90
The case stated by the Magistrate (Mr. F. A. Hazeland) was to the effect that on the 18th July, 1906, a complaint was preferred by the Building Authority against Fang Chun Yuen under sections 280 and 259 of the Public Health and Buildings Ordinance, 193, charging him with neglecting to comply with the requirements of a notice dated 29th June, 1906, requiring him to remove certain illegal wrought iron partitions at Nos. 1, 2, 4 and 5 Hill Road His | Worship held that the notice was bad, but convicted the appellant for contravention of section, 222 sub-section 1, for having commenced building the iron partitions without proper plans being previously submitted to the Build- ing Authority and approved by that athority, and imposed a fine of 8100. At the Police Court on 16th October, 1906, a complaint was preferred by the respondents against appellent under section 230 of the Ordinance for that he on the 16th September failed to comply with the requirements of a notice dated 8th Septem- ber, 1906, duly served requiring Him to remove the whole of the iron partition walls which had been erected in contravention of section 222. The defendant pleaded res judicata and not guilty. On the 13th November, 1906, the Magistrate held that the conviction of the appellant on 31st July was not a bar to the complaint of the 16th October and that the plea of res judicata could not be maintained. The question of law which arose for the opinion of the Court was whether the conriction of the appellant on 31st July, 1906, was or was not a bar to the complaint of the 16th October, 1906. In the cross appeal the case stated by the Magistrate showed that the question of law for the opinion of the Court was whether the contravention of section 222 of the Ordinance was a buisance within the meaning of section 929 of the Ordinance.
The Attorney-General opened the case for the Crown, and justified the Ordinance as framed to deal with the peculiar local
conditions.
Mr. Slade contended that if the plans con- formed to the Ordinance the Building Authority was bound to approve of them. In that case it was not suggested that the plans did not conform to the ordinance in any single thing. The Authority wished to make the man pull down the bonse again. Otherwise there was Do ground for their persistent persecution of this man.
He challenged his friend to show
a single flaw in the plans.
The Chief Justice--You sy the Building Authority has no discretion?
Mr. Slade-No discretion under that section. If the plans conform to the building regula- tions he is bound to approve them. Otherwise we will have this dictatorial authority imposing all sorts of conditions to work its wicked will upon this Colony. The discretion vested in the Building Authority is limited by law. is a matter of immense importance as tohether this dictatorial power is to be conferred on the Building Authority.
It
The Chief Justice (to the ttorney-General) -Do you admit this pro position?
The Attorney-General-If there is a dit cre- tion the amount is limited.
Mr. Slade went on to complain of the regular course of persecution to which the appellant had been subjected. He further contended that a fair and reasonable construction must be placed upon the words in an Ordinauce of that kind.
The Chief Justice- Assuming it to be a technical contravention is there no other penalty provided for except by refusal of approval ?
Mr. Slade-In so many words there is no other penalty provided. What are your Lord- ships asked in this case? You are asked to say that the iron partition is a nuisauce merely be cause it was erected without consent having been previously obtained. It is not suggested that it harms any body. It is not suggested that in itself it is a contravention of any provisions of the Ordinance. Yet your Lordships are asked to hold that in itself it is a nuisance. Counsel then proceeded to argue as to the definition of the word nuisance. The only ground of the prosecution was that it was a nuisance because the consent of the Building Authority had not been obtained. It must be assumed there was
Do other ground. He submitted that it was not less a proper building because the owner had committed some isolated act of impropriety in
THE HONGKONG
WEEKLY PRESS AND
connection therewith. The owner had only done that in order to get out of a difficulty. It did not effect the finished condition of the structure which, having been put up without the consent of the Building Authority, surely was not to be pulled down for no other reason than the Building Authority's disapproval. It might bepulled down, and the Building Authority would have to give bis approval to another set of identical plans. The injury inflicted on the man would be enormous. It takes months and months to get plans through, and knowing this the appellant commenced building, knowing that his plans conformed to the regulations. That did not amount to a nuisance. He submitted that their Lordships must read the meaning in that word nuisance in accordance with the law before that Act was passed. He submitted (1) that the meaning given to the word naisance in that section must be considered as something different from an offence or a contravention in any other portion of the Ordinance; (2) taking be whole scheme of the Acta they must read the whole of that section as applying to cases which were injurious in some sense. Continuing, he sib the decision in this case gave the Building -uthority a great deal more power than mere delay. It gave him an immense power over the unfortunate builders. It enabled him to exercise a discretion not permitted under the
* of.
It enabled him to enfores his personal will upon the owners by delay.
The Attorney-General-He is making serious allegations.
Mr. Slade - That is so.
The Chief Justice-Against public officers. The Prisne Judge-You have a Commission sitting just now which will sweep all these objections away.
Mr. Blade I hope it will. Some officials are better than others. Some have more sensible
ideas than others.
The Chief Justice--You mean that a bad official may delay business 2
Mr. Slade-Yes. Continuing, he asked their Lordships to hesitate to put such power in the
hands of an official.
The Chief Justice-The whole thing bas arisen through combining public health with buildings. They are two separate subjects.
The Attorney-General-They are separate
parts
After further discussion, Mr. Slade resumed his seat, and
for the
local
He
The Attorney-General renlied dwelling on the meaning of the word nuisance and showing Ordinances the necessity being more drastic than the Home Actr. submitted that if the appellant compl-ined that the Building Authority did not perform his daty by approving the plan, the proper course would be for appellant to apply for a mandamus to require the Building Authority to discharge his office. He contended that the first offence lay in not submitting a plan and the second in | not getting the plan approved. That was a continuing offence of which the ('rown com. plained.
The Chief Justice remarked to Mr Slad- that if judgment went in his favour the effect would be to do away with the obligation to submit plans to the Boilding Anthority.
Mr. Slade replied that if a building was put up without complaint and it was not in conformity with the Ordinance the owner could be required to pull it down. If it was in conformity the case could be met by a fine,
Judgment was reserved.
"the second appeal was then taken.
Mr. Slade said no man could be fined for the same offence twice. Tung Chun Yaen had been
fined $100 under section 222 for not pulting in plans.
"he Attorney-General—It was not the same offence. He was fined for not putting in the plans. The second summons was for not com- plying with the order to pull down the building. The Chief Justion The Magistrate had conceived two paualties for one off-ng--a fine or pulling down the building. I do not understand the Magistrate's action in imposing a fine.
The Attorney General, I am not defending his action, but I say your Lordship could make the order to pull down the houses.
Mr. Slade replied. Judgment was reserved.
[ February 9, 1907.
Tuesday, February 5th.
IN ORIGINAL JURISDICTION.
BEFORE SIR FRANCIS Piggott (Chiar JUSTICE).
MAN SHUN WO v. B. I. G. N. CO,
Judgment was delivered by his Lordship in the action by the Man 8ban Wo, merobants carrying on business at 227 Des Vœux Road West, against Mesars. Jardine, Matheson and Company, the local agents of the British India Steam Navigation Company, for the recovery of $1,863, said to have been lost on a certain shipment of birds' nests. Messrs. M. W. Slade and H. G. Calthrop (instructed by ar. G. K. Hall Brutton of Messrs. Brutton and Hett) represented_the_plaintiffs; and the Hon. Mr. H. E. Pollook, K.C., (instructed by Mr.
Mesars. G. Hastings, of
Hastings and Hastings), appeared for defeudante.
The Chief Justice said:-I may state the facta of this case as the plaintiff puts them very shortly. He or his agent shipped on board the defendants' vessul some cases of white birds' nests; he received some cases of peanuts. He therefore alleges that the defendant has not fulfilled his contract of carriage, as it is expressed in the bill of lading, and seeks to recover the value of his birds' nests. The case is manifestly of great publio importance. Ou the bare statement of it, it much resembles the too common occurrence, to which all of us I suppose have been subject, of a case of wine shipped and on arrival being fɑund to soutaia a certain number of bottles of water, the case being in fact delivered as shipped in "good order and condition, "_showing no external marks of damage. This case however presents this peonliar feature, that the cases when landed did show external signs of not being in good order and condition; the claim is however not for damaged goods, but for non-delivery of goods as shipped, and the question is how far this affects the onus of proof, as it results from the two conditions contained in the bill of lad- ing, "shipped in good order and condition,” and 'weight, contents and value unknown," The point thus raised does not seem to have been expressly decided.
16
This
The shipowners relid in the first place on another condition of the bill of lading. Company is not to be responsible for damage, evaporation, eto, leakage or breakage, or other consequence arising from errors, obliterations, abgend of marks, or from the insufficiency of the address or packing, internal or external, or for the condition or contents of re-shipped or re-exported goods,”
It is necessary to go a little farther into the history of the case in order to decide the question thus raised.
The plaintiffs had ordered six cases of birds'. nests from a fim in Batavia. They were shipped by the 8.. Van Reback, not on through bill of lading to thintiffs in Hongkong, but on a bill of lading to the Ban Aun Holi, a firm in Singapore who forwarded them to the plaintiffs by another steamer on a separate bill of lading. There seems to have been some commercial relation-
xhip between the three firms, but what it was I do not stop to enquire, for in the view I take of the condition of the bill of lading specially
it circumsta cas, these applicable to immaterial whether the three firms were one frm or entirely ind«p«nd-at,
is
I have now to see what this exception in the In the first place bill of lading really means. its grammatical construction does not warrant the linking of the word “damage" with the last sentence which refers to re-shipped or re- exported goods; and I am therefore unable to adopt the suggested construction that thi Arception protects the shipping Company ouly from damage resulting from the fact of If damage reshipment or re-exportation. results from this it seems to m⚫ probable, though I express no opinion on the point, that the liability would have to be determined by other principles. I am of opinion that under the bill of lading the this clause of shipowner claims · complete exemption in the 0180 of re-shipment or exports-
be tion,
read and that
mast } thus :—“ The Company is not to be responsible for the condition or contents of re-shipped or
it
Page 10Page 11
No comments yet.
Private notes are available after approval.