He also wrote that it is needless to say that the Government had no desire to accord other than the fullest justice in respect of private rights.
Mr. C. A. Cripps, K.C., has written that the Award being under the Ordinance the Governor is bound to decide upon proper and legal grounds and not in an arbitrary manner.
Justice Fielding Clarke stated that it was within the competency of the Hongkong Legislature to modify, alter, and even destroy existing rights; although of course the greatest care should be exercised that no injury be inflicted without adequate compensation.
Chief Justice Sir John Carrington endorsed this, and added that although the legal right is taken away it cannot but be a point of honour with the Governor to pay full regard to the moral right.
Attorney General Goodman stated before the Full Court, on the 30th March, 1898, that the Government had not said that it would not fairly and rightly assess the damage even if only morally bound, and he recognised the loss of intermediate rents as a proper subject of claim for compensation.
The present Chief Justice of Hongkong, Sir F. T. Piggott, who sat as Judicial Assessor on the recent Enquiry stated that in his opinion the case falls within the principle given in Cripps on Compensation (4th Ed.) p. 128 and the owner is entitled to compensation for depreciation; and as to loss of rents, he states that if silting occurred this is a proper subject for compensation and may be awarded under the Ordinance.
8. Governor Sir Matthew Nathan held the Enquiry, and the proceedings thereunder with the Award are printed in pamphlet form, which no doubt is in possession of the Colonial Office.
From these it will be seen that the Governor took the land alone as distinct from the land with the buildings thereon, as the only subject for Compensation, when he ought to have known that the land without the buildings had little, if any, earning power, and that from this earning power alone the true value of the property could be found.
He also took the values of the land as a Marine Lot at $3 per foot, and as an Inland Lot at $2 per foot, at one and the same time in the year 1898, when rents had decreased to $8,845 from $15,406 in 1895.
He allowed nothing for the difference in value between the cost of the buildings, $36,000, and the enhanced value of $50,000 as given by the Experts for the Crown.
And he disallowed claim for the loss of intermediate rents, which the Judicial Assessor has stated was a proper subject for Compensation, and could be awarded under the Ordinance.
He made an Award of $35,729 from conjecture only, without a single fact in support and against all the facts in evidence.
Whereas our claim is $197,142, based upon net rentals of $15,406 in 1895 before rents began to decrease, capitalized at 16 years' purchase for a Crown Lease of 999 years, with 10% added, giving $284,000 as the value of the Property in 1895, as stated and affirmed under Statutory Declaration by Messrs. Leigh and Orange, Architects and Surveyors; less $110,000 the sale value of the Property, as an Inland Lot in 1899, when rents had decreased to $4,308 for 283 days to the 10th October in that year, when the Property was sold; leaving a difference in value of $172,000 which with $25,142 for loss of intermediate rents, make a total loss of $197,142.
9. Such a difference in our claim of $197,142 based upon facts, and the Award of $35,729 arrived at from conjecture only, will show conclusively that a grievous injustice has been done to us, and yet, Mr. Secretary Lyttelton states that Governor Nathan's decision must be final, notwithstanding that the terms of reference required that the amount of compensation should be justly arrived at.
Against this decision I have appealed to the new Secretary of State for the Colonies, the Earl of Elgin, who, it is stated sees no reason for departing from the decision of his predecessor.
10. This injustice could not have been done but for the passing of an Ordinance containing a clause which could not have found a place in an Act of Parliament, empowering the Governor to take away the rights of a Crown Lessee without paying adequate compensation, or even any compensation at all, if he in his absolute discretion thinks fit, a discretion with which the Privy Council has decided no Court of Law can interfere.
By this decision and the refusal of two Secretaries of State for the Colonies to exercise their prerogative and insist upon Governor Nathan carrying out the provisions of the Ordinance, as defined by Governor des Voeux and the Courts of Law, and, as you have stated that the case does not appear to be one for a "Petition of Right," no course is left open to us than the Petition to His Majesty the King as suggested by you, asking for relief in the circumstances in which we are placed, and with the further information now given and in our letter of the 5th September, 1903, His Majesty may be pleased to command that "Right be done," and in that belief, and seeing that three Governors have failed to assess the amount of compensation fairly, from the facts in evidence, I would suggest, with all due respect, that the settlement of compensation be left to a Government official experienced in adjusting matters of compensation and myself in London, and thus end a matter which under a proper tribunal would have been settled years ago.
Sir,
I have the honour to be,
Sir,
Your Obedient Servant,
THOS. HOWARD.
Whitehall,
6th March, 1906.
With reference to your letter of the 5th ult. in regard to your claim against the Colonial Government of Hongkong in connection with the Praya Reclamation, I am directed by the Secretary of State to say that the matter is not one in which he has any authority to intervene; but he is informed by the Colonial Office that it is open to you, if you desire it, to forward through that Office a further petition to The King in regard to your claims.
T. HOWARD, Esq.
Cowes, Isle of Wight.
7, Castle Terrace,
I am, Sir,
Your Obedient Servant,
HENRY CUNYNGHAME.
He also wrote that it is needless to say that the Government had no desire
to accord other than the fullest justice in respect of private rights.
Mr. C. A. Cripps, K.C., has written that the Award being under the Ord- inance the Governor is bound to decide upon proper and legal grounds and not in an arbitrary manner.
Justice Fielding Clarke stated that it was within the competency of the Hongkong Legislature to modify, alter, and even destroy existing rights; although of course the greatest care should be exercised that no injury be in- flicted without adequate compensation.
Chief Justice Sir John Carrington endorsed this, and added that although the legal right is taken away it cannot but be a point of honour with the Gov- ernor to pay full regard to the moral right.
Attorney General Goodman stated before the Full Court, on the 30th March, 1898, that the Government had not said that it would not fairly and rightly assess the damage even if only morally bound, and he recognised the loss of intermediate rents as a proper subject of claim for compensation,
The present Chief Justice of Hongkong, Sir F. T. Piggott, who sat as Judicial Assessor on the recent Enquiry stated that in his opinion the case falls within the principle given in Cripps on Compensation" (4th Ed.) p. 128 and the owner is entitled to compensation for depreciation; and as to loss of rents, he states that if silting occurred this is a proper subject for compensation
may be awarded under the Ordinance.
and
8. Governor Sir Matthew Natha held the Enquiry, and the proceedings thereunder with the Award are printed in pamphlet form, which no doubt is in possession of the Colonial Office.
From these it will be seen that the Governor took the land alone as distinct from the land with the buildings thereon, as the only subject for Compensation, when he ought to have known that the land without the buildings had little, if any, earning power, and that from this earning power alone the true value of the property could be found.
He also took the values of the land as a Marine Lot at $3 per foot, and as an Inland Lot at $2 per foot, at one and the same time in the year 1898, when rents had decreased to $8,845 from $15,406 in 1895.
He allowed nothing for the difference in value between the cost of the buildings, $36,000, and the enhanced value of $50,000 as given by the Experts for the Crown.
And he disallowed claim for the loss of intermediate rents, which the Judicial Assessor has stated was a proper subject for Compensation, and could be awarded under the Ordinance.
in
He made an Award of $35,729 from conjecture only, without a single fact support and against all the facts in evidence.
Whereas our claim is $197,142, based upon net rentals of $15,406 in 1895 before rents began to decrease, capitalized at 16 yerrs purchase for a Crown Lease of 999 years, with 10%, added, giving $284,000 as the value of the Prop- erty in 1895, as stated and affirmed under Statutory Declaration by Messrs. Leigh and Orange, Architects and Surveyors; less $110,000 the sale value of the Property, as an Inland Lot in 1899, when rents had decreased to $4,308 for 283 days to the roth October in that year, when the Property was sold; leaving a difference in value of $172,000 which with $25,142 for loss of inter- mediate rents, make a total loss of $197,142.
C
9. Such a difference in our claim of $197,142 based upon facts, and the Award of $35.729 arrived at from conjecture only, will show conclusively that a grievous injustice has been done to us, and yet, Mr, Secretary Lyttelton states that Governor Nathan's decision must be final, notwithstanding that the terms of reference required that the amount of compensation should be justly arrived at.
Against this decision I have appealed to the new Secretary of State for the Colonies, the Earl of Elgin, who, it is stated sees no reason for departing from the decision of his predecessor.
10. This injustice could not have been done but for the passing of an Ordinance containing a clause which could not have found a place in an Act of Parliament, empowering the Governor to take away the rights of a Crown Lessee without paying adequate compensation, or even any compensation at all, if he in his absolute discretion thinks fit, a discretion with which the Privy Council has decided no Court of Law can interfere.
By this decision and the refusal of two Secretaries of State for the Colonies to exercise their prerogative and insist upon Governor Nathan carrying out the provisions of the Ordinance, as defined by Governor des Voeux and the Courts of Law, and, as you have stated that the case does not appear to be one for a
"Petition of Right," no course is left open to us than the Petition to His Majesty the King as suggested by you, asking for relief in the circumstances in which we are placed, and with the further information now given and in our letter of the 5th September, 1903, His Majesty may be pleased to command that "Right be done," and in that belief, and seeing that three Governors have failed to assess the amount of compensation fairly, from the facts in evidence, I would suggest, with all due respect, that the settlement of compensation be left to a Government official experienced in adjusting matters of compensation and myself in London, and thus end a matter which under a proper tribunal would have been settled years ago.
Sir,
I have the honour to be,
Sir,
Your Obedient Servant,
THOS. HOWARD.
Whitehall,
6th March, 1906.
With reference to your letter of the 5th ult. in regard to your claim against the Colonial Government of Hongkong in connection with the Praya Reclam- ation, I am directed by the Secretary of State to say that the matter is not one in which he has any authority to intervene; but he is informed by the Colonial Office that it is open to you, if you desire it, to forward through that Office a further petition to The King in regard to your claims.
T. HOWARD, Esq.
Cowes, Isle of Wight.
7, Castle Terrace,
I am, Sir,
Your Obedient Servant,
HENRY CUNYNGHAME.
695
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