HYNDMAN JONES CJ

These cases are concerned with the same kind of infringement of the law; and as a matter of convenience have been heard together. The cases come before us by way of appeals from the judgment of the learned Judge sitting in Bankruptcy. He made an order by which the appellants in each case were ordered to undergo imprisonment for three months, and against that order they have appealed. We all agree that the report of the Official Assignee which was made to the Judge in the Court below was not prima facie evidence. Bankruptcy Rule 273 does not appear to us to apply at all in this case, and there is no section of the Ordinance - although there are sections which provide for the report of the Official Assignee being accepted as prima facie evidence for certain other purposes - which makes the report of the Official Assignee prima facie evidence with regard to cases under s. 107A; and, s. 107A being a section which interferes with the liberty of the subject, it appears to the Court that it ought to be clearly apparent, in express terms, that the report of the Official Assignee was evidence for the purposes of the section; otherwise we cannot accept it. With regard to the notes of the public examination and the books it was contended that they also were not evidence unless they were expressly put in as such. On the other hand it was said that, being on the file, they were part of the record of the Court, and that the Judge was quite entitled to look at the public examination and the books and to treat them as evidence. With regard to this point I have considerable doubt; but my learned brothers are both of opinion that neither the notes of the public examination nor the books would be evidence unless they were expressly put in as evidence; that being so - although I doubt myself - I have nothing more to say. The result will be that in the opinion of this Court the learned Judge had no material before him on which he might give judgment, and so the orders cannot be supported. The appeals in both cases therefore must be allowed.

There is one thing I wish to say with regard to the case of re Chua Yew Chip Chop Ho Lee, exparte Chop Sun Tye, Bankruptcy 23 of 1901 (Not reported) which I decided seven years ago, and which was referred to by Counsel in this case and by the Judge in the Court below. I am afraid that the way in which that case was dealt with before me, and subsequently in Appeal, may have induced the learned Judge in this case to treat the report of the Official Assignee as evidence and to consider that the notes of the public examination and the books would be necessarily evidence without their being formally put in. I have referred to my notes in that case, and I cannot find that Mr. Allen, who appeared for the bankrupt, took any objection to the reception of the report or to my looking at the notes of the public examination or at the books. In that case however Mr. Allen called upon the bankrupt to give evidence and examined him; and I based my decision on what the bankrupt said, taken in conjunction with the documents alluded to. 'I find that with regard to the meaning and scope of the section (which had then been recently enacted) I am quoted as having said as follows:-

"It is to be observed that the Legislature has been careful not to characterize an infringement of the provisions of the section by the term Offence: the offences against the Ordinance are enumerated in s. 101."

And I went on to say:

"It would seem that it is not strictly necessary, in order to vest in the Judge the power of imposing on the bankrupt the appropriate punishment, that there should be even an application on the part of the Official Assignee or of the petitioning or other creditor; but that the Judge may ex proprio motu order a bankrupt to be imprisoned, on its appearing from the public examination or otherwise that he has so acted as to bring himself within the section. I do not wish it to be taken that in my opi