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Colonial Cases

Khoo Teong Poh and Webb v. Giles, 1880

[civil procedure]

Khoo Teong Poh and Webb v. Giles

Supreme Court for China and Japan
French C.J., 22 December 1880
Source: The North China Herald, 30 December 1880




Shanghai, 22nd December.

Before G. FRENCH, Esq., Chief Justice.


   Mr. W. V. DRUMMOND appeared for the plaintiffs.

   Mr. A. MYBURGH, Acting Crown Advocate, appeared for the defendant.

   An action has been instituted in this Court by the plaintiffs, who are connected with the Bun Hin line of steamers running between Singapore, Hongkong, Swatow and Amoy, against the defendant, who is acting British Consul at Amoy, and on his behalf Mr. Myburgh filed a motion asking that the action be heard at Amoy instead of at Shanghai.  This motion came on for hearing today.

   I  support of the motion Mr. Myburgh had filed the following affidavit:-

   I, ALEXANDER MYBURGH, of Shanghai, in the Empire of China, barrister-at-law, make oath and say as follows:-

  1. - That I am Counsel for the above-named defendant, who has instructed me to apply to have this suit heard at Amoy instead of at Shanghai for the following reasons.
  2. - That the defendant will, on account of his official position, be unable to appear in person at Shanghai, and will thereby suffer grievous prejudice.
  3. - That none of the parties to this suit, and none of the witnesses likely to be called therein, reside at Shanghai.
  4. - That all the defendant's witnesses in this suit being at Amoy, the defendant will be precluded from producing most important evidence on his defence of the case if heard at Shanghai.
  5. - That many of the original documents referred to in the plaintiffs' petition and in defendant's answer are filed and must remain in H.B.M.'s Consulate at Amoy.
  6. - That there may be local circumstances connected with the case which in the interests of justice should be verified by the Court on the spot and without delay.
  7. - That the plaintiffs' case will be in no way prejudiced by the removal to Amoy nor will they be personally inconvenienced.
  8. - That I consider the defendant's reasons well founded, and that he would be materially prejudiced in his defence unless the case is heard at Amoy.
  9. - That there is no one at Amoy authorised to administer oaths, and the defendant has therefore been unable to swear an affidavit in support of my application.

   Mr. MYBURGH then pointed out that under the 8th section of the Order in Council,

"the Supreme Court shall hold its ordinary sittings at Shanghai, or, in emergency, at any other place within the jurisdiction of the consulate of Shanghai; but may at any time transfer its ordinary sitting to any such place in China as one of her principal Secretaries of State, or Her Majesty's Minister in China approve."

He also read sections 35, 36. 37 and 38 of the Order in Council, laying stress on the 37th, which provides that

"the Supreme Court shall have, in all matters civil and criminal, an extraordinary original jurisdiction throughout China and Japan, concurrent with the jurisdiction of the several provincial Courts, such extraordinary jurisdiction to be exercised subject and according to the provisions of the Order in Council."

Mr. Myburgh argued that under that section his Lordship had original jurisdiction throughout China and Japan, and  section  eight gave him power to remove the court to Amoy, Foochow, or anywhere in China, with the approval of the Minster at Peking, or one of Her Majesty's Principal Secretaries of State.

   His LORDSHIP said that section 8 provided that the Supreme Court should hold its ordinary sittings at Shanghai, or, on emergency, at any other place within the district of the Consulate of Shanghai; and it might, at any time, transfer its sittings to any other palaver in China; but this removal had to be done with the approval of one of Her Majesty's Principal Secretaries of State of Her Majesty's Minister in China.  Then, section 35 declared that

"all Her Majesty's jurisdiction, civil and criminal, exercisable in China, shall, for and within the district of the consulate at Shanghai, be vested exclusively in the Supreme Court as its ordinary original jurisdiction."

 If it were not for another power vested in the Court under the Order in Council, the Court could not take cognizance as part of its original jurisdiction, of anything taking place outside the Consular district of Shanghai.  Section 35 confined its ordinary jurisdiction exclusively to the original jurisdiction in the district of the Consulate of Shanghai. That section, however, was followed by another section, the 37th, which superadded to the original jurisdiction ion the district of the Consulate of Shanghai, an extraordinary original jurisdiction concurrent with the originals jurisdiction of the several Provincial Courts. Thus the process of this Court could reach the Provincial Courts under its extraordinary original jurisdiction, and it had jurisdiction in regard to any matter over which the provincial Courts had jurisdiction.  Its jurisdiction ran, as it were, side by side with the jurisdiction of the provincial Courts; so a party could have his election whether he would proceed in the Supreme or in the Provincial Court.

   The section 38 provided that the Judge of the Supreme Court may from time to time visit in a magisterial or judicial capacity any Provincial Court, and hear any case pending or arising within its district; and the following clauses dealt with the reference of cases from the Provincial to the Supreme Court.  But the Order in Council was silent as to the reference of cases from the Supreme to the Provincial Courts.

   My. MYBURGH said he put a broader interpretation on these sections.  With regard to the 35th section, his view was not that the ordinary jurisdiction of the Supreme Court was confined to Shanghai, but that all other jurisdiction was excluded; that none but the Supreme Court could have jurisdiction in Shanghai.

   His LORDSHIP concurred with Mr. Myburgh, and said that under section 36, the jurisdiction of Provincial Courts was confined to their Consular districts.

   Mr. MYBURGH said that was the difference between the Supreme and the Provincial Courts, the jurisdiction of Provincial Courts being confined to their respective districts, while the Supreme Court had extraordinary concurrent jurisdiction throughout the several districts of the Provincial Courts.  His contention was that the Supreme Court had not only jurisdiction, but could sit, as the Supreme Court, in Consular districts, section 8 conferring the power to transfer the sitting.

   His LORDSHIP said that was not the inference he strew from the section, and he asked Mr. Myburgh whether he maintained that he (his Lordship) had power, by his own order, and without the approval of the Secretary of State, or the Minister, to remove the sitting.

   Mr. MYBURGH replied that that was his argument.  His Lordship could make the order, and subsequently, before removing the sitting, obtain the consent of Her Majesty's Minister in China, or one of H.M.'s Principal Secretaries of State.  He based this contention on both the 8th and 37th sections of the Order in Council.  He instanced his Lordship going on circuit.

   His LORDSHIP replied that his jurisdiction on circuit was confined to the work actually arising in the district or pending in the Provincial court.  That was under section 38.

   Mr. MYBURGH said it was unfortunate they had no authorities to guide them.

   Mr. DRUMMOND said the application was one of great importance and one of extreme novelty, the point never having arisen before so far as his experience went or the records of the Court showed.

   The plaintiffs in this suit were Khoo Teong Poh, a naturalised British subject, and Frederick Webb, merchants and ship-owners at Amoy; and the defendant was Mr. Herbert Allen Giles, H.M.'s Acting Consul at that port.  The plaintiffs, acting under the power given them under section 37 of the Order in Council, had elected to commence the suit in this curt.  They could have commenced the suit at Amoy or Shanghai, whichever place they preferred, and they preferred Shanghai.  The suit had been commenced, and it was now pending, and defendant, by the present motion, wished for the transfer of this Court to Amoy.

   Mr. MYBURGH said he had studiously avoided using that expression in his motion.  He had simply asked for the case to be heard at Amoy instead of Shanghai, not for the transfer of the court to Amoy.

   Mr. DRUMMOND said the simple question was whether the Court had jurisdiction to remove the hearing of a suit pending in this court to Amoy or to any other Provincial Court in China.  The jurisdiction of the Supreme Court was defined in section 4 of the Order in Council, which he read.  He pointed to that section as an important ingredient showing that the jurisdiction of the court was confined to the four corners of the Order in Council.  They could not travel beyond it; they could not establish jurisdiction by inferences.

   He then read section 8, explaining that he took "an emergency" to mean such a thing as an outbreak of cholera, a disturbance, or any similar danger, as had been suggested by his Lordship, but it could not be interpreted as giving power to the Court to remove a case entered on its files from Shanghai to any of the Provincial Courts. That was not the intention of the framers of the order in Council.   He contended that the reasons set forth in the affidavit were not an emergency as were intended by the words of the section, and was insufficient, apart from there being no authority in the Order in Council for the removal of the suit to Amoy.

   He then casually alluded to section 25 of the Order in Council, as touching on the question of jurisdiction, and then referred at length to sections 35 to 38 inclusive.  Clause 37 was, he said, the most important of all, inasmuch as it gave power to British subjects at the outports to elect whether they would bring their suits in the Provincial Court or in the Supreme Court.  But he would submit that there was nothing in that section, or in any other section of the Order, which authorised the removal of a suit once commenced in this Court to a Provincial court.  Clause 38 provides that the Judge of this Court can visit in a Magisterial, or judicial character, any Provincial Court, and while there can inquire into and determine any case which is then pending in that Provincial Court, but the present case was not pending in the Provincial Court at Amoy; it was a cause pending in this Court, and therefore he would submit that that clause could not be relied on by the defendant.

   Clause 39 provides the machinery whereby the court can cause the removal of any case pending in a Provincial Court to this Court, but he did not see how it could be inferred that this court could remove a case pending before it to a Provincial court.  If it had been intended to confer any such power upon the Court, it would have been so expressed in the Order in Council in so many words.

   In conclusion, he would remark that the option which the plaintiffs had exercised should not lightly be interfered with.  Such a step as that which the Court was invited to take by the defendant did not appear to be in any way authorised by the Order in Council, and should the case subsequently go Home on appeal, such an order as that sought by the defendant might b e held to invalidate all the proceedings.

   Mr. MYBURGH, in replying, said that section 37 no doubt gave a person the right of choosing the Supreme Court, but not the place where the Court should sit.

   His LORDSHIP said the point was not new to him.  He had given it great consideration, and he did not think it would be of any use postponing his decision.  The suit was ripe for hearing, and the motion was an application on the part of the defendant for the suit to be heard at Amoy instead of at Shanghai.

   The question, then, was whether the Supreme Court had jurisdiction to order a Supreme Court case to be heard in the district of a Provincial Court.  Having read the various sections of the Order in Council which had been referred to during the argument, he said that if the sitting of the Supreme Court could be transferred to Amoy the ordinary sittings at Shanghai must be suspended, because there was no provision for the sittings to be held at two places.

   The provisions of the Order in Council pointed out very distinctly what was to be done with a case instituted in the Provincial Court, which appeared to be fit to be heard in the Supreme court, or the Judge of the Supreme Court could hear an action in a provincial Court, but the Order in Council was perfectly silent on the subject of a case instituted in the Supreme court being transferred to a Provincial Court for trial. There was no provision for a Supreme Court case to be heard other than in the Supreme Court itself.    It therefore seemed to him that he had not power to make the order asked for.   However convenient it might be for the case to be heard at Amoy, convenience did not give him jurisdiction.

   The motion was therefore refused with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School