15
Sir Maurice Gwyer agreed that the
matter was urgent. As to the action which
should be taken, we were both of the opinion
that, as an application for leave to appeal to
the Privy Council would involve an appeal in a
criminal matter against an acquittal, such
application, after so long a delay, would be
refused. Moreover, service on the respondents
would, in all probability, be impossible.
We further considered that H.M.G. could not be
asked, even in a matter of such importance, to
pass special legislation to negative a legal
doctrine propounded by the Court of Hong Kong.
In view of all the circumstances, we came to the
conclusion that the only action which could be
taken was an attempt at a special reference to
the Judicial Committee of the Privy Council,
under section 4 of 3 and 4 William IV, Chapter
41. The application for this special reference
would require careful wording, which Sir Maurice
Gwyer considered should put the matter in a
general way and not as an appeal from an inconvenient
decision on a particular point of law.
Before making the application for a
reference, the opinion of the Law Officers would
have to be taken, and it was decided that Sir Maurice
Gwyer should put up the case, which would then
be discussed with the Legal Adviser of the Colonial
After agreement on its terms, it should
Office.
go forward as a joint opinion of the Legal Advisers
of the two Departments.
Before sailing, Mr.Bushe informed me
that he considered the Court in Hong Kong was wrong
in law, on the ground, I gathered, that the facts
on which the accused were charged amounted to
piracy