404
opinion of the Court there is nothing objection- | able or unreasonable in providing, if it is so desired, auy express permission for the finding of the Court to be acted upon.
Hon Mr. POLLOCK-With regard to what has fallen from the bon and learned Attorney General I think it is desirable that the letter of the Chief Justice should be laid on the table. As it has been quoted by the hou. Attorney General in his speech, it would be more satisfac- tory if the Council had the whole letter before them. The hon. Attorney General adopted an unusual course in taking clause 85 before 84. I venture to suggest it would be desirable to deal with clause 84 before we deal with 85. I take it the clauses were put together for the purpose of showing the general nature of the proposal put forward by the Government. A8 regards 84 I have an amendment to move and I have another with regard to clause 85, I take it these amendments will be put sapar.. tely?
The ATTORNEY-GENERAL-I only explained to the committee what the course was.
Hon. Mr. POLLOCK-With regard to clause 84 I would suggest that a clause be inserted to come before the proviso which I understand the Attorney General intends to move. It is to the effect that the expression "discretion" as used in this section shall include an expression of opinion by the Board or by any person to whom discretionary power is given as aforesaid as to the meaning of any provision of this Or- dinauce. The main object in moving this Amendment is to make it quite clear that the discretion which ip referred to in this section-and I understand the Government are willing that parties shall be at liberty to apply to the Supreme Court on a point of law-should refer to questions of law as well as matters of fact. I hope, Sir, the Government will accept this amendment. I think it is in accordance with the principle of the Bill. Before the Attorney-General proposed to add the present proviso. I think he intended discretion" to cover points of law as well as questions of fact.
The ATTORNEY-GENERAL-I cannot see how it amplifies the section ?
Hon. Mr. POLLOCK-It amplifies the section
THE HONGKONG WEEKLY PRESS AND
[June 27, 1908,
The Building Authority may say-This is my ↑ Governor-in-Council to give effect to the direc- view. The other man may say this in my tion of the Court, view. The Bailding Authority may decline to give a definite opinion one way or another.
His EXCELLENCY He has to do so within a specified time. Do you wish to press your amendment to a division?
Hon. Mr. POLLOCK—Yes.
The ATTORNEY-GENERAL-The appeal must be from some decision.
Hon. Mr. POLLOCK-I am not going to be bound down by the technical use of the word
decision."
46
The motion was put to a division, and H18 EXCELLENCY declared that the noes had it. Hon. Mr. Pollock was the only one to support
the amendment.
Hon. Mr POLLOCK-There is another amend. ment to clause 84.
14
The AT ORNEY-GINERAL-I move to leave out the words in that olause duch order shall be final for all intents and purposes." The object of that is, that when a point has been raised, it is possible that the words might be construed as affecting the subsequent clauze which gives powers to the Governor-in- Council to state a special case. The two clauses are intended to be read together and the object is to get machinery to give effeof to the decision of the Governor-in-Council whether it be based upon the order of the Governor-in-Council direct or whether it be based upon the direction obtained from the Supreme Court on the special case stated,
Hon. SIR HENRY BERKELEY moved that the words in line 22 "desmed expedient" be struck out and the word "just" substituted.
Agreed to.
The ATTORNEY GENERAL moved the follow- ing proviso to clause 84 "Provided that nothing berein contained shall be deemed to prevent any person from applying to the Supreme Court for a mandamus, injunction or prohibition or other order instead of appealing to the Go. vernor-in-Council under this section."
Agreed to.
Hon. Mr. POLLOCK—With ■'l due deference, the Attorney-General has not answered my point. It is not the discretion which he himself would exercise but whether the other incumbents of the office would uphold the public right. That is why I con- been acquiesced in by the Government should sider it necessary that this sentence which has
remain the Bill. I must press this matter to a
division.
Į
Hon. Sir HENRY BERKELEY-I don't see
any necessity in view of the concessions made by the Attorney-General for retaining the Conncil should be prepared to abide by the words. A person who goes to the Governor-in-
decision of that body. It will multiply litigation to leave in these words, and I think my learned friend should be content with the concessions made in the matter.
Hon. Mr. POLLOCK-I must ask for a division.
On a division being taken there voted-For the amendment-Hou Sir Henry Berkeley, Harbour Master, Registrar General, Director of Public Works, Colonial Treasurer, Attorney- General, Colonial Secretary and H. E. the General Officer Commanding. Against-the Hon. Mr. Murray Stewart, Hon. Mr. Pollock, Hon. Mr. Wei Yuk the Dr. Stephen 8 to 4.
An amendment by the ATTORNEY-GENERAL that the words should be substituted for "with the opinion who shall give effect to the dading was agreed to.
11
""
The ATTORNEY-GENERAL moved a new seo- tion 265b. The committee would remember that they had deleted the words in the proviso to clause 8tgach order shall be final for all intents and
of the Governor-in-Council on an appeal shall purposes. It was proposed that "an order be final and may be enforced by the Supreme Court as if it had been an order of that Court, This was based upon the Imperial precedent. It was desirable to have proper machinery in order to enforce the order of the Governor-ia - Council.
Hon. Mr. POLLOCK-Suppose there is a reference to Full Court, what then ?
Hon. Sir HENRY BERKELEY-The Governor
in the way I have been endeavouring to explain this admendment. When the Bill was originally been dealt with by the Fall Court. If the
during the last ten minutes.
The COLONIAL SECRETARY-It seems to ma the amendment you want to make is to clause 85.
Hon. Mr. POLLOCK -It is an amendment to clause 84
Hon. Sir HENRY BERKELEY-It seems to me all my learned friend desires can be obtained in the proviso which the hon. Attorney General proposes to add to the end of the clause. Toat proviso empowers any person to apply to the Supreme Court for mandamus, injunction, prohibition," all of which include applications on questions of law No question of law can arise otherwise than on one of these three orders.
.
Hon. Mr. POLLOCK-I certainly iutend to
press my amendment,
The ATTORNEY GENERAL-You don't pro. pose to state an opinion on a question of fact ?
Hon. Mr. POLLOCK-Yes.
The ATTORNEY-GENERAL-I cannot see how this carries the section in the slightest degree further. The words are so very general,
Hon. Mr. POLLOCK-I cannot consent to it
being handed down to posterity that I was the
author of this bit of work.
The COLONIAL SECRETARY — he point you are trying to get at is already covered.
Hon. Mr. POLL.CK-There might be inaction or indecision and the whole thing might be hung up.
It is rather difficult, I admit, to frame an amendment.
The COLONIAL SECRETARY-There must be a decision one way or the other. There may be a plan submitted to the Building Authority who says-According to my reading of the section it is not proper. The other man says it is proper. If the man is dissatisfied be thereupon takes it to the Governor-in-Council. The section has been fully considered by this Council, and the hon. member who questions it cannot draft an amendment to satisfy himself. I think the section ought to stand.
Hon. Mr. POLLOCK-I would move that the words or in action be inserted after sotion and
4
expression of opinion" after decision.
A case.
The ATTOзNEY-GENERAL-I mova in clauss 85 that on line 4 the words "and shall at all times be required by the appellant" be deleted.
Hon. Mr. POLLOCK-I am stro-gly opposed to drafted this clause provided that the Governor in-Council should state a case. Well, Sir, after some discussion the Government agreed that the appellant shall have power to require & case to be stated. Now for some reason which I am unable to fathom it is proposal to take away the right of an appellant-which we understood was conceded to him-of asking the Governor-in-Council to stale It seems to me that this amendment is of a most retrograde character, and I have not heard a single word by any member of the Government why these words should be omitted, I cannot conceive way an appellant should not have equal right when the Governor-in-Council has power Lo state a case of asking that a case should be stated for the opinion of the Fall Court. I ua- derstand the Government were of opinion in the first instance that parties might be disposed to go to the Governor-in-Council rather than to rush into litigation, but now the appellaut will have no say in the matter of whether the Governor-in Council directs a case to be stated. I cannot see any reasons why these words should be deleted. I do not suppose that the deletion is in any way connected with the subsequent amendment to be proposed by the Attorney-General to class 85. I strongly protest against this tremely retrograde movement by which it is. proposed that the Government should withhold the concessions granted of allowing the appel. laut to require a case to be stated.
ex.
will not give his decision until the matter has
to the Governor-in-Council appellant goes the decision shall be final, and if he elects to. appeal elsewhere the decision will likewise be
final.
Hon. Mr. POLLOCK-Supposing the Gover nor has come to a decision P
Hon. Dr. Ho KAI-Then there is no need to refer to the Full Court,
The clause was then passed: A proviso by the ATTORNEY GENERAL to be inserted at the end of the clause - 88 passed as follows: "And by the addition at the end thereof of the words: Provided that nothing herein contained shall exempt any person from any proceeding by way of man- damus, injunction or prohibition."
Other amendments of a verbal nature were dealt with.
The ATTORNEY GENERAL-Moved to add to the preamble the words "and to make better provison for the preservation of the public health."
Agreed to.
CHEMISTS AND DRUGGISTS ORDINANCE.
The ATTORNEY-GENERAL proposed the third reading of the ill entitled An Ordinance to provide for the registration of Chemists and Druggists and to regulate the Sale of Poisons,
The COLONIAL SECRETARY seconded sad the bill was read a third time,
The Council was adjourned till next Thursday.
•
FINANCE COMMITTEE.
A meeting of the Financ Committee was < beld immediately after the Council, The Colonial Secretary presided. The following votes were passed:
The ATTORNEY-GENERAL Undoubtedly the deletion of the words will somewhat mini- miss the original proposal. Still the dis- cretion in the Governor-in-Council is absolute. Speaking for myself as the legal adviser of the Governor-in-Council, if I were satisfied that an appellant had sufficient grounds to leave any reasonable doubt as to the construction The Governor recommended the Council to of the statute I should have no hesitation iuote a sum of One hundred Dollars ($100) in advising the Governor-in-Council to acquiesce in
aid of the vote Colonial Secretary's Department the application of any appellant to state a case.
and Legislature, Other Charges, Hansard When the words were orignally inserted they Reports. were not accompanied by the express words to which I have taken exception, requiring the
The Governor recommended the Council to vote a sum of Seven hundred and forty-five
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