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Colonial Cases

In re Kentwell, 1926

[legal practitioners]

In re Kentwell, 1926

Selected, edited and transcribed by Douglas Clark, barrister Hong Kong

 

IN HIS BRITANNIC MAJESTY'S
SUPREME COURT FOR CHINA

AT SHANGHAI

IN THE MATTER OF AN APPLICATION
TO REMOVE MR LAWRENCE KLINDT KENTWELL
FROM THE ROLL OF LEGAL PRACTITIONERS

Before Peter Grain, Assistant Judge

Date:  17 November 1926

Mr. H. Lipson Ward, acting Crown Advocate, attended

Mr. Tycho Wing also was present on behalf of Mr. Kentwell.

Original Report:  North China Herald, 22 November 1926

Judgment:

This is a motion by the Crown Advocate to strike the name of a legal practitioner of this Court off the roll. The proceedings came before me on November 8 in Chambers. The notice of motion was served upon the legal practitioner, who appeared and was represented by Counsel, Mr. Wing, barrister-at-law. All parties were heard and l adjourned the matter for consideration.

By Rule 31 of the Rules of Court for His Majesty's Courts in China, "the Supreme Court may at any time for good cause revoke any grant of an application to practice as a legal practitioner." By Article 165 of Order-in-Council, 1925, the withdrawing or suspending the right to practice is subject to a right of appeal to His Majesty in Council.  I have now considered very carefully all the facts placed before me by the Crown Advocate and Mr. Wing on behalf of the legal practitioner concerned, and have come to the conclusion that it is my duty to give my decision in open Court.

The Ground for Action

The motion before the Court is that the right to practice granted to Lawrence Klindt Kentwell on November 30, 1916, be withdrawn, on the ground of misconduct, and that the roll of legal practitioners of this Court be amended accordingly. The misconduct alleged by the Crown Advocate is that Lawrence Klindt Kentwell falsely registered a Chinese subject, Chow Kwei-ching, as a Spanish subject at the Spanish Consulate in Shanghai. The facts placed before me are as follows:-

A company called "the Shanghai Chinese Coal Produce & Stock Exchange Company" was formed about the middle of the year 1921. This was one among many companies dealing in exchange speculation at that time. A Chinese subject, Chow Kwei-ching, was interested in this company, holding the majority of shares and having advanced money to the extent of $39,900 in connexion with the promotion of the company.  Chow Kwei-ching endeavoured to get this company registered at Peking as a Chinese company but was unable to obtain the registration. Chow Kwei-ching then got into communication with Mr. Kentwell and employed him as his legal adviser.

Spanish Registration

It appears that on November 17, 1921, a company under the name of "Chinese Coal Produce and Stock Exchange Co." was registered at the Spanish Consulate-General as a Spanish Company.  At the same time, Kentwell informed Chow Kwei-ching that it was also necessary that he, Chow Kwei-ching, should be registered as a Spanish subject, and Chow Kwei-ching on November 17, 1921, was registered as a Spanish subject, born in the Philippines.  Chow Kwei-ching states that he took no part in the registration, save giving Mr. Kentwell his photograph and paying to Mr. Kentwell's office the sum of $380, which he was told by one of Mr. Kentwell's staff was the fee payable for the registration.

He further states that he never went to the Spanish Consulate, that he is a Chinese subject, born in China, and has never been to the Philippines, nor ever said he had; that Mr. Kentwell knew he was a  Chinese subject. Mr. Kentwell does not deny that he carried out. the registration, stating, "I effected the registration of Chow Kwei-ching;" "probably attended at the Spanish Consulate to do so."

These facts all transpired in an action which was heard in this Supreme Court in July and August this year, and it is on the facts set forth in the judgment in this case that the Crown Advocate has brought this motion before me to strike Mr. Kentwell's name off the roll of legal practitioners of this Court. There were other facts which came to light in these proceedings, but with those matters I do not propose to deal, as the Crown Advocate has confined himself solely to the charge of false registration.

Grave Impropriety

It is urged on behalf of Mr. Kentwell that this registration was effected for the benefit of his client, Chow wei-ching. It is admitted that Mr. Kentwell did effect the false registration and that it is a case of grave impropriety, but not a sufficient cause for striking the name of a legal practitioner off the Court, but that some term of suspension would meet the case. It is further urged that, at the time of the registration, the particular Consulate gave great facilities for the registration of persons to become its nationals and that Mr. Kentwell availed himself of these facilities for the benefit of his client; that the Spanish Consulate was ready to accept registrations without inquiry, that Chinese subjects are very desirous of obtaining foreign rights and that the Spanish Consulate were probably not deceived and a case in re Stewart (1868) L. R. 2 Privy Council Appeals, p.88, is quoted.

In that case a false recital with regard to the payment of consideration money had been inserted in a deed of conveyance. An order was made by a majority of the High Court of Bengal (consisting of the Chief Justice, Sir Barnes Peacock, and Mr. Justice Phear, Mr. Justice Norman dissenting) to strike off the rolls of the Court the attorney who was responsible for the false recital and had attested the deed.  The case came on appeal before the Privy Council, who reversed the decision of the High Court of Bengal. The Privy Council judgment found that "the reason assigned for the false statement, though unsatisfactory, had any fraud whatever followed upon the transaction, was not inconsistent with the possibility of honest motives" and they found that no fraudulent use was made of the deed, and no person had complained of any injury directly or indirectly caused by it, and that "the irregularity was wholly unconnnected with any intention to defraud and did not therefore justify the penalty inflicted."

The Motive

In the application now before me the judgment on the case in which the false registration occurred has been put in by the Crown Advocate as one of the exhibits to the motion.  

Although the Crown Advocate has stated that he limits himself to the charge of false registration alone and does not propose to rely on the other matters referred to in the judgment, nevertheless, in distinguishing between the case now before me and the case of in re Stewart, which has been cited, it will be necessary to refer to the judgment which is an exhibit to this motion. In the first place I cannot come to the conclusion that the false registration at the Spanish Consulate was "not inconsistent with the possibility of honest motives."  The result of the registration of the company at the Spanish Consulate, of which the false registration of a Chinese subject as a Spanish subject was part of the procedure, was that the Chinese subject was deprived of a large sum of money.

ln the course of the winding-up the company in which the Chinese subject, Chow Kwei-ching, was concerned, sums of $43,518 and Tls.1,330 were received by Mr. Kentwell as liquidator and one Gonzales, an official of the Spanish Consulate, and passed through their hands. It is admitted that Mr. Kentwell received $5,900 as legal adviser to Chow Kwei-ching, according to another document professing to be a liquidator's account. Mr. Kentwell also received $2,750 as "lawyer's claiming fee" and $2,500 as liquidator and Tls. 350 for drawing up bye-laws of the company, of which there is no trace, while Chow Kwei-ching only received $26,000 out of the $46,650 which he had paid out on behalf of the company, and out of the $26,000 has had to pay $5,900 to Mr. Kentwell for lawyer's fees, $854 for newspaper advertisements connected with the company and $380 the registration fee at the Spanish Consulate.

Intent to Defraud

Hence it is clear from the judgment referred to (which has not been appealed against) that injury directly and indirectly has been caused to the Chinese subject, Chow Kwei-ching, concerning which he has never ceased to complain, and I cannot see how it could have been for the benefit of Chow Kwei-ching that he and his company should be registered respectively as Spanish at the Spanish consulate, and be wound up under Spanish Jurisdiction.

I am not prepared to find that what has occurred is unconnected with an intention to defraud. Even if this particular Consulate did at that time give great facilities for the registration of Chinese subjects, there was all the more reason for Mr. Kentwell as a member of the English Bar and a legal practitioner in this Court to do nothing that might in any way directly or indirectly encourage this irregularity.

Foreigners in China by Treaty are in possession of extraterritorial rights and it is most essential at all times, and more especially at the present period, that foreigners should not abuse those rights. It is still more essential that a trained lawyer, a member of the English Bar and a legal practitioner in H. B. M. Supreme Court for China, should do nothing in any way to abuse those Treaty rights which he in the course of his profession does so much to uphold, and administer.

This matter has caused me much anxious thought and the most grave consideration, and I much regret that the present motion has come before myself and not before my brother Judge, for the reason that the facts on which this motion is now made are the facts set forth in a judgment given by myself in an action before me in which the Chinese subject, Chow Kwei-ching, was the plaintiff and Mr. Kentwell the defendant, but unfortunately it was unavoidable owing to the absence of Judge Sir Skinner Turner.

Struck Off

It is undoubtedly a most serious matter to strike off the roll of legal practitioners of this Court a man who is a member of the English Bar and an English University and a legal practitioner in this Court. It must inevitably be the ruin of his professional career in this country in others, but it is the duty of the official presiding over these courts to do all in his power to maintain the high standard of integrity and honesty which has always been held by the Bar of these Courts. And I have come to the conclusion that the only course open to me is to accede to the application of the Crown Advocate and remove the name of Mr. Kentwell from the roll of practitioners of these Courts.

The Order therefore is, that the right to practice in these Courts granted to Lawrence Klindt Kentwell on November 30, 1916, be now withdrawn, on the ground of misconduct, and that the roll of legal practitioners be amended accordingly.

Mr. Kentwell's Reply

Mr. Kentwell: I think I am entitled to ask permission to say a few words. I have felt very much embarrassed ever since the Chinese case came up in July last and this morning I want to impress on your Lordship my conviction of the courage you have in giving this judgment in open Court. The previous hearings were in Chambers, but I think the whole world should know of your decision in this case.
Sir Sidney Barton is well aware of the change of circumstances in this time.

The Judge:  l know nothing of the circumstances of which you speak.

Mr. Kentwell:  You have delivered a judgment to have me struck off the roll of the Bar. It was some time last July or August that the case came up and I feel sorry that the Crown Advocate has based his application on that. It would seem rather peculiar that when your Lordship heard the case last July or August you found that there was false registration in the Spanish case. I don't think it is fair that the same matter should be brought up before you in order to have me put out of commission.

The Judge:  That is a matter you have a right to urge on appeal to the Privy Council.

Mr. Kentwell: An appeal would be futile. I wish to state in open Court that this registration was done six years ago and two years ago my opinion completely changed, that Chinese should not be registered in any consulate.

The Judge:  Your opinions politically have nothing whatever to do with this Court.

Mr. Kentwell:  My attitude has changed with regard to Chinese who seek foreign protection. I feel that it is because of my political views that your Lordship has chosen to put me out of action.

The Judge:  I must stop you there.  I have no knowledge of your political views. I have no knowledge whatsoever in that way. I only know that you addressed a Ratepayers Meeting, which anybody has a right to do. It is purely an abstract question.

Mr. Kentwell still was attempting to argue when the Judge left the Court.

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