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could enforce; but I do not appreciate the deliberate setting aside of such a fundamental rule by the Government for its own purposes. But attempts had been made in the case before me to introduce other opinions given by Mr. Leach, against my wish, having regard to the rule of the service. The attempt was first made-Mr. Leach being Jead-to prove them by producing the whole jacket of official papers, produced by the officer who was acting Assistant Colonial Secretary when the file was sent down to the Crown Solicitor's Office: from which It was proposed to read the then Governor's minute as well as Mr. Shepherd's minute. With what object? As I have already said, to prove the Governor's intention when he entered into the agreement. Such documents are not evidence, and it they were, the intention of the Governor is irrelevant in law and I disallowed the evidence. Yet another attempt was made to get in these documents. It was asserted by the Counsel for the Crown that he proposed to impugn Mr. Shepherd's evidence, and to show that he had other minutes of Mr. Leach on which he should have acted. The method proposed was to produce a register of documents kept by Mr. Shepherd as Land Officer, in which copies were made of minutes referring to the office as they passed through the office. These copies are really officially certified copies, and, one irregularity leading to another, I admitted a copy of Mr. Leach's second opinion, although no evidence as to handwriting or signature of the original had been nor could be given; with, however, the reservation that it was only to be used for the purpose of impugning Mr. Shepherd's evidence, and not in opposition to my previous ruling. I think that a great deal more time than was necessary was devoted to this part of the case, because Mr. Leach's former opinion being already in, and being what it was, what the Counsel for the Government wanted to do with the other opinion, could just as well be done with this one. The main point insisted on was that the Government never kept or intended to keep Yiu Chow at arm's length, and always endeavoured to preserve what it conceived to be his rights. But the impugning of Mr Shepherd's evidence is a more serious matter than at first sight appears. I shall refer to the matter presently.
One other sentence in Mr. Shepherd's evidence must be noted. 1 said we treat the person executing the agreement as Lustee luz the true owner." Apparently it did not much matter to the Govern mens whether Chu Chuen or Yiu Chow signed the agreement, so long as some agreement was signed, leaving the parties to settle their own differences as to the share each was to obtain of the reclamation.
It is now material to enquire what position the Government really ought to have assumed. I put on one side the general fact that every step was taken contrary to the Ordinance, and was therefore illegal; and come to the special illegality committed in respect of this agreement. It is capable of being stated quite simply and concisely. By their own plan and on their own scheme sanctioned by the Council, Yiu Chow was the lessee entitled to the whole reclamation in front of sections B and D: Chu Chuen was not. The Government contention then seems to have been the same as it is now (though even this is not clear in view of the Colonial Secretary's letter of 6th December); that only frontagers were to share in the reclaimed land, and that back section holders would not be recognised. This, I repeat, was approved by the Legislature and the basis of the Ordinance rever having been challeng frontagers alone had rights under it, back section holders had none. Yet, the Governor deliberately gives the possession of the whole reclamation to Chu Chuen, and so violated subs. 6 of s. 8. That piece of the re- clamation belonged to the Government, and the Governor had no power to dispose of Crown properly in such a way, If Yiu Chow had any right at all, it was under subs. 6, to petition for compensation for damage to his property by loss of access to the shore, which the Governor mught give him if he chose, either in the form of a sum of money, or of a Crown lease of new land: I take this to mean of land somewhere else, and not new laod as meaning "newly made or reclaimed land. I do not think that this agreement with Chu Chuon can be said to fall within this subsection. However, let us see what they did in fact. Let Chu Chuen make an agreement for the whole of the Reclamation in front of the whole lot: subject to a supplementary agreement" either to assign an equitable proportion of the said reclamation or to pay an equivalent in money to the owners of sections B. C. D." The use of words "equitable pro- portion," for reasons which I have already given, was peculiarly unfor- tunate. It certainly was the more unfortunate owing to the divergence between Mr. Shepherd's views as to the rights of back section holders, and those held, if they were held, by the Government. Mr. Shepherd says he took the term from the Ordinance; but a Land Officer must not act in so important a matter without the advice of the Attorney General and the sanction of the Governor.
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I suggested during the re argument on this point that perhaps what Mr. Shepherd meant was that he took it by analogy from the Ordinance: but there is an ambiguity in it which the Government ought never to have sanctioned. They knew as well as we do now what Chu Chuen was claiming rights as a back section holder. The Government's policy ap proved by the Council was that back section holders had no rights. Their plain duty was to put into plain language what they meant.. Yet they arranged that Chu Chuen was to assign to Yiu Chow what the Ordinance had already declared that Yiu Chow ought to get only if he had assented to
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