Yuk Kee Firm v Ling and Boyer
| Jurisdiction | Hong Kong |
| Docket Number | Case No. 29 |
| Court | Supreme Court (Hong Kong) |
| Date | 23 August 1947 |
(Williams, J.)
Jurisdiction — Immunity from — Department of Foreign State — Waiver of Immunity — Submission to Jurisdiction — Nature of — Magistrates Ordinance, 1932, Section 43, Hong Kong.
The Facts.—After a prosecution at the Kowloon Magistracy for theft of rice which resulted in the conviction of three persons the China National Relief and Rehabilitation Administration (hereinafter referred to as “C.N.R.R.A.”) through its legal advisers applied to the Court for an order for delivery to it of the rice concerned. The Magistrate made the order sought by virtue of s. 43 of the Magistrates Ordinance, 1932, which reads:
“(1) … a Magistrate may … make an Order for the delivery of the property to the person appearing to the Magistrate to be the owner thereof. …
“(2) An Order under this Section shall not affect the right of any person to take within six months from the date of the Order legal proceedings against any person in possession of property delivered to him by virtue of such Order.”
A subsequent application was made by other claimants but the Magistrate refused to vary the order. An action was instituted by the plaintiffs under s. 43 (2) above set out. These interlocutory proceedings were now brought by the defendants for an order setting aside the writ of summons issued by the plaintiffs on the ground that, C.N.R.R.A. being a Department of the Government of the Republic of China, the Court had no jurisdiction to entertain the action. The plaintiffs opposed the making of this order on the ground that the C.N.R.R.A. had submitted to the jurisdiction of the Court in applying for an order under s. 43 (1) of the Magistrates Ordinance, 1932. The defendants, however, contended that at the time this last-mentioned application was made, the legal advisers to C.N.R.R.A. were not aware of the relationship between C.N.R.R.A. and the Government of China and therefore C.N.R.R.A. was not bound by their Acts. It was further submitted that once the rice had passed into the possession of C.N.R.R.A. there was no jurisdiction in the Court to compel C.N.R.R.A. to come to the Court and defend its title. The other arguments addressed to the Court by both sides appear in the judgment.
Held: that C.N.R.R.A. had submitted to the jurisdiction of the Court under s. 43 (1); that as proceedings under s. 43 (2) were merely a continuation of proceedings under s. 43 (1) the submission of C.N.R.R.A. to the...
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