R142599
Private and Confidential.
314
THE PERSONAL STATEMENT
OF THE
REGISTRAR
OF
THE SUPREME COURT
OF
HONG KONG.
APRIL 25, 1881.
(DTRQE)
Private.
THE PERSONAL STATEMENT
OF THE
REGISTRAR OF THE SUPREME COURT
OF
HONG KONG.
IN November, 1879, I was recommended by the At- torney-General, Sir John Holker, for the vacant post of Chief Justice on the West Coast of Africa. That office was bestowed upon another gentleman, and I was offered the post of Registrar of the Supreme Court of Hong Kong, which I then declined.
In February, 1880, understanding from the Report of a Commission which had been furnished to me (extracts from which will be found in the Appendix No. 1), that there was work to be done at Hong Kong, and the offer being renewed, I accepted a seven years' engagement to do the Registrar's duty, but under which I was not to be entitled to pension or gratuity. On March 3rd, 1880, I left Eng- land for China. I had previously been required to enter into a bond for £2,000, with two sureties.
On April 16, 1880, I arrived in Hong Kong, and imme- diately called on the Chief Justice, Sir John Smale (then in his 76th year), who received me in such a manner as led me to think that my appointment was extremely dis- tasteful to him. He told me that I had no right to under-
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take the office; that I was not the man he wanted; and seemed to look upon the appointment as one of which he ought to have had the patronage, and not the Colonial Office.
The Judicial Department of Hong Kong consisted of a Chief Justice, a Puisne Judge, a Registrar, who was also Official Assignee in Bankruptcy, Official Administrator, Acting Official Trustee, Registrar of Joint-Stock Com- panies, and Acting Registrar of the Vice-Admiralty Court; an Accountant, who was also Assistant Postmaster- General; two Deputy-Registrars, one of whom was Sheriff and Clerk of the Court in Summary Jurisdiction; the other, who was Clerk to the Chief Justice, Court Appraiser, and Marshal of the Vice-Admiralty Court; three Interpreters, two Clerks, Usher, Bailiff, and Process Server.
On taking over the office, on the day after my arrival, I found everything connected with the Registrar's duty in the utmost state of disorder; all the documents and records were lying about the office floor, and in other places, in confused heaps; the keys to the safes could not be found; many of the books of account were dilapidated and torn and portions missing; the Minute books and Record books were in like condition, and had been so kept as to be almost wholly unintelligible.
I found that in 1878 the then Deputy-Registrar, F. S. Huffam, had been convicted of embezzlement, and was undergoing penal servitude; that upwards of $60,000 was missing, without any effort having been made to trace any portion of the amount.
My immediate predecessor in office, the Honourable C. B. Plunket (since dead), was, when I took over the office, and had been for some time previously, incapacitated by illness.
The Chief Justice exhibited such a demeanour towards
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me, that I found it impossible to consult with him on any point, or obtain any directions, suggestion, or advice; I had, therefore, to rely entirely upon my subordinates, and the information afforded by the evidence taken by the Commission. The Puisne Judge was absent on leave, and within a short time after my arrival my predecessor (Mr. Plunket), and one of the Deputy Registrars (Mr. Mossop), who was also Clerk to the Chief Justice, went away on leave to Japan.
With the aid, however, of Mr. Barff, the Accountant, and of Mr. Barros, the Registrar's Clerk, I began to reduce matters into order. There were some fifty bankruptcies requiring to be wound-up (some of them dating from 1867), in thirty-one of which the convict Huffam had been specially appointed official assignee, and had only been formally removed in one, the Chief Justice having expressed a doubt of his power to remove. There were also a number of intestate estates in which none of the proper steps had been taken, and about $100,000 belong- ing to creditors and others, lying at the Hong Kong and Shanghai Bank to the credit of the Registrar, undistributed. Notwithstanding the large amount of pressing business in arrears requiring my constant attention, and my represen- tations to that effect, and the recommendation of the Com- missioners that the Deputy-Registrars who had been ex- pressly appointed for the purpose of attending the Court, should relieve the Registrar of that duty, the Chief Justice insisted on my attending in Court to swear the jury and witnesses, and perform those duties which are generally performed by the court crier or usher, and that too in an overbearing and offensive manner; and his general conduct towards me in public was so personal, that the Press com- mented severely upon his demeanour (see China Mail of April 26, 1880; Hong Kong Daily Press of April 27, 1880; Appendix, No. 2); and I found myself, very much against
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my will, an object of sympathy with all classes of the community, including the Portuguese and Chinese.
My position had become so intolerable that I sought an interview with the Chief Justice in his Chambers, and offered to do anything he might suggest, so that if possible I might be in accord with his views. He then expressed regret at what had taken place, and assumed a more friendly attitude towards me.
In order to the introduction of the improved system suggested by the Commissioners, I had had prepared (with the sanction of the Colonial Office), a set of books for the use of the Court modelled on the County Court system, and among others a book as used in the Rolls Court for the entry of all rules and orders. This latter book, on its arrival from London, I showed to the Chief Justice, who expressed his approval. I then entrusted the keeping of it to the Clerk of the Puisne Judge, who readily undertook the duty. After it had been kept for some time, it was on one occasion referred to in Court, and produced to the Chief Justice, who suddenly inquired who kept it, and on being informed, sent for the Clerk and told him that he was not bound to keep it any longer; and there being no other officer with sufficient leisure, the book as well as the others prepared in England at considerable cost, have been left unused.
About the middle of June, I received from the Colonial Secretary a letter, asking me to send in the estimates for the Supreme Court. As I knew nothing about the matter, I applied to the only Deputy-Registrar in the Colony (Mr. Sangster), for information; and acting upon what I received, prepared the estimates and forwarded them to the Chief Justice for his approval. He refused to receive them, because (he said) they ought not to have been addressed to me, as I was not the head of the department. I there- upon saw the Colonial Secretary, and having ascertained
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that the usual practice had been observed, sent in the estimates according to the usual course.
On June 24, 1880, I received a long letter from the Chief Justice, charging me with disrespect in assuming to myself the designation of "Head of the Department." To this letter I at once replied, refuting the charge, and expressing myself willing to carry out any rules which might be laid down, and asking for definite instructions. On July 5, 1880, I received another letter from the Chief Justice, inquiring about matters on which he had been previously informed, and making suggestions for doing what had already previously been done.
As soon as the documents in the office were classified and arranged (a work of very considerable labour), I pro- ceeded with the work of winding-up the bankruptcies. I prepared reports of the ascertained facts in every case, which I submitted to the Chief Justice for the necessary orders. In the intestacies I prepared a form of statement, analogous to the reports in Bankruptcy, and with the sanction of the Chief Justice, previously obtained, had it printed, but after using it for about a month, the Chief Justice suddenly, without any apparent reason, refused to receive it, and when I presented one in Court, flung it in my face, as being a document which ought not to have been shown to a Judge.
This conduct of the Chief Justice in Court, which excited the attention of the Press, was so inconsistent as regarded the duties of my office, that I felt it absolutely necessary to appeal to the Governor, which I did by letter, dated July 27, 1880 (see Appendix, No. 3), when I pointed out the necessity for rules, as I had previously called the attention of the Chief Justice to the subject without avail. The Chief Justice then raised the question of my right to address the Governor through the Colonial Secretary (as I had previously been in the habit of doing), and thereupon
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procured from the Governor a decision that he alone was the responsible head of the department, and that all com- munications were to go through him. As I had never raised the question, and should not have felt any objection but that he claimed also the right of refusing to forward such letters as did not meet his approval, I thought it well to ascertain what the previous practice had been, and thereupon examined the office letter book for that purpose, when I found that between August, 1872, and July, 1880, (the period during which letter books had been kept), ninety-six letters had been addressed by the Registrar to the Colonial Secretary direct, and that the Chief Justice had never before claimed to be the medium of communication.
On July 30, 1880, the Chief Justice addressed to me a long letter, in which, among other things, he says: “I hope you will not again assert that you are not a subordinate officer of the Supreme Court. Your persistence in that assertion has compelled me to insist on my authority with a peremptoriness as painful to myself as it possibly has been unpleasant to you." What could have prompted him to make this statement I am unable to conceive, see- ing that I had never on any occasion asserted that I was not a subordinate officer of the Supreme Court, nor had I endeavoured to do anything more than clear off the arrears of business which had been accumulating for so
many years.
When the Chief Justice, in open Court, had told me that I was only his clerk, I had indeed said that I was not his clerk, and that if I thought that my office made me his clerk, I should not retain it—that my office of Clerk of the Crown was of a totally different character to that of a Judge's clerk.
On the day following the receipt of the last-mentioned letter the Colonial Secretary, at the request of the Gover-
7
nor, sent for some inquisitions of which I had the cus- tody. I immediately despatched a messenger to the Chief Justice for instructions (he being then at the Peak, the summit of the Hong Kong mountains, where the climate was ten degrees cooler than where I was compelled to live). The messenger returned in the evening with a letter, which failed to afford the necessary information. I again sent him for an explanation, and after three days received instructions on which I was able to act.
In support of his claim to be the responsible head of my office, he removed several of the documents which had been in my charge, none of which were ever returned during the time I was in the Colony, although repeated requests were made.
In one case, "In re Robartes, deceased," the Governor, through the Colonial Secretary, asked me for a report and opinion as to the right of the Crown to certain funds in the Registry standing to the credit of Robartes, deceased. On examination of the papers, I advised that the money belonged to the personal representatives of the deceased, and that the Crown had no right whatever to any portion. My opinion, as expressed, appears to have given offence to the Chief Justice, for he mentioned it to me, and said that there was no occasion for my having expressed it, as the Robartes family were rich, and did not want the money; while, if the Crown's right had been admitted, the Governor would have granted the money to some persons who were in need. He thereupon took possession of the papers relating to the case, and never returned them.
To the letter of the Chief Justice dated July 30, before quoted, I returned an answer on August 2, in which I adverted to his insulting treatment of me, and asked that a copy should be forwarded to the Governor, to whose notice I was desirous that my position should be brought;
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but I have no means of knowing whether my request was ever complied with.
On August 3 my letter to the Governor, dated July 27, was returned to me through the Chief Justice, with an intimation that all letters connected with the Supreme Court work were to be sent through the Chief Justice.
On August 5 the Chief Justice, in answer to my request to have some rules laid down for my guidance (there being none in existence, notwithstanding the first recommenda- tion of the Commissioners), wrote as follows: "I will con- fer with Mr. Justice Snowden thereon, and settle such of them as may appear proper for future guidance."
Up to the time I left the Colony (January 12, 1881) not only were no rules drafted or prepared, but every sugges- tion respecting them was treated as an offence.
On August 10, after I had been told by the Chief Justice that the Clerk of the Puisne Judge was not bound to keep the Rules and Order Book before mentioned, and that his own clerk (who was also Deputy-Registrar and Court Appraiser) was not to receive orders from me, I wrote (in strict accordance with the first recommendation of the Commissioners, as contained in their Report) as follows: "I must therefore ask your Honour to be good enough to furnish me with the necessary details, specifying those officers who are to be considered as my subordinates, and in what respect I am to control and supervise
them.'
On August 12 the Chief Justice (through his acting clerk) replied to the above-mentioned letter as follows: "Instructions as to the position of the officers in the Registry Office relatively to yourself will be given verbally as soon as his Excellency the Governor shall have decided on the constitution of the staff. The Chief Justice says that you may apply to the Chief Justice as to this when he is attending the Supreme
Court, and that, as to. ordi-
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nary detail, Mr. Sangster, Deputy-Registrar, can give you sufficient information."
The letter winds up with an intimation that "all future correspondence must be carried on through the clerk."
Among the offices which I was required to undertake, but which had no connection whatever with the duty of Registrar, was that of Registrar of Joint Stock Companies. On looking through the ordinance creating this office, I found that the Governor was required to fix the remunera- tion; and, although I had undertaken to perform the duties which I was doing-I conceived that my perform- ance of them under arrangement, in no way exonerated the Governor from the duty of fixing the remuneration. I therefore pointed this out in a letter to the Governor. Now, although this matter in no way concerned the Chief Justice, yet on the 16th of August I received a letter from him, returning me the requisition I had made for the pay (theretofore attaching to the office), and referring me to the arrangement I had made with the Colonial Office.
This letter was written after the intimation that all future correspondence was to be through his clerk.
On September 7, 1880, the conduct of the Chief Justice had become so intolerable, that, availing myself of an opportunity given me by the Governor asking the mean- ing of a paragraph in one of my letters, I made a formal complaint of the treatment to which I had been subjected, and asked for an inquiry. (See appendix No. 4.) This letter was afterwards prepared and sent in triplicate for the purpose of being forwarded to the Colonial Office.
Previous to taking this step I had found myself com- pletely checked by the Chief Justice in my plan of wind- ing up the bankruptcies which were in arrear. In one of them--that of Vaucher and Blakeway, in which there was $3,669 deposited in the Colonial Treasury available for
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the Mail of 101882
affeans that
for
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dividend-I had, with the sanction of the Chief Justice, called a meeting of creditors and declared a dividend, but when I applied for the signature of the Chief Justice to draw the money from the Treasury, on August 9, he took a month's time to consider his decision, and on September 4, although no one had raised any question, delivered in Chambers a long written judgment, in which he made a number of trivial objections to the form of my petition, and finally refused an order on the ground that I was not official assignee.
He had previously authorized me in my capacity of official assignee to call the meeting and declare the divi- dend, but when it came to distribute the money my title: was absolutely denied, and I was charged with attempting to deceive the Court.
This was one of the bankruptcies in which the default- ing Deputy-Registrar (Huffam) had been appointed official assignee by the Governor in order to relieve the Registrar, and the money had been lying in the Colonial Treasury for more than ten years.
On this matter the Chief Justice, in giving evidence before the Commission appointed to inquire into the state of the Supreme Court, had said, “You will never be cer- tain that Mr. Huffam is not official assignee unless you have an ordinance as to that."
Acting upon this, and upon what the Chief Justice him- self had said to me as to the doubts he entertained, soon after my arrival in the colony, I consulted the Attorney- Chiffchic General, and he prepared an ordinance remedying the Killipps was to effets the pasting suggested defect, but the Chief Justice took grave offence at my having written to the Governor on the subject, and objected to the ordinance being passed. I then consulted the Puisne Judge who had previously made an order (which was then in force) removing Huffam and appoint- ing my predecessor in office in the bankruptcy of Kicer,
me exferred to
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and he agreed with me in entertaining no doubt as to the power of the Court. I thereupon came to the conclusion that, as the Bankruptcy Ordinance made me ex-officio official assignee without any qualification, it was my duty to proceed as I had done, but the Chief Justice seemed resolved that neither by ordinance nor in any other way should the Registrar be empowered to distribute the moneys saved from the wreck caused by the convict Huffam.
*.
Whenever a bankruptcy came before the Court the Chief Justice almost invariably made some remarks on the supineness of the creditors, but when I instituted the practice of affixing a notice in the vestibule of the Court- house inviting creditors to prove, I found that, so far from supineness being the characteristic of the Chinese, they were as diligent in claiming their rights, when they thought they would meet with recognition, as any people I have ever met with.
No sooner had my letter of September 7 been received by the Governor than the Chief Justice sent for me and proposed that I should withdraw it. He suggested that I should have four months' leave of absence, a free passage home, and as much compensation as could be arranged with the Governor, or as an alternative he was prepared to fight me. I at once accepted the first sugges- tion, and called upon the Colonial Secretary with the view of withdrawing the letter, but found that it had been sent on to the Governor, whom I then saw, and requested to withhold it for a time, as I thought we could arrange
matters.
Previous, however, to withdrawing the letter, I informed the Chief Justice that I should consult with the Puisne Judge, and on doing so found that I should be required to apologise. As I had been the wronged party through- out, I could not but decline; thus the matter fell through,
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and the Chief Justice thereupon recommenced the course of conduct he had previously pursued. I then discovered that the estimates, for preparing which the Chief Justice had charged me with disrespect, had been prepared by him without my knowledge, and the salary, which had in former estimates, been allotted to the accountant, had been divided between the two Deputy-Registrars, and the duties of the accountant allotted to the clerk of the Chief Justice, who was also Deputy-Registrar. By this arrange- ment, made by the Chief Justice unknown to me, the third recommendation of the Commissioners, which had been so far acted on, would have been virtually set aside, and I should have been saddled with the responsibility of the accounts, and been provided with an officer incapable of keeping books in lieu of a skilled accountant, an officer, too, who, being clerk to the Chief Justice, held himself free from my control. I thereupon, on September 27, addressed to the Chief Justice a letter on the subject, requesting him to lay it before the Governor.
On September 28, by way of carrying out the alternative threat which he had made, the Chief Justice took a step. of which I complained to the Governor in my letter of September 29. The conduct of the Chief Justice was so extraordinary that I cannot make the matter clear with- out referring to the letter in extenso. (See appendix
No. 5.)
In the early part of September a motion had been made in Court for an injunction to restrain me from selling some property which I had received from my pre- decessor in office as part of a bankrupt estate, and of which a portion had been sold by him-the injunction was granted, and the question of costs reserved-Mr. Justice Snowden telling me that the Chief Justice was of opinion that I was personally liable. While this question was in reserve, I was served with an order of the Court,
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requiring me to pay over to the Oriental Bank Corporation a sum of some $16,000, which was standing to my credit as Registrar in the books of the Hong Kong and Shanghai Bank. I at once obeyed the order, and thereupon I was served with a writ at the suit of W. H. Olmsted, the party contesting the right of the Oriental Bank Corpora- tion to the money. This writ was issued at the instiga- tion of the Chief Justice, and could not have had the sanction of the plaintiff, who was a merchant then resi- dent at New York. I at once reported the matter to the Court, and asked for instructions, but obtained no order. This action is still pending.
Shortly afterwards I was made defendant in another action, in which the official assignee of Bombay was the plaintiff. This was also at the instigation of the Chief Justice, and the writ was issued without the knowledge of the plaintiff. It was endorsed to recover some $35,000 moneys received.
Not only was there no controversy between the official assignee of Bombay and myself, but I was in complete accord with the solicitors of that official in respect to our course of action with regard to the assets of the bankruptcy he represented, and yet the Chief Justice not only refused to sanction my proposed paying over to him of the assets which I had in my hands (some $600), but actually ordered that I should be made a defendant in an action which he had brought against the Hong Kong and Shanghai Bank for moneys alleged to be due to the bankrupts. The bankrupts (Nursey
Kessowjee & Co.) were at the time in Bombay, undergoing imprisonment for fraud, all the creditors were also there, and with the exception of the small sum in my hands and the claim against the bank (which latter had a branch business in Bombay), all the assets also; and yet, although the Chief Justice had sanctioned the bankrupts' departure from the colony to Bombay (where they were tried and
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convicted), he refused to allow me to send the assets there too, as I had arranged with the solicitors.
After these proceedings had been initiated, the judg- ment making me personally liable for costs was pro- ounced, although I had been made aware of its purport previously. I thus found myself personally liable for costs in matters over which I had no control whatever. I had previously found that my predecessor in office had kept possession of extensive leasehold properties (some of which were licensed brothels), which I, as official assignee, was required to take over-properties involving liabilities. of all kinds, that in addition to these responsibilities, solicitors were invited by the Chief Justice to sue me for the acts of my predecessors, but when I proposed arrange- ments to settle, the Chief Justice refused his sanction, so that I had not even the ordinary power of a litigant to make terms with my adversary; and in addition to all this, the Chief Justice sought to deprive me of the pro- tection which publicity would have afforded me; he claimed the right of hearing all the cases in which I was concerned (either as official assignee or official adminis- trator) in Chambers, so as to exclude the Press, and when the cases were set down for hearing in Court he adjourned into Chambers, without even alleging the semblance of a pretext for so doing.
He had, in one of the bankruptcies of long standing, just previously made an order in Chambers on the convict Huffam to pay over to me as official assignee a sum of money-part of what he had embezzled. This order had been served and default made, and it was proposed to make the convict bankrupt upon the debt. The Chief Justice insisted that an action should be brought by me upon the judge's order, although I had no funds for litiga- tion, and although I pointed out that it had been long- established law that no action could be maintained on a
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judge's order. On my expressing this opinion he became greatly excited, told me that he did not want my opinion, and afterwards ordered me out of his chambers. This was done in a most offensive manner, and as he had on pre- vious occasions acted in a similar way, and had then called in a Deputy-Registrar to make an entry in his minute book that I had been guilty of disrespect, I determined to put an end to further action of the kind, and told him that as he had ordered me out, I should He then sent not return or attend again in Chambers. for the accountant, Mr. Barff, to make an entry in the minute book of my having been guilty of disrespect (there being no Deputy-Registrar then within the building), but he declined to record anything but what he had heard or
seen.
On the day following, a Court was held for general business, but as soon as my cases (which had been placed in a list) were reached, the Chief Justice adjourned into Chambers, without any apparent cause, or giving any reason for so doing. I objected to attend in Chambers in my capacity of litigant, and thereupon the matter stood over. I should here remark that the Ordinance provides that all bankruptcy matters should be heard in Court, and there is no provision whatever for hearings in Chambers. In probate matters the Ordinance provides that all matters shall be heard in Court unless the parties or one of them. desire to have their application heard in Chambers. Thus my right to have everything heard in Court was really beyond question.
The cases were again set down in the list for hearing in Court on the next Court day. The Chief Justice again came into Court, and without any apparent cause, adjourned into Chambers, and I again objected that the cases were for the Court. For the third time they were set down for hearing in Court; the Chief Justice again, without apparent
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reason, adjourning into Chambers, on which I made a statement explanatory of my reason, in the presence of three persons, of whom two were personal friends and one a reporter, who reported (though very incorrectly) what I said in the newspaper. The Chief Justice (who was not present), thereupon charged me with deliberate insubordi- nation, although what I said was not in my character of Registrar, but in that of a litigant (personally responsible as he had held me to be), who had been denied a hearing in public. On the following day the Puisne Judge came into Court and made a statement, in which he endeavoured to show that the Judges had a right to hear every applica- tion in private, and that no one could claim, as of right, to be heard in public: he afterwards sent for me, and said he would take my cases if I would attend him in Cham- bers. As I had always been treated with courtesy and respect by him, I at once agreed (reserving my rights) to attend in Chambers, although I suggested that I thought it would be advisable in the interest of the other parties concerned, that the cases should be heard in public. Accordingly the Court adjourned into Chambers, and no sooner was the nature of the first application explained, than the Puisne Judge at once admitted that it was more proper to be heard in open Court, which was afterwards done and the cases were there disposed of.
I was afterwards called upon by the Governor to answer the charge of deliberate insubordination.
On October 23, I wrote in reply that I objected to answer any charge made by the Chief Justice against me until I had had an opportunity of proving the previous charge which I had made against him.
I was then served with an order for payment of costs in the matter of Ng Akui, in which a sale previously ordered by the Chief Justice had been stopped by him: soon afterwards I was served with another order for costs in the
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matter of Ho Kwong Ming, in which a sale had been stopped in like manner.
On October 29 I was interdicted from office by the Governor, and finally suspended on December 31. I then applied for leave of absence, which was granted, and I left the colony by the mail of January 12, 1881, having previously ascertained that all the correspondence and documents connected with my suspension, were ready for transmission to England.
On arrival, I found that they had not been sent, nor do they appear to have been sent until nearly a month after I left. In the meantime the Chief Justice appears to have announced his intention to retire.
Just prior to leaving the colony a pamphlet was given to me, by which it appears that in 1867 (the date of its publication), the Chief Justice had an altercation with Mr. É. H. Pollard (then one of Her Majesty's Counsel in Hong Kong, and now practising at the English Bar), who com- plained to the Governor, Sir R. G. McDonnell. In his letter dated July 4, 1867, Mr. Pollard, after setting out the facts (which appear to have been uncontradicted), says, "I therefore accuse the Chief Justice of unjust and tyrannical conduct in the exercise of his functions, and of having misrepresented facts to enable him to perpetrate under colour of his office, an act of malicious injustice to me, which I assert renders him unfit to be entrusted with judicial power, or to fill the high office of Chief Justice."
"I believe I have no appeal to any judicial tribunal in existence, and I distinctly accuse the Chief Justice of having abused his power and of unfitness for office."
The Governor (Sir R. G. McDonnell), in his answer to Mr. Pollard's complaint, dated July 5, 1867, says,
"It is quite evident that the matter cannot now rest where it is without imperilling the character of all law proceedings in.
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the Supreme Court, and lowering its reputation in a manner prejudicial to the most important interests of the colony. Neither can his Excellency permit a member of the Bar, and one who enjoys the position of a Queen's Counsel, to advance such charges against the Chief Justice, couched in language so strong, without calling on him either to withdraw those charges, or adopt the most legitimate means for substantiating them.”
It appears that Mr. Pollard, in accordance with a sug- gestion of the Governor, petitioned the Judicial Com- mittee of the Privy Council, before whom the Chief Justice appeared by counsel, and the proceedings complained of were reversed.
None of Mr. Pollard's allegations were denied by the Chief Justice, as appears by the case as reported. (See 2 Law Reports, Privy Council Appeal Cases, p. 116.)
I may be permitted to give an extract from a leading article in the Hongkong Daily Press of July 27, 1880, to the editor of which I am a total stranger. "Of the merits of the squabble we cannot express an opinion; that we leave to professional hands: but of the absolute impro- priety of the scene enacted yesterday even the most indif ferent spectator or the most partial of Sir John Smale's partizans and admirers cannot fail to form a very sound estimate. We have never heard the fons et origo mali of the existing feud between the parties concerned in the scene referred to; and, therefore, in whom the offence lies cannot be arrived at; yet we are not without some guide whereby to form a judgment; for while one of the parties is a newly arrived gentleman, of whom we know nothing, save that he seems a most efficient and industrious officer, and of whom those competent to express an opinion affirm that he is the best Registrar that ever held office in this colony; the other is a dignitary subject to ebullitions of passion giving birth to outbursts of intemperance and
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caustic remarks, some of which have been placed on record in the journals of the colony."
I may further give one other extract from the Hongkong Daily Press, dated January 12, 1881, the day on which I left the colony, as an illustration of public opinion.
"It was indeed an ill moment that gave Mr. Gibbons the opportunity of joining the official staff of this colony. After a lengthy and honourable professional career in England, the circumstances were indeed calamitous which induced him to leave the path he had thus far safely trod. No doubt in the expectation of greater advantages, he left home and friends to join a community remarkable for intelligence and courtesy, there to lend the aid of his experience and learning to the furtherance of the sacred objects of justice and order. The realization of his dreams proved but the wildest nightmare. In the guise of justice he found oppression, and order he learned to be but an euphemism for contention and strife. Such was the dis- illusionising of this hapless man.
"It may be conjectured than in the usual course an inquiry will be held upon the Registrar's conduct. Per- haps for the sake of the gentleman himself it were well that such an inquisition should be made, when he will have an opportunity of making known to Government and the public under what extraordinary circumstances it became possible that a man of years, of learning and activity, a man indefatigable in duty, an official specially selected by the home authorities to set right the entangled condition of the Registry, and the ablest Registrar the colony ever possessed, came, regardless of all personal consequences, to appeal to the public and the press as his only protection."
I have endeavoured to be concise at the risk of being obscure, and I have omitted to mention many matters which would be relevant had I any other object in view
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than a defence of my position; but if I felt any duty to expose the state of things which I found at Hongkong I should require a much more lengthened statement, and to go into details more taxing to the powers of credence than any I have yet advanced.
Kimberly I do not, in the slightest degree, know what documents
76445 20 have been transmitted to the Colonial Office, nor (beyond hamgraph what I have herein stated) what is the case against me; bing income but, without giving me any opportunity for explanation,
I am called upon to resign.
I have always been, and still am, ready to complete my engagement in good faith and conscience, and I believe my return to the colony would be hailed with general satisfaction.
HY. FRED. GIBBONS.
1!!
APPENDIX.
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APPENDIX No. 1.
Extracts from the Report of the Commissioners appointed by His
Excellency JOHN POPE HENNESSY, C.M.G., Governor of Hong Kong, to inquire into certain offices of the Supreme Court.
Ist. It is apparent to the Commissioners that the thorough re- organization of the Offices of the Supreme Court is necessary, that the rules and orders authorized by Ordinance 13, of 1873, should be framed, that a scale of costs and fees should be drawn up, that each officer should be bound to find security in a suffi- cient sum, and that the value of such security should be annually ascertained, that the duty of every officer should be clearly de- fined to him, and that until this is done there can be no hope of a satisfactory solution of the present difficulties and inconveni- ence arising from the want in the Supreme Court of a perfect system.
2nd. The Commissioners recommend a slight addition to the present staff, and they are of opinion that their recommendations, if thoroughly carried out, will add very considerably to the revenue to be collected from the various branches of the Court. It is considered that the Registrar's duties, at present are greater, if thoroughly performed, than it is competent for any one person to perform, as in addition to duties attendant upon proceedings in the various jurisdictions of the Supreme Court, he has all the important accounts of the Court to make up and numerous Administrations and Bankrupt estates to attend to without any assistance whatever.
3rd. The Commissioners recommend that a competent account- ant with a knowledge of mercantile affairs should be appointed
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who should take upon himself the keeping of all the accounts of the Supreme Court and thus relieve the Registrar, and allow him time for the general supervision of the officers of the Supreme Court including its Summary Jurisdiction.
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7th. The Commissioners are likewise of opinion that with re- gard to Bankruptcies a most imperfect system has, up to the present, been adopted in realizing and winding up the estates. They have ascertained that the few rules framed under the pro- visions of the Bankruptcy Ordinance, 1864, are imperfect.
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8th. The Commissioners consider it advisable that two com- petent officers should be appointed, to be termed Deputy-Regis- trars of the Supreme Court, whose duties more particularly should be attending in the Courts and performing the duties heretofore performed by the Registrar and the Deputy-Registrar, which would give the Registrar, being relieved of those duties, time and opportunities to attend to other matters, which, up to the present time, appear to have been very much neglected. The duties of these officers should be defined and directed by the Registrar.
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APPENDIX No. 2.
Extract from "The China Mail," April 26, 1880.
Another of those " scenes " which have lately taken place in the Supreme Court here occurred this morning. Such exhibitions have of late become so glaringly frequent and so oppressive to the members of the bar and every other person who has any- thing to do before my lord the Chief Justice that it is now high time that they should be mentioned with a view to some steps being taken to remedy this unpleasant state of things.
Extract from the Hong Kong" Daily Press," April 27, 1880.
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The case for hearing on the occasion in question was that of Kwan Hoi Chune and others, and Fong Sui Fung and others. The Attorney-General and bar who represented the parties were in attendance and twelve special jurors were present in answer to their summonses. Amongst the spectators were some English-speaking Chinese. The case was not heard, the Court collapsing, in consequence of the querulousness and im- patience of the Chief Justice. His Lordship was evidently in one of the worst of his occasional ill humours, and so far from taking pains to conceal it he gave it a free rein and permitted it to trample bar, officers, and jurors alike under foot. one in the Court was insulted; the Attorney-General was flouted and denied a hearing.
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Scant ceremony too did the Registrar receive
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APPENDIX No. 3.
The Hon. F. STEWART, LL.D., Colonial Secretary.
27th July, 1880.
SIR,
I have the honour to submit for the consideration of His Excellency the Governor the following statement with regard to the conduct of the business of the Supreme Court.
On my assuming the duties of my office, now three months since, I was at once struck with the confusion into which I found the business had been permitted to fall. There were bankrupt- cies of many years standing which might and ought to have been wound up years before, and many intestacies in which the ac- counts had been in arrear beyond the usual six months and even twelve months; but what made the greatest impression on my mind was the entire absence of any general rules of practice by which the business of the Court was to be conducted. Having ascertained that by the Ordnance No. 12, of 1873, the Chief Justice had certain powers with regard to rules, I suggested to the Chief Justice that some rules should be laid down, and if neces- sary, I should be glad to prepare them as I had been furnished by the Colonial Office with the latest authorities on the subject; but finding that the Chief Justice was utterly opposed to any rules being framed I altered my course and proceeded to act as nearly as I could in accordance with what the general consensus of legal opinion in England has pronounced to be the most ap- proved system. I had brought with me from England a book prepared for the purpose of entering every Rule of Court or Judge's order which should be drawn up, so as to have a complete record of all proceedings, and in order to assimilate as far as pos- sible the practice in Probate with the practice in Bankruptcy. I prepared a form of application for all cases in which it was necessary that I should take a grant of administration in my official capacity so, that if reference should at any time be made to the papers it could be seen at once under what circumstances the grant had been made to the Registrar. I submitted both plans to the Chief Justice for his approval, and having obtained
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his verbal sanction, I entrusted the keeping of the rule and order book to Mr. Hazeland who was then acting as Clerk to the Chief Justice, and he cheerfully undertook the duty. The form which I had prepared I sent to the Colonial Secretary with an application to have it printed, which was duly accorded, and the form has been in use ever since.
For some time lately, the Chief Justice has exhibited symptoms of cerebral irritation, which makes it absolutely neces- sary that some definite rules should be laid down by which I may be guided and to which I may appeal in the cases which unfor- tunately arise on almost every occasion when the Chief Justice presides.
Some short time back when the rule and order book was referred to in Court the Chief Justice demanded to know by what authority the book had been kept, and when I informed him of the fact, sent for Mr. Hazeland and told him that he was not bound to keep the book, and saying to me that I had no right whatever to order his clerk to do anything.
This, however, I pass over as a very trifling matter, but when as yesterday, the matter takes place in public, it becomes too serious for me to remain any longer silent. The forms which, as before stated, I had prepared, have been in constant use since they were printed and have been repeatedly before the Chief Justice, but yesterday, while evidently under the influence of severe cerebral irritation, the Chief Justice rejected them and re- fused to make any order, because he said the application (for that which in fact is my official duty) ought to be made by petition— it having been, as he stated, the practice of the late Mr. Alex- ander to petition in all such cases-an assertion which I find on search is not borne out by the papers in the office.
I feel it my painful duty to bring these matters to the notice of His Excellency as showing the absolute necessity for some rules of practice, for whether I continue in the office I hold or some other gentleman be appointed in my stead, it will be utterly impossible to preserve any respect for the Court in the public mind if some definite rules are not framed and published.
There are other very important matters to which I should wish to ask His Excellency's attention, but as they are more personal to myself they all fade into significance before the gravity of the crisis which now threaten the integrity of the Supreme Court.
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SIR,
APPENDIX No. 4.
The Hon. F. STEWART, LL.D., Acting Colonial Secretary.
THE SUPREME COURT, HONG KONG.
7th Sept., 1880.
I have the honour to acknowledge the receipt of your letter No. 1,125 dated Sept., 4, 1880, in which His Excellency the Governor invites me to explain my meaning as to the case I asked to have referred to the Colonial Office. I have to thank His Excellency for affording me the opportunity which I shall now endeavour to make available.
When I accepted my appointment my first inquiry was as to the mode by which I was to communicate with the Government. I had been furnished with a copy of the Commissioners' Report of May 19, 1879, which showed clearly that some reform was necessary, and I felt that it would be advisable from time to time to make suggestions to the Government. Had I been told that the Chief Justice was the proper medium I should at once, for obvious reasons, have declined the appointment; but the answer to my inquiry was that the medium of communication was the Colonial Secretary. Accordingly, when I landed in the colony I called first on His Excellency the Governor, who received me with distinguished courtesy, then on the Colonial Secretary and then on the Chief Justice, and the reception I met with was such that only the respect I felt for the office he held, prevented me from giving expression to my feelings. It was manifest by his conduct that my advent afforded him no satisfaction, but having resolved to enter upon my duties and perform them with as little friction as possible, I affected to disregard the discourtesy with which he treated me. On my taking over the office every inter- view I had with the Chief Justice was equally unsatisfactory, until matters culminated towards the end of May. I was then thoroughly wearied out and told him frankly that I could not
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bear with his treatment any longer; on which he expressed him- self in a manner which led me to believe that a better under- standing would prevail, and thereupon I accepted an invitation which he then and there gave me to a dinner at his house. After this there seemed to be a better feeling on his part, and I con- tinued the work in the office. The question of audit then arose, and the Chief Justice sent me a memo asking my opinion on the capacity of Mr. Freire to act as auditor of the accounts, but as he was an officer belonging to another department over which I had no control, and I had had no previous acquaintance with him I declined to express any opinion on his capability and gave my reasons. This appears to have given offence to the Chief Justice, for immediately afterwards he raised the question as to whether he or I was the responsible head of the office. This question I evaded, for though I believed myself to be the respon- sible head of the office, yet I was anxious not to offend by saying so. Then arose the question of the medium of communication which His Excellency has decided contrary to what I conceive to be the understanding with which I left England.
It soon became evident to me that the Chief Justice was not desirous that I should proceed with winding up the bankruptcies with which the convict Huffam was connected, for when I first mentioned them to him, he angrily demanded to know at whose instigation I was acting, and when I answered, as was the fact, that I was not prompted by any one, he contradicted me in a rude manner, and said he knew Mr. Brereton had "put me up" to doing what I was then about, which was not the fact, although I have since been in communication with Mr. Brereton's firm (who represents some of the creditors) on the subject. Not only did the Chief Justice act discourteously towards me when I met him in Chambers, but he treated me publicly in such a manner that the Press commented on his behaviour on more than one occa- sion. I had previously brought to the notice of His Excellency a passage in one of his judgments (sent to the Press for publica- tion) which reflected most strongly on my character for honesty and integrity, but on which no further steps have yet been taken. Notwithstanding all these annoyances I have continued the work of my office and have reduced that which I found in the utmost disorder to something like order and regularity. However, now that I have come to the point of dealing with the bankruptcies
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with which the convict Huffam was connected, I am met with difficulties which the power of the Chief Justice enables him to raise, and which I am unable to overcome. I have through the medium of the Chief Justice asked to have brought to the notice of His Excellency one of these obstructions, but with the ingenuity of the Chief Justice and the advantage which his posi- tion and long acquaintance with the colony gives him I am power- less to contend any longer.
The Chief Justice has written me two long letters dated respectively June 24, 1880, and July 30, 1880, which I have answered categorically in my letters dated respectively June 25, 1880, and August 3, 1880, and when I have asked him, as I did in my letter dated August 10, 1880, as the responsible head of the office for definite instructions for my guidance and to state who are the subordinate officers whom I am required to control and supervise, he has delegated to his clerk the duty of acknowledging my letter, and by that medium on August 12, 1880, desired me in future to write to him through his clerk and referred me for particulars I required to Mr. Sangster.
It was the case, as before stated, and contained in the letters mentioned which I wished to be brought to the notice of the Secretary of State, for I find in my present position I am not only subjected to personal treatment which is almost intolerable, but my usefulness as a public servant is reduced to a nullity. I am satisfied that the conduct of the Chief Justice will not be approved of by the authorities in England, and as my health will not en- able me to bear much longer the harass and worry which it causes, I must pray His Excellency to accord me an inquiry, and failing that, to obtain the sanction of the Secretary of State to my being released from my engagement as soon as another gentleman can be appointed to succeed me.
I have the honour to be, Sir,
Your most obedient servant,
HY. FREDERICK GIBBONS,
Registrar.
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APPENDIX No. 5.
The Hon. F. STEWART, LL.D., Acting Colonial Secretary.
SUPREME COURT HONG-KONG
September 29th, 1880.
SIR,
(Omitting the formal parts.)
Among the bankruptcies which I found pending when I took charge of my office in April last, was that of Ng A Kui, a female, who was adjudicated bankrupt in March 1878, but who has never surrendered. On looking into the papers which I found in the office, it appeared that the bankrupt was connected with several brothel keepers in the colony, and that a large majority of the creditors who had proved were females.
The assets consisted of a life interest in some Chinese Houses, which appeared to have been let on lease by my predecessor in office, without having obtained (as far as I could ascertain) any order of the Court and contrary (as far as my information goes) to the principles on which official assignees generally act, and the practice in bankruptcy. This lease had been prepared by Messrs. Brereton and Wotton to one Leong Cheong, and the rents re- ceived from him were paid to me. Finding on enquiry that several of the houses were of a disreputable character, I mentioned to the Chief Justice my objection to being connected with the management of any such property; on which he said that it was not thought anything of in the colony and that if I wished to make any objection, I had better place it before him formally: I had before then prepared a report asking for directions to hold a dividend meeting for the purpose of distributing among the cre- ditors the moneys which where then in hand, but after the before- mentioned intimation of the Chief Justice, I prepared a further report, setting out the nature of the bankrupt's interest, the pro- bability of the parties entitled in reversion becoming the pur- chasers, and the character of the tenants, and paying for directions as to a sale. These reports were presented to the Chief Justice in
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open court, in the usual manner, and an order was made autho- rizing me to sell. The property was then advertised for sale, and negotiations entered into with the agent for the parties entitled in reversion (who were in America), and as time was necessary for communication with them, the sale by auction was not fixed until after their final answer was received. It then appeared that the then official assignee had neglected to register his appointment, and until that was done the title was defective. Accordingly an order which had been made by the Court in September, 1878, had to be drawn up and registered, so as to comply with the Ordinance No. 5, of 1864, sec. LXXXV., and complete the title-the day of sale was then fixed and advertised. The conditions of sale were prepared, and the auctioneer instructed. Yesterday, without any previous intimation on the subject, the Chief Justice sent for me and required to know if I had any authority for issuing the adver- tisement for sale which he then had in his hand. I replied that I had, and produced the order under the seal of the court. He then demanded to see the minute book which I produced. Enquir- ing in a most insulting manner, as though I had been proceeding in a clandestine way without any authority-and when he found that every step had been taken in the most regular way, and that the order had been made by himself, he said it was an improvident order which ought not to have been made. He then informed me that Mr. Wotton had objected to the proposed sale, as not being for the benefit of the estate, and handed me an affidavit of Mr. Wotton in which it was stated that on behalf of three credi- tors named and others not named he objected to the sale as not being for the benefit of the estate-the three creditors named were I believe all females whose proofs amounted to some $5,000 out of about $36,000 total proofs. I then explained to the Chief Justice as the fact was that Mr. Wotton had objected, when the advertisement for sale first appeared in May last, not to the sale, but to the employment of Messrs. Stephens and Holmes, his own firm having been employed in the matter by my prede- cessor in office. I further stated the objection to my continuing the management of property of that character, on which the Chief Justice stated that my objection rested on mere gossip, and as I had no affidavit of the facts, he would not receive my statement. this I replied, that my information was derived, as in fact it was, from the books of the Registrar General in which three of the
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houses in question were entered as licensed brothels. On this the Chief Justice turning to Mr. Wotton who had come into the room meanwhile, asked what order he desired, and told me I was talking nonsense, and insulted me so grossly, that I could not with due regard to my own self respect take any further part in the discussion.
The Chief Justice thereupon contrary to what he laid down in the case of Pustau's Bankruptcy directed that a meeting of credi- tors should be called to appoint a creditors' assignee to relieve me from my position, and in the mean time stayed the proposed sale.
Now as regards myself, I am quite content to be relieved from a position which I feel is as unbecoming to myself as to the court of which I am an officer, but the action of the Chief Justice in Pustau's case, which prevented the creditors (who were anxious to elect an assignee) from taking that course on the ground that by the ordinance it was only at the first meeting the creditors had the right to choose, and in the present case, his ruling that they have a right to choose at a subsequent meeting, although they have already exercised their choice, and the assignees chosen have been removed, and the official assignee appointed in their place, has placed me in such a position, that I know not what to do. There is such a degree of uncertainty about it, that it is impossible to act, and while the Chief Justice holds as I understand he does, that he has the right to make me personally liable for costs in cases where I differ from him in opinion, it will be seen that my objection to the present proceedings is one of the very gravest character and sufficient to justify, if not demand, immediate action. on the part of his Excellency.
Your most obedient servant,
HY. FRED. GIBBONS,
Registrar.
Woodfall and Kinder, Printers, Milford Lane, Strand, London, W.C.
ANNA BUKSER A