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Colonial Cases

Wong Vok-Tai v. Artindale, 1883

Wong Vok-Tai v. Artindale

Civil Summary Court, Shanghai

Mowat AJ, 10 May 1883

Source: North China Herald, 11 May 1883

LAW REPORTS.

CIVIL SUMMARY COURT.

Shanghai, 10th May

Before R. A. MOWAT, Esq., Assistant Judge.

WONG VOK-TAI v. R. H. ARTINDALE.

  His Worship Chen, Magistrate of the Mixed Court, occupied a seat on the bench and watched the case on behalf of the Chinese.  Mr. Edward Robinson appeared for the plaintiff, and Mr. R. E. Wainewright for the defendant.

  The plaintiff claimed $2 for having, on or about the month of November, 1882, been wrongfully compelled by the defendant to quit a house and shop which the plaintiff rented from one Chung Ak-kwai; and he further claimed $60 damages for having been deprived by the defendant of his household goods and stock-in-trade in the said house and shop, which goods and stock-in-trade have never been restored to the plaintiff.

  His Worship Chen made a statement which was translated by the Land Office Interpreter to the effect that his Worship knew Chung Ak-kwai, as the plaintiff in the proceedings relative to the houses in questions, but he knew nothing of Wong Vok-tai.

  Mr. Robinson explained that Wong Vok-tai was a sub-tenant of Chung Ah-kwai.

  Mr. Wainewright said Chung Ah-kwai was the man behind all this.  His clients were threatened with fifteen more of these cases.

  M r. Robinson then opened the case for the plaintiff.  He said: There are two distinct grounds of action alleged in this case.  In the first place, there is a claim for damages for trespass to the dwelling house by demolition, and then there is a claim for damages for loss and deprivation of the use of furniture and stock-in-trade in that dwelling-house.  Although there are distinct grounds of action in the case, and ti would be convenient in argument to keep them distinct, yet in opening the case, it will be advisable that I should state the occurrences which gave rise to this action as -what in fact they were - incidents in the same action.

  His Honour - I suppose the defendant does not admit his liability.

  Mr. Wainewright said the defendant denied all liability.

  Mr. Robinson (continuing) - Mr. Artindale instructed a party of people, among whom, I understand, were a gentleman in his office named Mr. Ambrose, the compradore, and a party of coolies,  to go to Sinza and demolish some thirty or forty houses, including this one, and to turnout the tenants.  Those instructions were carried out. The men went there at about seven or eight in the morning, built a bamboo fence round the houses, and ordered the tenants to turn out.  The man who acted as interpreter on that occasion seems to have been a detective in the Municipal Police Force.  He and a black watchman went into the different houses and ordered the tenants to turn out.  There was I believe, no resistance except in the case of one woman, who made a very energetic resistance indeed.

  His Honour - Was that the plaintiff?

  Mr. Robinson -No.

  His Honour - Not one of his family?

  Mr. Robinson - No. The plaintiff went out with his family, consisting of his wife and five children, took them to a friend's house and left them there while he went in search of another lodging.  They took with them only such small articles as they could carry with them in the hurry of the moment.  The plaintiff went back to his house and found that a bamboo fence had been erected in front of it, and the watch forbade the people going in.  He was unable to gain access to his house, and his stock-in-trade and chattels that were in it, he never recovered.  I shall call the plaintiff his two assistants and one or two of the neighbours to  prove the fact of eviction and the fact of the inability of the plaintiff to re-enter the premises and the fact of his not talking away the major part of his goods, and the plaintiff will prove the loss of the goods.  I shall also call the tipao of the district to prove that the goods were never given over to him. That is, perhaps, a little superfluous on my part, but he is here and I shall call him. I think your Honour will see that there is here a clear claim for damages, apart from any right which Mr. Artindale may have possessed to enter the house and demolish it.  The claim of two dollars is nominal damages for being turned out of the premises.  We do not admit the right of Mr. Artindale to take the steps he did in demolishing the houses.  In England, a deliberate trespass of this kind, unless justified, would entail very substantial damages.  In this case, I only ask for nominal damages, the object being - though this is not a test case - formally to try the right of fourteen or fifteen persons who were turned out, and to test the right and title of the landlord of these tenants to remain in possession of this property.   Our argument is that Chung was a yearly tenant of Mr. Artindale, and his tenancy had not expired when his tenant was turned out.

  His Honour - His sub-tenants, you mean?

  Mr. Robinson - When he himself was turned out.  He lived in one of the houses himself, and was turned out.  These arguments I think suffice to show the nature of the claim, and although the demand of two dollars is nominal in itself, the matter involved is not a trivial one.  My clients being poor people, I decided that this was the most inexpensive way of determining what further steps should be taken.

  The Plaintiff was then examined by Mr. Robinson through the Land Office Interpreter.  He said - My name is Wong Vok-tai, and I used to carry on business at Sinza in premises let to me by Chung Ah-kwai.  It was a firewood hong.

  Who lived in the house? - Nine persons: myself, my wife, five children one coolie and my brother-in-law.

  Does he remember leaving his home on or about the 13th day of the 10th moon?   

  Mr. Wainewright suggested an alteration from the leading form of the question.

  His Honour - Up to what date did he stay in the house? - They pulled down the house on the 11th to the 13th days of the tenth moon.

  His Honour - I never ask him anything about pulling down the house. When did he leave? - On the 11th day of the 10th moon (21st Nov.)

  Why did he leave? - He says he does not know why they turned him out.

  His Honour - He has not said that any one turned him out.  How did he come to leave? - A foreigner asked him to go out, and then put a bamboo fence all round the house.

  Mr. Robinson - Who turned him out? -Two black men, two constables and a foreigner.

  His Honour - Five altogether? - Yes.

  Mr. Robinson - What did they do? - They told him to turn out.

  Mr. Robinson remarked that the witness's evidence was only an approximation of what occurred.

  Mr. Wainewright pointed out the man was Mr. Robinson's own witness.

  Mr. Robinson - A man went to the door and asked him to turn out?'   Mr. Wainewright - He did not say that any man went to the door.

  Mr. Robinson - He said they told him to turn out.

  Mr. Wainewright - But he said nothing about a door.

  Mr. Robinson (continuing the examination) - Who told him to turn out? - a Chinaman.

  His Honour - But he said there were only five persons - two black men, two constables and a foreigner.

  The interpreter repeated the question, and the plaintiff again said it was a Chinaman.

  Mr. Wainewright - He is a Chinese detective your Honour, named Fong Se-wai.

 Mr. Robinson here asked that the witnesses on both sides, with the exception of Mr. Ambrose, might be ordered to leave the Court. This was done.

  His Honour remarked that at the present rate of progress this would be a very long case.

  Mr. Wainewright - very long indeed, your Honour.

  In answer to Mr. Robinson, Mr. Wainewright said he could make no admission.  So far as he could see, the evidence of this witness would be more favourable to his (Mr. Wainewright's) case than to that of his friend.

  Mr. Robinson - Was there any other man with the detective, Fong Se-wai, when he went round? - Yes, there were twenty or thirty coolies.  The first man was Fong Se-wai, and there were two black men behind him.

  He says there was one foreign man.  Would he recognise the man if he saw him again? No, he could not recognise him exactly.

  Is he in Court now?

  The Plaintiff looked round the Court and pointed to Mr. Ambrose as the foreigner in question.

  Mr. Robinson - At what time did he come? About 7 o'clock in the morning.

  Did he see the foreign constable at 7 o'clock? - No, not then.  He saw him later.

  When he went out, whom did he take with him, and where did he go? - He took his wife and family, and went to a shop opposite.

  Was it a pork and provision shop?

  His Honour - What can that matter?

  Mr. Robinson - Only to identify it your Honour.  My friend will admit nothing. (Continuing examination.) What did he do afterwards? He went to find another house.

  When he went back what did he do? He took his wife and family away.]   Mr. Robinson - What I want to ask is whether he went back to his own house. May I put it that way?

  M r. Wainewright objected.

  Mr. Robinson - What property did he take away with him when he went out? - Nothing except one basket.

  Why did he not take more? - Because he could not.

  Why? - Because there was a fence put all round.

  He was able to get out himself.  Why did he not take his property with him? - He could not take his property because he took his family and himself.

  Did he go back to look for his property? - No; there was a fence all round and he could not get in.

  His Honour - You need not press this point.

  Mr. Robinson - We have to prove a legal question as well as one of fact, your Honour. (To interpreter) Was there a door in the fence? - No, there was no door in the fence.

  Mr. Robinson - Does he know how the coolies came in and out? - He did not see them go in and out.  He saw them pulling down the house.

  Was there no way for them to come out if they wanted some chow chow? - Yes, there was a doorway.

  His Honour - How far are we advancing by this? First he says there was no door, and now he says there was a door.

  Mr. Robinson - Did he try to get his property out by this door? - No; he was not allowed to go in.

  What men were there who would not allow him to go in? - A black man and two foreign constables.   What time was that? - In the morning about eight or nine o'clock.

 Were there any native constables there? - Yes, two.

  Were they interfering with the tenants or not?

  His Honour - With the plaintiff I suppose you mean?

  Mr. Robinson - Well, I do not press the question, there is nothing in it.

  His Honour - No.

  Mr. Robinson - They did not interfere. - Were the black men walking up and down before the foreign constables came? - Did he notice anything about them? - Fong Se-wai came first and the black man afterwards.

  Did he see the detective go to any other houses? - Yes, he saw them both go to Chung Ah-kwai's.

Mr. Robinson said he hoped to prove that the black man was in the service of Mr. Artindale. (Addressing the interpreter) What did they do there? - They drove Chung Ah-kwai's mother out.

His Honour did not see what this had to do with the case.

Mr. Wainewright hoped his Honour would take that down, it would serve [to] show the veracity of the witness.  He would prove who it was that put Chung's mother out.

  His Honour pointed out to Mr. Robinson that he had not got it in evidence that the house was ever pulled down.

  Mr. Robinson - Next day did he come back to look at what was going on? - Yes; there was no house there then.

I want the witness to tell the Court what property he left behind in his ship. - What did he leave? - 12 piculs of firewood (dried bean and cotton stalks).  It was worth 350 cash per picul. 750 catties of grass.

  Mr. Wainewright suggested that the witness meant reeds.

  Mr. Robinson thought he meant straw.

  Further examined, the witness said the grass cost 2,800 cash per picul.  There were about 25 piculs of straw at 320 cash per picul, and 18 piculs if reeds at 350 cash per picul.  There was also the household furniture.

How much was that worth? - About $60.

Does that include the stock-in-trade or not? - Yes.

 His Honour - What is the furniture worth? We know what the other is worth.

  Witness said it was worth about 20,000 cash.

  His Honour - Do you wish to have the particulars, Mr. Wainewright?

  Mr. Wainewright - Well, I should like to have the principal particulars.

  His Honour - What were the large articles? - There was a table, $2; a cash box, about $2; iron kettles, and cooking articles, about $2, and six stools, 25 cents each.

  Mr. Robinson - How many rooms had he? - Two.

  How much rent did he pay? - $3 at first, and afterwards $3.50 per month, and $10 in advance.

  His Honour - At the time he was turned out, how much did he pay? - $3.50 per month.

  Mr. Wainewright - And $10 premium!

  The Plaintiff was then cross-examined.

  Mr. Wainewright - Was his a corner house? -=-No, it was in the middle.

  What road did it face? - It was on the Sinza Road, facing South.

 He says it had two rooms. Does he mean two rooms besides the shop or two with the shop? - He counts one room for the shop and another for living. The living room was behind the shop.

  How wide was the shop - what frontage had it? - The plaintiff marked off a distance of about ten feet on the wall of the Court to show the distance.

  How far back did it go? - It was as deep as it was wide.

  Was all this straw and hay and firewood that he mentions in the shop? - Yes.

  Was there any bed or any bedstead in the room behind? - Yes.

  How many? - One.

  Did all the nine people sleep on the one bed? - The children slept on the couch, and some on the ground, on straw.

  How much was the bed worth? - $1.50.

  What day was it that he and his family left the house? - The 11th day of the 10th moon.

  Did he write down the date? How does he know? - He says he is a business man and he has it written down in a book; he keeps a book.

  How long before he left the house had that bamboo fence been put up? - About an hour after he left the house.

  When he left the house there was no fence; he could walk clear into the street? - There was a fence round, and he got out and found a door on the west side.

  How long before he left the house had people begun to put that fence up? - At seven o'clock in the morning.

Seven o'clock on the same day? - Yes.

  After he had left the house and taken his family to the shop across the road and bought chow chow what did he do? - Did he stop and see what was going on? - No, he did not get time.

  What did he do? - He went away on business.

  Where did he sleep that night? - He got another house and slept there.

  How far off was that? - About a li.

  When did he first see that the old house had been pulled down?  On the same day; the 11th of the 10th moon.

  Was he ever told before that, that he was to leave his house? - No; no man ever told him so before.

Then all these people - the detective and the two black men and the foreign constables and the Chinese constables - all came to him that day and told him to leave? - Yes.

Ask him to look at that and see whether he can read it. (Mr. Wainewright here handed to the interpreter a paper with Chinese characters on it; the interpreter showed it to the plaintiff, who began to read it aloud.)

Mr. Wainewright -Before he left his house had he seen any notice like that? - No; he had not seen it.

Mr. Wainewright - If he is a tenant, we shall prove that it was put up on his house. (Continuing cross-examination.) Did he see it so far back as four months ago? Did he see such a paper put on his house or any of the houses? - No, he did not.

Has he ever seen a paper like that before? - No, never.

Did he have any conversation with Chung Ah-kwai or any of his neighbours before the 11th day of the 10th moon about their being threatened to be turned out of their houses? - No; he had heard nothing about it from anybody.

Does he know the Kung-bing compradore? - No.

  Was he ever told by anyone twelve months before that he would have to leave the house? - No.

How long had he lived in the house? - Sixteen years.

Messrs. Iveson and Co.'s compradore, a shroff, a black watchman and a Chinese detective were called in and asked, in each case, whether they recognise the plaintiff. The shroff recognised him, but the others did not.

  The remainder of the evidence given at this sitting will appear in our next issue.

 

North China Herald, 8 June 1883

LAW REPORTS.

CIVIL SUMMARY COURT.

Shanghai, 5th June 1883

Before R. A. Mowat, Esq., Assistant Judge.

WONG VOK-TAI v. R. H. ARTINDALE.

  Mr. Edward Robinson appeared for the plaintiff and Mr. R. E. Wainewright for the defendant.

 The plaintiff claimed $2 for having, on or about the month of November, 1882, been wrongfully compelled by the defendant to quit a house and shop which the plaintiff rented from one Chung Ah-kwai; and he further claimed $60 damages for having been deprived by the defendant of his household goods and stock-in-trade in the said house and shop, which goods and stock-in-trade have never been restored to the plaintiff.

  The hearing of this case was re-opened shortly after 10 o'clock.

.  .  .  

  Mr. Robinson then replied for the plaintiff. After explaining the causes which had led to the delay in bringing the action, he proceeded to review the evidence, contending that there were no grounds for charging the defendant's [plaintiff's?] witnesses with having concocted a story.

 His Honour, interrupting, said - This is so purely a question of fact that I may tell you at once that I believe the defendant's witnesses.  I have heard all the evidence, and I have re-read it all this morning.  I must decide in my own mind which is the true story, and I think it just as well to tell you now that I believe the defendant's witnesses. As Mr. Wainewright has said, there have been independent witnesses called by him, who could have no possible reason for speaking untruths - His Honour then proceeded to read extracts from the evidence of the police.

  After further argument as to the credibility of the witnesses, Mr. Robinson proceeded to argue that no authority to pull down the houses had been given by the Mixed Court.

His Honour said authority to pull down the houses was given by the sanctioning of the issue of the notice which was submitted to the Court.  The thing was concluded at the time when the matter was brought into the Mixed Court and the tenants were told that they would have two months longer in which they must go. No rent had been paid by Chung Ah-kwai since the beginning of the 8th year; the tenants were all asked to pay three months in advance, and notice was given them at the same time that the land would probably be required.  The other tenants paid; Chung Ah-kwai said he had paid in advance, but that His Honour did not believe.  The matter was brought into the Mixed Court in July, and it was decided that the tenants should have two months longer.  At the end of that time they were bound to go.  That was His Honour's view of the matter.  The difficulties had arisen from the fact that when the notice expired the defendants did not at once insist upon their removal.

  Mr. Robinson proceeded to argue that the evidence showed that Chung Ah-kwai was a yearly tenant, and that consequently the defendant was not justified in pulling down the houses after a few months' notice.  If this had been in England, he was convinced that a jury would decide that this was a yearly tenancy.

  His Honour said that did not apply at all. Chinese law was the question.

  Mr. Robinson submitted that in the absence of any evidence to the contrary, and in the absence of a judgment in the Mixed Court, British law applied.  He proceeded to explain his views of the application of British law to the case.

  His Honour said this had no bearing on the case.  A reference to the Wu-shi-shan case would show that in a question of this kind the law of the soil was the law which applied.

  Mr. Robinson proceeded to explain and cite cases in illustration of British law on the subject and was several times stopped by his Honour.

  His Honour said that Mr. Robinson was entitled to have the case re-heard if he wished, and it was far better that he should take that course than that he should continue an argument which His Honour had decided had no bearing on the case.

 Mr. Robinson, after further reviewing the evidence of the case, said he was very much obliged to his Honour for the trouble which he had taken in making enquiries as to the decision in the Mixed Court, but he submitted that His Honour's action had deprived him (Mr. Robinson) of the power of cross-examining the person through whom His Honour made those private enquiries.

 His Honour - Would you like me to call Mr. Scott?

  Mr. Robinson - No.

  His Honour - Well, you must either do that or do nothing more about being deprived of the power of cross-examining him.  I shall ask him to attend, and then you can cross-examine him.  Do you wish that?

 Mr. Robinson - I submit that I ought not to be asked that, because I might then be admitting evidence which my friend has not called, and which is hostile to me.  It is not for me to prove the fact; the burden of proof is on the defendant.  I cannot give evidence, but I have learned the facts from the same source as Mr. Scott, and I submit that the evidence is entirely against there having been a decision.

  After further arguments from Mr. Robinson.

 His Honour said - I have indicated already, during the course of your observations, my view of the facts and the law which us applicable, and I think it quite unnecessary to say anything more now but to enter judgment for the defendants.

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