Midland Investment Company v Bank of Communications
| Date | 11 April 1956 |
| Court | Supreme Court (Hong Kong) |
(Gregg J.)
Recognition of Acts of Foreign States — Acquisition of Share Certificates — Evidence of de facto Possession — Whether Sufficient to Establish Claim to Immunity — Necessity for Dedication to Public Use — The Law of Hong Kong.
Jurisdiction — Territorial — Exemptions from — Property of Foreign States — Proceedings to Recover Share Certificates — Conditions of Immunity — De facto Possession — Whether Sufficient to Establish Claim to Immunity — Necessity for Proof of Dedication to Public Use — The Law of Hong Kong.
The Facts.—The plaintiff Company had acquired 1,643 shares in the Union Insurance Society of Canton Ltd., and the certificates relating to these shares were the subject matter of the action. The certificates were at the time of the proceedings held in the custody of the court.
The plaintiff Company had always been the registered owner of the shares; it had not in any way dealt with them, and had always received the dividends in respect of them. The share certificates had been in the safe custody of a shareholder of the plaintiff Company in Shanghai but he had no authority to dispose of them. They had nevertheless come into the hands of the defendants, and the plaintiff Company had commenced an action for their return or for damages in lieu.
The defendants contended that the certificates were received by them from the Bank of China, Shanghai, on behalf of the People's Government of the Republic of China, and that the certificates had lawfully come into the possession and control of the Ministry of Light Industries of the People's Republic of China. It was admitted that the defendants did not represent the People's Government of the Republic of China in the sense of being accredited representatives of that Government. The defendants now sought an order that the writ and all subsequent proceedings be set aside on the ground that the court had no jurisdiction to entertain the action as it impleaded the sovereign State of China.
The plaintiff Company alleged that the share certificates had been seized in Shanghai without justification and without their authority or consent. It was denied that the certificates had been lawfully in the possession of any department or representative of the People's Government of the Republic of China.
Held: that the application to have the writ and all subsequent proceedings set aside must fail. To establish a claim to sovereign immunity, evidence of de facto possession is not in itself sufficient: there must, if the claim is to succeed, be satisfactory evidence that the property is dedicated to a public use.
Gregg J., after stating the facts, continued: “On the facts and on the authorities cited by him—notably the cases of the Porto Alexandre[1] and C.A.T. Inc. vs....
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