OUTWARD TELEGRAM
FROM THE SECRETARY OF STATE FOR THE COLONIES
54126/13/50
Cypher O.T.P.
TO HONG KONG (O.A.G.)
Sent 29th June, 1950.
22.45 hrs.
IMMED LATE
No.1046.
Secret.
13
Your telegram No.706.
Financial Settlement.
Opinion of your Legal Advisers referred to in
your paragraph 7 has not yet arrived. On preliminary examination however I see no objection to course of action proposed in your paragraphs 4 and 5.
2. In connection with the action proposed in your paragraph 5 should claimants other than those with clear cut claims press for establishment of tribunals and allege that denial constituted de facto requisition it seeme clear that question of law will turn largely on interpretation of definition of requisition in Regulation 2(1). On this point I am advised that it is a very arguable proposition that "take possession" does not (repeat not) cover cases of denial. In support of this proposition it can be argued that the words "to take possession of property" as used in the definition connote taking of physical possession coupled with the intention of using the property as owner; such an intention is obviously not present in denial which is simply an act of destruction. Denial may be compared with the case of one person setting fire to another persons house; the former person could not be said to be taking possession of the other person's house.
3. The above arguments would be more difficult to use if a case arose where ships had not (repeat not) been formally requisitioned but were nevertheless used before denial; in such a case the proper test would be whether the use was only incidental and temporary whilst the ultimate intention was denial.
40 As regards the assumption in your paragraph that the words "goods or equipment" in my savingram No.83 exclude ships it is in fact the case that these words have not as yet been treated as including ships since no cases have arisen. My intention however in sending you in my savingram No.83 details of the accepted principles on which H.M.G. deals with compensation in respect of requisitioned property was that the same principles might be applied in Hong Kong in connection with the vessels which are the subject of denial claims.
5. The legal aspects of cases where de facto requisition may be alleged will be further examined here on
/receipt