present in order to say what he had to say in his own defence.
The Chief Justice-But if he goes to Can- ton ?
Mr. Sharp Then your Lordship cannot exercise that judgment.
The Chief Justice-Then what is a judge to
Mr. Sharp-- Your Lordship has not got sum. mary jurisdiction.
do?
The Chief Justice-Is it destroyed ? Mr. Sharp-You cannot exercise it. In that particular case it would be destroyed. Your Lordship has the right to send for him and give him an opportunity of answering the charge.
The Chief Justice—I thought you said I had no power to bring him here.
Mr. Sharp-Oh yes, you have power to bring
him here.
The Chief Justice-Supposing I could not bring him here for three months?
Mr. Sharp-I think we are agreed on that point-that your Lordship has power to send for him. Your Lordship takes the initial steps of expressing yourself on the subject of the perjury. One man is absent, and you send for him. I certainly think that the proceedings would continue.
The Chief Justice-I consider that unless the absence of the witness is satisfactorily explained this case breaks down completely. Mr. Sharp-This is only a formal appeal. The Chief Justice-Yes.
Mr. Sharp resumed his argument and indicated that the appeal was not on the merits but on the ground of the irregularity of the procedure.
The Chief Justice then referred to a case decided in 1831, when Lord Brougham dealt with a case of what was called prevarication on the part of witnesses.
THE HONGKONG WEEKLY PRESS AND .
have been called up for the purpose of being commended for the straightforward manner in which they gave their evidence.
[May 14, 1906.
his assets only consist of $66,554. Of that there are $55,554 book debts There is a debt of $50,000 due from the Wong Fang Bank. We The Chief Justice intimated that he agreed have heard that although that debt was incurred with Mr. Pollock in so far as there was no in 1898, no interest has been paid on it. The half-way house between the procedure adopted person is out of the jurisdiction of the Court by the Court in the present instance and u and I submit if it had been possible he would re-trial of the whole case.
have recovered it. He ought to have put it in the Mr. Pollock-Not a new trial. I think it ❘ list of bad debts instead of the donbiful. extremely doubtful whether the appellants His Lordship having disputed the figured could (as convicted perjurers) repeat their quoted- evidence. They could get others to support their former evidence.
Mr. Dixon asserted that there would be prac- tically nothing for division among the oreditors, Mr. Pollock quoted authority to show the and he argued that debtor was not entitled to the construction to be placed on the words "if protection of the Court, such as was afforded an it appears to the Court in Ordinance 3 of honest bankrupt. Those proceedings had been 1873, section 31. Ia Bonaker v. Evans the taken to enable him to stay in the Colony and judgment said "No proposition can be more prevented him from being proceeded against clearly established than that a man cannot by his creditors. He asked his Lordship to incur loss of liberty or property until he had leave him to the mercy of his creditors. Thoy had a fair opportunity of answering the charges believed he had a considerable amount of pro- against him, unless the Legislature has perty in Canton which he was concealing, and expressly or impliedly given the authority to if his Lordship refused him the protection act without that very necessary preliminary." afforded by the Ordinance it was possible they' The section of the Supreme Court Ordinance would have an offer of a composition from the so far from implying that the right was to be bankrupt. withheld showed that it was to be respected. After further argument Mr. Pollock submitted that the Chief Justice had acted without jurisdiction in sentencing the witnesses to imprisonment without the preliminary steps being complied with.
The Chief Justice thought otherwise and pointed out that there was nothing in the statute which said so; Mr. Pollock inferred it
His Lordship-I can't very well take notice of that.
Mr. Dixon-You will see, my Lord, how difficult it is to get anything out of him.
Mr. Master-I submit that the proper, time for my friend's application was when the petition was presented. It is expressly laid · down, and insufficient assets is one of the grounds for the dismissal of a petition. My Mr. Pollock said there was auo her point to Iriend's position is that he has commenced which he would refer and that was the question an action against the debtor which was set of signature. He understood the signature down for trial bat is now stayed. Supposing was by order of the Court. A. Setb, the receiving order is rescinded my friend registrar".
steps in, obtains judgment, and gets the assets for his own client, which is wholly opposed to the bankruptcy laws, which are for the protection of the creditors.
The Chief Justice-It is not a signature: it is a certificate by the Registrar that an order has been issued by the Court.
Mr. Pollock-My point is that there is no signature by the committing authority. We submit that such a signature is required. Nobody can be legally detained under a warrant unless that warrant is signed by the commit- ting authority.
Their Lorships reserved their decision.
Thursday, May 10th.
IN BANKRUPTCY JURISDICTION.
BEFORE THE CHIEF JUSTICE (SIR FRANCIS PIQUOTT).
EX-COMPRADORE'S FAILURE.
Mr. Sharp held that that decision had been over-ruled by later judgments. He proceeded to argue that the writ of habeus corpus was applicable to the present cases. The writ was the proper and the readiest, probably the best, manner of raising the question whether the decision was made in a legal, regular, and The public examination of Lau Wai-chun, judicial manner. After applying himself to formerly compradore in the Hongkong and points in his Lordship's judgment, and contend-hanghai Bank, was resumed. Mr. Master ing that the men should have had an oppor- (from the office of Messrs. Johnston, Stokes and tunity of answering the charge-
Master) appeared for the petitioning creditor, and Mr. Dixon (from the office of Mr. John Hastings) appeared for another creditor.
The Chief Justice asked how this was to be carried out. Mr. Sharp could not put forward an argument like that without considering its practical result. If these men went into the bor, who was to call witnesses for the other side? How could the Court try the case P
Mr. Sharp said it might lead to a contrary decision, but if it was just, why shouldn't it ?
The Chief Justice asked how were the state-
ments to be tested? Was the Court to do it ?
Mr. Sharp replied that if a man wanted to call, say, John Smith in his defence, John Smith must be called.
The Chief Justios said Mr. Sharp's argument amounted to hearing one side only.
Mr. Sharp concluded his argument by asking their Lordships to rescind the judgment under appeal and to make the order for which they anked in two motions.
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Mr. Dixon said the her ring had been adjourned for him to prove his claim. He now produced his title and proceeded to examine debtor.
Lau Wai-chun said he discovered he could not pay his debts in the earlier months of this year. He was in difficulties last August, but not in serious difficulties, as his creditors did not press him. He knew he was insolvent but continued in the bank. Fifty thousand dollars was due him by the Wong Fung Bank on a promissory | note, but no interest had been paid on it. He was the owner of property in Lyndhurst Terrace along with Ma Fa Ting, his share being worth $15,000. Property had decreased in value and it might not realise that amount. He collected the rents, and was aware that the rents were not sufficient to pay the interest on the mortgage.
The examination was closed, after which-- Mr. Master applied on behalf of the Official Receiver for an order of adjudication.
Mr. Pollock also addressed the Court. He said it was important to bear in mind that the alternative power conferred by the section, the power to commit witnesses to prison, was an alternative to the power of ordering a prosecu- tion to be instituted for perjury, because it was fair to infer that the alternative in ordinary principles would be applicable to the trial for perjury. He argued that they should have been prosecuted for perjury and thus given an opportunity to make a defence. But as matter of fact from witnesses they were cou- verted into convicted persons, without knowing the specific Lots with which they were accused. Mr. Dixon-I have no doubt your Lordship For all they knew when called upon they might is right. At any rate, it is over $2,000,000, and
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Mr. Dixon asked for a rescission of the receiving order on the ground that the state ment of affairs showed no substantial assets for division among the creditors. He asked that the order be rescinded before the adjudication was granted. The liabilities were given at 82,160,725.
His Lordship-I have it $2,180,000.
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The Chief Justice-How would it affect the secured creditors?
Mr. Wakeman-It does not affect them at all. The Chief Justice-The bankruptcy pro ceedings do not help them in any way” ?
Mr. Wakeman-No.
Mr. Master-The securities held by the secured creditors are estimated to provide surplus to divide between the unsecured creditors.
The Chief Justice-Will the Hongkong and Shanghai Bank recover more than their claim ? Mr. Master-It is quite possible, my Lord. The Chief Justice-It is rather difficult for me to deal with.
Mr. Master-I would point out that my friend is only acting for one oreditor – $50,000 only.
The Chief Justice-There is only one peti- tion before the Court. Where do the other creditors appear to consent P
Mr. Master-They do not consent to the rescission.
The Chief Justice-They do not support this motion
Mr. Master-They do not support my friend's motion. The receiving order ought not to be rescinded on the application of one creditor:
The Chief Justice-What steps do you propose to take, Mr. Wakeman ?
Mr. Wakeman-I do not know; it is very difficult. The debtor in Macao is supposed to be a wealthy man; he is the proprietor of the monopoly of the fantan shops.
The Chief Justice-I suppose stops will be taken ?
Mr. Wakeman-Yes, as soon as the adjudi- cation order is made.
The Chief Justice-There will not be the same difficulty in Macao as there would be in Canton. The Portuguese law will recognise our bankruptoy laws and will assist, I suppose. I think considering the state of affairs with regard to Masso that it is possible the $50,000 may be recovered, therefore I refuse the motion. I think, however, the Court has Inherent power to not, but I will not decide that point now.
Mr. Dixon-Will your Lordship postpons, the adjudication to allow the Official Receiver to take steps towards recovering the $50,000, for in the event of his being unstoósente! submit I have very good grounds for continuing with my application. If your Lordship would adjourn both applications.
Both applications were adjourned.
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