Page:Twentieth Century Impressions of Hongkong, Shanghai, and other Treaty Ports of China.djvu/110

102 subjects or between British subjects and Chinese, subject in the former case to appeal to the Supreme Court of Hongkong should the sum in dispute exceed $1,000. and to the Chief Superintendent in a suit for less than that amount. The Consuls were empowered to inquire into all crimes and offences charged against any British subject, and. on conviction, to iuHict the punishment provided for under the Order. They were also invested with the power of deporting refractory subjects. Appeals from the decisions of the Consular Court relating to breaches of rules and regulations lay lo the Chief Superintendent. For all other crimes and offences recognised as such under Ihe law of England, the Chief Superintendent, Consuls, or Vice-Consuls were empowered to impose a fine not exceeding $1,000, to inflict a sentence of twelve months' imprisonment, or to send the case for trial before the Supreme Court of Hongkong.

The new regime was not altogether satisfactory. In the case of murder or arson the maximum punishment which the Consuls could award was inadequate, yet it was the only one that could with certainty be applied. To send a criminal to Hongkong for trial was. as a general rule, equivalent to acquitting him, for in the case of serious crimes against Chinese it was impossible to adduce sufficient evidence to obtain a conviction from a Hongkong jury. In civil suits, which were increasing daily in number and importance with the growth of trade, the Consular Officers were without that knowledge of the law which alone could ensure a proper respect for their decisions, and merchants and others were put to great expense by being obliged to take their cnses either directly, or indirectly by appeal, to the Supreme Court of Hongkong, where the judgments of Ihe inferior courts were invariably reversed.

After 1859 the Governor of Hongkong had no jurisdiction beyond the territorial limits of the Colony. The Minister Plenipotentiary and Chief Superintendent of Trade at the Court of Peking had power to make and enforce all such rules and regulations as appeared to him necessary or expedient for the preservation of peace and order among British subjects of all classes in China, and for the maintenance of friendly relations with the Chinese. In all cases that arose under these rules and regulations he was the judge of appeal. Her Britannic Majesty's Minister in Japan was granted similar power in that kingdom.

On March 9, 1865, a Queen's Order in Council was passed which hnally severed the British communities in China and Japan from the Colony of Hongkong by giving them a Supreme Court of Civil and Criminal Judicature at Shanghai, with subordinate tribunals at the various courts. Shortly after this there was an agitation in favour of making the Supreme Court of Hongkong the head Court of Appeal. This agitation arose in consequence of different decisions which had been given with regard to the bankruptcy laws by the Chief Justice of Hongkong and the Chief Judge of Shanghai. The one insisted that before a firm could file a petition in bankruptcy it was necessary for all the partners to be present, whereas the other held that the atiendance of the resident partner or partners was sufficient. Nothing, however, resulted from the agitation or from the demand which was put forward in 1878 for the creation of a Court of Appeal intermediate between the Supreme Courts of Hongkong, China, and Japan and the Privy Council.

The constitution of the Supreme Court of Hongkong was amended in 1873 by an ordinance which enacted, inter alia, that a puisne judge should be appointed to perform any judicial or other act which the Chief Justice was authorised to perform; and that there should be an appeal from every decision of either of the judges, or from the decision of a magistrate, to a full court, consisting of the Chief Justice and the Puisne Judge, the former possessing a double or casting vote in the event of there being a difference of opinion.

This Ordinance remains in force to-day. Criminal Sessions are held monthly, and they are presided over by the Chief Justice, or, in his absence, by the Puisne Judge. When there is a heavy calendar both Judges hold courts, and have power to pass sentence of death subject to the veto of the Governor in Council. In normal circumstances the principal duties of the Puisne Judge are to preside over the Court of Summary Jurisdiction, which is analagous to a County Court in Great Britain. For obvious reason the constitution of the Court of Appeal is regarded as capable of improvement, and for some time there has been a demand for the appointment of a third judge, for which the pressure of work in the Supreme Court alone furnishes ample justification. In the case of a suit involving not less than £1500 there is a final appeal to the Privy Council.

Barristers and attorneys who have qualified in the United Kingdom are alone entitled to practise before the courts. In the early days both branches of the legal profession were amalgamated, but later on, when the number of legal practitioners increased, they were kept distinct, in spite of the protests of the general community. By an Ordinance passed in 1856 it was provided that any person who had served for not less than three years as Registrar, Deputy Registrar, Clerk, or Interpreter of the Supreme Court, or of a judge of that court, as a clerk to the Attorney-General, or as a clerk of the peace, should be eligible to practise as an attorney, solicitor, or proctor upon satisfying a Board of Examiners, consisting of the Attorney-General, a Barrister or Registrar of the Supreme Court, and two practising attorneys, of his fitness. This Ordinance, however, was repealed in 1871.

the first Charter of the Colony of Hongkong in 1843, it was provided that the laws then existing in England should be in force in Hongkong, except so far as they were inapplicable to the ItK-al circumstances of the Colony or of its inhabitants. The local circumstances necessarily rendered inapplicable certain laws then, and still, in force in England; such, for instance, as the Mortmain Act, which, although the question of its applicability to Hongkong has never arisen in the Court of this Colony, was declared by the House of Lords in the case of Whicker v. Hume 17. H.L., 1241 not to be applicable to any of the colonics. It would appear never to have been definitely settled by the Supreme Court of Hongkong that any particular statute or statutes in force in England, prior to 1843, has or have no application to this Colony. The question seems to have arisen but once, when two persons were convicted by the magistrate of the criminal offence of champerty and maintenance. The defendants in this case appealed to the full Court against the magistrate's decision, and on their behalf it was argued, upon the strength of the judgment of the Privy Council in the case of Ram Coomar Coondoo and Anor v. Chundar Canto Mookerjee (2 Ap. Ca.: 1864), that the old English laws with regard to champerty and maintenance, which, though unaltered, had fallen into desuetude in England, were as much inapplicable to the inhabitants of Hongkong as, it was held in the case cited, they were to the inhabitants of India. The full Court did not decide the point, but allowed the appeal on other grounds.

The provisions of the Ordinance of 1845 that "the law of England shall be in full force" made it appear that all statutes already enacted in England after April 5, 1843, and thereafter to be enacted, were by that Ordinance extended to the Colony; but this not being the intention of the Legislature, an Ordinance (No. 2 of 1845) was in the following year passed, which provided that such of the laws of England only (subject to the exception of their applicability to the circumstances of the Colony and its inhabitants), and such portion of the practice of the English courts, as existed on April 5, 1843, should be in force in the Colony from thenceforth. However, although many statutes of importance were enacted in England after 1843, the provisions of which might have been usefully introduced into the Colony, very little trouble, apparently, was taken for many years by the Legislature to amend the law in this Colony as it had been amended in England. Occasionally, necessary ordinances were passed relating to procedure, adopting the methods provided by English statutes then recently enacted. Of course no provision made by a local ordinance of a Colony could deprive the Home Government of power expressly to extend to the Colony the provisions of any statute enacted subsequently to 1843. Moreover, the right of our Sovereign to make all such laws as might appear necessary for the peace, order, and good government of the Colony was expressly reserved by the Charter.

The first Ordinance of any particular importance which was passed after the Colony obtained a local legislature by virtue