Enclosure No. 2 to Governor's Despatch #79 of the 21st September, 1901.
From the Acting Attorney-General to the Colonial Secretary.
Hon. Colonial Secretary,
It seems to me that the Petitioners in this case have adopted a very extraordinary course. If they contend that the decision of our local Courts as to their rights are wrong, they ought to carry up their Appeal to the Privy Council in the ordinary way, and it appears to me that, not having chosen to adopt that course, it is altogether irregular for them to pray His Majesty to refer this matter to the Judicial Committee of the Privy Council when it was open to the Petitioners themselves, by appealing in the proper course, to argue their rights before the Privy Council, and to contend, if they thought fit, that the Judgment of the Hongkong Court was erroneous.
It also seems to me that this claim is in the nature of a claim for damages for a tort, and that, therefore, the remedy by way of Petition of Right is not available to the applicants (see Viscount Canterbury v. The Queen (1842) 1 Ph. 306; Tobin v. The Queen (1863) 16 C.B. (N.S.) 310; 353, 354). Moreover, in the former case, a doubt was expressed in the Judgment as to whether a wrong committed in the time of one Monarch can be made the subject of a petition of right to his successor.
The case of the Attorney General of the Straits Settlements v. Wemyss (1888) 13 App. Cases 192 does not appear to be any authority to the contrary, because, in that case, there was a special local Ordinance in force as to claims for damages or compensation arising in the Colony (see the report at page 197). In this Colony, however, the provision of our local law is entirely different, (see Ordinance 5 of 1901 section 478), and only authorises claims to be brought by way of Petition of Right which are of such a nature as to fall within the Petitions of Right Act 1880.
(Sgd.) S. B. Pollock, Acting Attorney General.
29.9.01.