518
Mr. Pottar-What I say is that Courts have never considered that point which your Lord. ship is trying to consider. They have always considered the defendant as an officer of the
Court.
The Chief Justice-I can appreciate all that.. Mr. Pottar Judges in other cases suy, "His conduct has been such as will justify us in striking him off the rolls." They do not says,
This man has been found guilty of embezzle. : ment."
64
The Chief Justice-If a man is guilty of embezzlement and struck off the rolls on that account, it means to say he is guilty of embezzle- ment. Although acharge of embezzlement may be actually made, circumstances may fall short of that that will warrant him being struck off
the rolls.
Mr. Potter I submit the Court must be bound by the cases quoted.
The Chief Justice-Supposing the facts were so much in conflict that the Court felt that the
only proper way would be to send the man to the jury. What would then be done?
Mr. Potter-If the charges are not brought.
home against the man what happens is
is not struck off the roll.
that he
The Chief Justice-It is not a question of the case being brought home, but of the case being
so doubtful that we think it ought to be brought home.
Mr. Potter-The Court, as I have told your Lordships, refers this matter to a Master, and the object in referring it to a Master is that it should be investigated outside a public court; not where, if the charges are not proved against him, the man is still ruined because his char- acter has been besmirched. The case is heard in a Master's Chambers so that if the court see
they are not justified in striking him off the rolls, the defendant's good name and fame does not suffer. I propose that the case should be tried in accordance with the old procedure.
The Chief Justice-By hearing witnesses. Mr. Pottar-It is certain your Lordship can act in accordance with the old procedure. The case could be heard by one of your Lordships, who could report to the Full Court, or else it can be heard by the Full ourt.
The Chief Justice--Directly you admit that the Court has to sit and hear this case, does not it follow that it might call in the assistance of a jury?
1
Mr. Potter-No, my Lord. The you go. Your contention has been against criminal proceedings.
hief Justice-I want to see how far
Mr. Potter-Your jurisdiction is as between master and servant. The Court is the best judge to consider whether a person is a fit and
proper person to continue one of its officers.
The Chief Justice-The question is whether a crime has been committed.
Mr. Potter-With great respect, that is not the question.
The Chief Justice-I want to know in the abstract, why shouldn't we call in a jury?
Mr. Potter--Your Lordships jurisdiction is simply disciplinary. There can be no one better able to consider whether a person is a fit and proper person to be one of its officers than the Court itself.
The Chief Justice-That is a subsequent question; the previous one is whether the charge is proved.
Mr. Potter-It has never been suggested. The Chief Justice-I am only asking you whether it could not be.
Mr. Potter I don't think it could. When a man comes before you and makes a complaint, yon cannot compel him to adopt different pro cedure. The law is laid down absolutely that it is the duty of the Court to hear such cases, no matter whether they are indictable offences or not.
Mr. Calthrop said their Lordships must notice first with regard to this case that it was a matter which had been brought before the Court by pri. vate persons in their private capacity, and not in accordance with usual proceedings in England where it was brought by an independent person acting for the good of the professiou in general, as for instance, the Incorporated Law Society. Some years ago the Privy Council had to deal with the case of a solicitor or barrister who had been struck off the rolls of a colonial court - the Gold Coast Court. In that case the Privy Council gave as an expression of their opinion
THE HONGKONG WEEKLY PRESS AND
of the undesirability of the proceedings being conducted by an interested person, and suggested that the proper person to take proceedings of such a description would be some independent person in an official capacity, as for instance, the Attorney-General of the Colony.
The Chief Justice-There is nothing to pre- rent an ordinary person from applying to the Court to have anyone struck off the rolls.
[June 21, 1909
to the defendant he should have an issue of fact of this description left to a jury.
The Puisuo Judge-On the charges in the affidavit is.a charge of borrowing money from a Chinese client during the progress of an action, which he was conducting on behalf of that client. That of course would not be a criminal charge.
Mr. Pottar agreed, and remarked that when the evidence was heard there might be a con- siderable amount which would not be in any way criminal in its nature, but which might justify the Court in suspending the defendant or strik- ing him off the rolls. Mr. Calthrop had stated that there were admissions in the cases which them one by one and show that each case was the speaker quoted, but he would go through
that the Court had full power to grant a rule absolutely denied. His friend had suggested
nisi, but that it could go no further. Calthrop, however, had not cited any authority, for the very good reason that he could not. The practice was that a rule nisi was granted defendant. where a criminal charge was made against a
Mr.
Mr. Calthrop admitted that there was not, but stated that as a matter of fact counsel always appeared on behalf of the Incorporated Law Society as well. It was advisable that proceed ings of such a nature should be taken by inde. pendent persons, and not by the aggrieved this was a case which the present Court ought party. Regarding the question as to whether
to try; he submitted that the only cases in which a solicitor was charged with a criminal offence, which the court could deal with in its summary jurisdiction, were firstly, cases in which a solicitor had already been before the criminal court; and secondly, cases in which, after a solicitor had been called upon to show
The Chief Justice remarked that he came se, he had neglected to show cause or admitted into Court that morning very much impressed the offence. The same principle held good with the necessity of a case of this sort going now, although the procedure was different. before a jury, but if one worried it out a little And although every year one saw cases reported bit further he saw that the question was not in newspapers in which solicitors were struck really the fact that the man was entitled to off the rolls, nevertheless it was always notice-conviction or acquittal by jury, but that he able that when a man had been struck off on the round of committing a criminal offence, it was always after conviction.
The Chief Justice-What is your authority Mr. Potter My friend can hardly cite the newspapers.
Mr. Calthrop-There are none the other way Mr. Potter-My only objection is that my friend objected to a newspaper report which I had in black and white, and now he says he is going to rely on the newspapers.
- At this stage the Court adjourned for tiffin, resuming at 2 p.m.
simplify matters if he stated once more what The Chief Justice said he thought it would the real difficulty was. A great deal of emphasis had been laid on criminal proceedings. The difficulty the Court felt was, where the facts were disputed, whether that should not be decided by a jury. He was not emphasising the fact of criminal proceedings.
Mr. Potter said he would deal with the point in his reply.
|
|
i
should have a jury in order to ascertain the facts, because trial by jury was allowed in order to enable facts to be ascertained by seven here and twelve men at home, rather than ascertain the facts by one man. He thought therefore
that it was for the ascertainment of facts that a jury would be necessary, if absolute. ly compulsory. He admitted that the dicta of C. J. Cockburn and Justice Blackburn were exceedingly strong, and eutirely agreed with
what he had in his own mind. He could well understand a case where a difficult and com-
clear that the tribunal which must try this case plicated question of facts should be decided by a jury, but in this Colony it seemed perfectly was the Supreme Court. There was no person anybody who could stand in the place of the who could stand in the place of the Master, nor Incorporated Law Society; therefore this was the Court, whether it be a judge sitting by himself or the Full Court, in which disciplinary measures against B solicitor must be taken, and with the constitu- Mr. Calthrop remarked that, if their Lord- tion of the Court came power to summon a ships went through each of the five cases quoted jury that was to say, supposing a question arose by r. Pottar, they would find in everyone of of such a complicated nature that it would be them that the facts amounted to an admis only fair that it should be tried by jury. Then sion that the defendant had been guilty his Lordship would have little hesitation in giv-
misconduct as would of such
entitle the ing expression to his views, which were support. court to exercise summary jurisdiction. Whened by Justices Cockburn and Blackburn. a man had any complaint as to the conduct of a agreed that this disciplinary power having been solicitor, even though that complaint involved a vested in the Court, they could not refuse to hear a case when it was put before them and a rule criminal charge, he could fill an affidavit and move the Court that the solicitor should show disi granted.
Therefore he thought the case cause. But when the Court found there was should be heard before the Fall Court. an answer to a criminal charge they would not he Puisne Judge said he agreed with the deal with it themselves, but have the case tried | Chief Justice. by a jury as in other criminal charges. There was good reason for their Lordships to say that this case was one which ought to be submitted to a jury. Their Lordships knew that when proceedings were taken against a person, and it are and he statement of the plaintiff that a felony had been committed, the practice of the Courts was to say that the plaintiff should not proceed with the case until he had first prosecuted for felony.
|
The Puisne Judge Is that modern doctrine? Mr. Calthrop-It depends on circumstances, The Chief Justice-My impression is that all cases are negative. This is a case in which the rule won't apply; what the rule is, nobody! knows.
Mr. Calthrop-I will admit there is a conflict on the matter.
The Chief Justice-I don't think you will find a single case in which the principle has
ever been acted on.
Mr. Calthrop-I can cite a case at once, The Chief Justice-A civil case stopped for a criminal case to go on?
The Puisne Judge-That was a long time ago.
Pro-
Mr. Calthrop-bout forty years ago, ceeding Counsel submitted that this was a case which ought to go before a jury and not be left to be tried on affidavits. In common fairness
SECOND DAY.
Не
Mr. Potter, in opening. said that this was ou application on behalf of Mr. John Hastings, solicitor, practising in Hongkong, senior partner in the firm of Messrs. Hastings and Hastings, that Mr. Clive Fletcher Dixon should be struck off the roll of solicitors practising before this Honourable Court, on the ground that he had been guilty of gross misconduct in his capacity as a solicitor.
The Puisne Judge-Gross misconduct? Mr. Potter-Yes, my Lord. Before dealing with the charges.
I
Mr. Calthrop--Might I suggest that the charges should be specifically formulated. understand there are three charges of embezzle. ment, and they are not set out in the motion.
Mr. Potter After a few further words I come
to them.
Mr. Calthrop-I want to know which one Messrs. Hastings and Hastings are relying on? Mr. Potter--They are relying on the three. Before going into them I would just like to very shortly sketch Mr. Diva's connection with the firm of Messrs Hasting and Hastings.
The Chief Justice-I think we ought to know the know the charges first:
Mr. Potter As your Lordship pleases. The charges are three in number. A witness named
*
Page 10Page 11
No comments yet.
Private notes are available after approval.