Page:Twentieth Century Impressions of Hongkong, Shanghai, and other Treaty Ports of China.djvu/111

Rh of its Charter, was one which provided for the registration of deeds, documents, and judgments affecting landed property in Hongkong. Ordinance No. 3 (now styled No. 1) of 1844, whereby a land office was established, in which, it was provided, all such deeds, documents, and judgments should be registered within the period of time mentioned—one month after execution in the case of all documents executed in the Colony, or twelve months if executed in any other place. Neglect to obey the provisions of this Ordinance, it was further provided, should render such deeds and documents absolutely null and void to all intents and purposes as against any subsequent bonâ fide purchaser or mortgagee of the property affected.

The establishment, by this Ordinance, of a register of titles to landed property rendered conveyancing a comparatively easy matter, although considerable difficulties have occasionally been experienced by reason of the custom among the Chinese of purchasing property in a "Tong" name, that is to say, a name invented to represent a family, or a body of persons descended from a common ancestor. In the early days of the Colony this custom was apparently unknown to legal practitioners, with the result that titles to some properties were subsequently found to be much complicated. Of late years, however, the Chinese themselves have come to understand that in dealing with landed property in this Colony, use must not be made of a "Tong" name.

The tenure of practically all the land in Hongkong and its dependencies is under lease from the Crown for a term of either 999 years or 75 years, the Colony deriving a very large part of its revenue from the Crown rents payable under these leases. Crown leases for the shorter term usually contain a provision giving the lessee a right of renewal of the lease upon the expiration of the term, when, however, the Crown rent may be readjusted.

In the early days of the Colony by far the greater number of residents were not British subjects, but Chinese. Many, as at the present time, were aliens from European countries. For some reason, which is by no means clear, doubts arose regarding the rights of other than natural-born British subjects to hold and transfer landed property within the Colony. Accordingly an Ordinance was passed in 1853 for the purpose of removing these doubts, and it was provided that it should be lawful for any alien to acquire, hold, sell, and transfer any lands, or other immovable property in the Colony as fully and effectually to all intents and purposes, as if he were a British subject residing in the Colony. Recently similar doubts have arisen with regard to foreign corporations, and, although it is conceived that the necessity for such provision does not arise, inasmuch as the Mortmain Acts do not apply, and a foreign corporation is for all other purposes regarded by our law as an entity, it has been considered advisable to provide expressly by Ordinance that a foreign corporation shall be entitled to hold and transfer land in the Colony. The transmission and devolution of landed property in the Colony is governed by the laws of England as they existed prior to 1843. The Statute of 8 and 9 Vict., c. 106, not having been expressly extended to the Colony, and its provisions not having been introduced here by any Ordinance, it is unnecessary for the purpose of rendering valid at law a lease of landed property for a term of over three years, to make such lease by deed. Nevertheless, it has been the invariable practice in the Colony to follow the home practice in this respect, and also in regard to assignments of property. The Conveyancing Act of 1881 not being in force in Hongkong, deeds relating to land are necessarily more lengthy than they are now required to be in England.

On the death intestate of the owner of landed property in the Colony, the land, being leasehold, devolves upon his administrators in trust for his next of kin. Should the owner of property die leaving a will, the terms of that will govern the devolution of such property, provided the will is executed in due form, according to English law. But in the case of a will made by a Chinese testator, whether a native of, or domesticated in, Hongkong or the Empire of China, special provision was made by Ordinance in 1856 to the effect that if the same be proved to have been made according to Chinese laws and usages, it shall be treated as a valid will for the purpose of transmitting property in the Colony. At the time of the passing of the Ordinance it was evidently not comprehended by the Legislature that there were not then, as there are not now, laws and usages in China with regard to wills; but that property in that country devolves upon the next succeeding head of the deceased's family, who, however, is supposed to have a certain regard for the wishes of the deceased, expressed verbally or in writing, and whose conduct will be, to some extent, regulated by the elders of the village. The Ordinance, therefore, is practically of little or no use.

In by far the greater number of instances where a Chinaman has amassed property in Hongkong and died, he has learned the advisability of making a will, and the necessity for having two attesting witnesses to it. If he has omitted to make a will it is believed, though the fact can seldom be proved, that after his death a will is prepared, appointing executors, which purports to have been executed by him, and to have been duly attested. Such a will, however, is generally a perfectly just one according to Chinese ideas, and is therefore not disputed, the sole object in propounding it being to avoid the necessity for finding the security which is required to be found by the administrator of an intestate's estate. The Chinese are a business people, and a Chinaman becoming surety for another always requires, and is considered to be entitled to, payment for his services.

The Married Women's Property Acts in England not having been extended to Hongkong, the old law at home remained in force here until quite recently, a married woman being incapable of entering into valid contracts, or of suing or being sued, except under the special provisions (Section 8) of the Supreme Court (Summary Jurisdiction) Ordinance, 1873, which provides that no person shall be exempted from suing or being sued for any debt or damages not exceeding $1,000 by reason of coverture where the husband is not resident in the Colony. However, in 1906 it was considered advisable to amend the law in this respect, and to place married women in Hongkong in the same position as their sisters in England. Accordingly an Ordinance was passed introducing into the Colony practically all the provisions of the Married Women's Property Act, 1882, whereby it is provided that a married woman may acquire, hold, and dispose of property, and may sue and be sued as if she were a .

The tendency in the Colony at the present time is to assimilate its laws, so far as it can conveniently be done, to those of England. Undoubtedly this assists very much the administration of justice, rendering it comparatively easy for the judges of the Hongkong Court to arrive at a correct conclusion in most cases in which points of law are involved, guided as they are by the decisions of the High Court in England on similar subjects. Unfortunately, however, in some branches the law of the Colony differs from the law in England, although it has been intended to assimilate it. The law in the Colony with regard to trade-marks is a case in point. An Ordinance was passed in 1898 which had been prepared on the lines of the Trade-marks Acts in England; and it was believed by many, and was probably intended, that such Ordinance conferred the same rights upon registered proprietors of trade-marks as had been conferred on those proprietors in England by the Home Acts. Nevertheless, it has been held by the Hongkong Court that a registration of a trade-mark does not confer any actual rights, but merely gives to the person registering the mark easy means of proof of such rights as he may possess at common law, by making registration evidence of such rights. The law, however, with respect to trade-marks will, it is understood, shortly be amended by the introduction of an Ordinance framed upon the existing Trade-marks Act in England, and by expressly conferring upon the registered proprietors of trade-marks in the Colony such rights as are possessed by registered proprietors in England.