Thursday, December 15, 2011


An interesting case came before the Full Court, at Wellington recently -concerning the admission of Chinese to the Dominion. It was a motion for a declaratory judgment respecting the admission of Chinese children born in New Zealand after being sent to China for education.

The plaintiff in the case was Joe Lum, storekeeper, of Wellington, and the defendant the Attorney-General.The plaintiff was represented by Sir John Findlay, with him Snr A. de B Brandon, and Sir John Salmorid, X.C, appeared on behalf of the Attorney-General. The bench was occupied by the Chief Justice (Sir Robert Stout), Justices Cooper, Sim, and Herdman. "The facts agreed to by the parties were that Joe Lum, a Chinese resident in New Zealand, but not naturalised, was married to a Chinese woman in the Dominion on November 28th, 1905. As issue of the marriage there were six children, all born in Wellington. The plaintiff is about to visit China and take with him his children, the eldest of whom is about 12 years, to be educated in their native tongue. On an application to the Department of Customs, the plaintiff was informed that unless the children returned to New Zealand within four years they would not be allowed to land without the payment of the poll-tax of 1000 and passing the tests required by sections 31, and 42 of the Immigration Restriction Act. It is not improbable that circumstances will keep the children in China for a longer, period than four years. The court was asked for an order interpreting the enactments, concerning the facts disclosed, the principal question involved being whether the poll-tax would be payable for the children even if they returned after four years. In arguing the case, Sir John Findlav contended mainly that the children piiist be regarded as natural-born British subjects. It was absurd, he said that children born in this country who happened to go to China for education should on return be regarded as Chinese immigrants subject to poll-tax. A literal interpretation of the enactments affecting the case would mean a gross hardship. . Sir John Salmond, replying, said there was no hardship possible. The Immigration Restriction Act provided for full discretionary power for exemption in proper cases. These children might, be away for twenty years, educated in the Chinese tongue, thoughts, and habits, and for all practical purposes they would be Chinese. Sir John Findlay: We will have to rely on the generosity of the Solicitor-General, I suppose. Sir John Salmond replied that the matter of discretion would rest with the Minister and the Customs Department. It might be argued that the word "naturalised" in the, enactment had a special legal meaning. It meant the transformation, of an alien into a British subject. The Chief Justice: A natural-born subject should surely have more rights than a naturalised subject? Sir John Salmond observed that there was an express exemption of a naturalised subject, and his contention was that it did not include the natural born. The court reserved judgment in the case. Marlborough Express, Volume LIII, Issue 187, 4 July 1919, Page 7



The Court of Appeal to-day delivered judgment in the case of Joe Lum v. the Attorney-General. This was an originating summons ito determine the meaning or the d>efinition of "Chinese" im the Immigration Restrictions Act. The facts were that a Chinaman, married here, wished to send his children, all born in New Zealand, to China to be educated, and the question was whether, if they did not return to New Zealand in four years, they came under the definition and would be subject to the restrictions of the Adt.

The Court held that the children in such case would not come under the restrictions of the Act.

Hawera & Normanby Star, Volume LXXVIII, 9 July 1919, Page 5




Various judgments were delivered by the Court of Appeal yesterday afternoon. On the Bench were the Chief Justice (Sir Robert Stout), Mr. Justice Cooper, Mr. Justice Sim, and Mr. Justice Herdman. The case of Joe Lum, Chinese storekeeper, of Wellington, against the Attorney-General, involving the question as to whether children born of Chinese parents in New Zealand and visiting China for the purpose of completing theit education would be subject, on their return after an absence of more than four years, to the poll tax of £100, a,-I to undergo the educational test, was elided. The Chief Justice said the chile en were natural-born New Zealand1 s bjeets, and were therefore not subject ir> the Immigration Restriction Act. 'H Justice Cooper had no doubt that the plaintiff's children, although Chinese by blood, were natives of New Zealand and not of China, and were therefore British subjects. Mr. Justice Sim and Mr. Justice_ Herdman also found in favour of plaintiff. Sir John Findlay, K.C., with him Mr. Brandon, appeared for Lum, and Sir John Salmond, K.C., for the Attorney-General. Evening Post, Volume XCVIII, Issue 8, 9 July 1919, Page 4

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