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Colonial Cases

R. v. Hong Kong and Shanghai Banking Corporation, 1882

[criminal procedure]

R. v. Hong Kong and Shanghai Banking Corporation

Provincial Court, Japan

Robertson A.J., 3 January 1882

Source: North China Herald, 24 January 1882


Tuesday, 3rd January, 1882.

Before RUSSELL ROBERTSON., Esq., Acting Judge.

THE QUEEN (on the prosecution of the Superintendent of Customs at Hiogo)



  Mr. Lowder appeared on behalf of the Superintendent of Customs and Mr. Montague Kirkwood on behalf of the Bank.

  On the Court being opened, the attention of the learned counsel engaged in the case was called to Art. 8, Sub-sec. 3, of the Order in Council of 1878, and considerable discussion ensued between the Court and the Counsel as to the exact bearings of its provisions.  Eventually the following judgment was delivered:-

 After recapitulating the objections of the Counsel for the Bank to the application for a special case made by the Counsel for the Japanese Customs, and the arguments of the latter learned gentleman in reply, the Acting Judge said, I proceed to the decision I have arrived at, and that not without careful consideration and much deliberation.  My decision is this, that in criminal cases dealt with summarily by a Provincial Court in Japan, a special case can be stated on the application of the party charging or prosecuting; in other words, that although there is an express provision in the Order in Council for the stating of a special case by way of appeal by the convicted party, and no mention of other than the convicted party, that the benefit of an Act of Parliament which gives a right of appeal in England to the prosecution may be equally availed of on H.B.M.'s Court for Japan, and in H.B.M.'s Provincial Courts in this country, I cannot bring myself to believe it was the object of the order in Council of 1865 in the Articles and Rules dealing with Criminal procedure to take away from an aggrieved party, other than the convicted, a right that he would appear to have if resident in England, or as Mr. Lowder forcibly puts it, could it possibly have been intended to deprive the Government of Japan of a right which is enjoyed by any prosecutor in England.  Emphatically I think not.

  Mr. Kirkwood's objections take the form of two questions to this Court.  First: Can a Provincial Court, where it has dealt with a criminal charge summarily and dismissed such charge, state a special case by way of appeal on the application of the prosecution. Secondly: If a special case can be stated, is this the proper Court to bring it to.

 To the first question, I reply in the affirmative.  To the second, I say that an appeal by way of special case from other than the convicted parties will lie to this Court, but whether for final adjudication or not I am not at this stage of the proceeding prepared to say. I am constrained to admit that the wording of Article 8, subsection 34, of the China and Japan Order in Council, 1878 - I refer particularly to the closing words - leaves it open to argument whether this Court has a criminal appellate jurisdiction in cases brought to this Court by way of appeal from the Provincial Courts in Japan.

  Mr. Lowder applied that the case be sent back for amendment under 10 and 21 Vict, Chapter 43, Sec. 7.  He applied:-

- That the heading should be amended; for, as it at present stands, it makes it appear as a civil when it is a criminal case.

- That the information be set out, as also the original summons.

- That the whole of the evidence be set out.

- That the whole of the treaty between Japan and Great Britain as well as the Convention of 1866 may also set out.

 After some argument, His Honour ruled that the case should be sent back for amendment and original summons should also be set out.  At the suggestion of Mr. Kirkwood, copy of application to state special case was also ordered to be set out in the Special Case.

  The case was then adjourned sine die.

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