G
COFY.
LO
26
99
Enclosure 2.
Hon. Colonial Secretary,
IREC
C.O.
40121
563
REC 4 NOV 03
I think that the Government may properly
grant the lease asked for by Messrs. Deacon and Hastings in the
10th. and 11th. paragraph of their letter of the 5th. June last.
The New Territory from the date of its
Cession for a term of years has become British Territory for that term (see C.C.D. Hongkong 228 of 10th. October, 1899).
The triangular slip for which Messrs.
Deacon and Hastings now desire a lease formed, it is true, part
of Lantac Marine Lot No. 3 the lease of which was declared by
the Supreme Court, in what is known as "The Shell Case", to have
been ultra vires.
Since the delivery of the Judgment in that .
case however the Legislature of Hongkong has by Ordinance 21 of
1901 expressly empowered the Governor to grant leases of the sea
bed within the territorial waters of the Colony, free and dis-
charged from all rights easements &c.
1 respectfully differ from the Judgment
of the late Chief Justice in the "shell case". I think that the
view taken by the Chief Justice was wrong and that the view
taken by Mr. Justice Smith in his Judgment in which he dissented
from the Judgment delivered by the Chief Justice was the proper
one. As however the Judgment of the Chief Justice is, where the
Judges differ, to be taken as that of the Full Court and as
there was no appeal the only course is to bow to the Judgment.
The lease of Lantac Marine Lot No. 2 should therefore be de-
livered up by the lessees and be cancelled by the Governor.
That having been done the Governor may
then under the powers conferred upon him subsequently to the Judgment of the Full Court by Ordinance 81 of 1901 section 3 to
which
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