CONFIDENTIAL
Reference....
Mr. Gaminara
Chung Wa School
I have discussed this problem with Mr. Steel and the following represents our joint views.
2. I should say first that we do not altogether understand why the de-registration process needs to be perfected by some formal act and we cannot trace anything in the Education Ordinance bearing on this But we are content to take it from you that this is the position and that the sole problem is therefore whether a fresh closure order can be made so as to keep the school closed for a further period, thus enabling the completion of the de-registration process to be deferred.
3. As we understand it, the Hong Kong Law Officers have advised that where the Director of Education has directed the closure of the school for a particular period under section 51 of the Ordinance, he has no power to make a fresh closure order for a further period on the same grounds. We would not dissent from this but we wonder whether, in reliance on section 39(1) of the Interpretation Ordinance (which provides that where any Ordinance confers any power, the power may be exercised from time to time as occasion requires), it would not be possible now to make a new closure order for a further period either on the basis that there is a continuing danger or risk of danger to persons in the school or on the basis that the conduct of the managers, teachers or pupils of the school continues to be unsatisfactory. We quite accept that it would not be proper to make a new order for a further period based on precisely the same "offence" as was the basis of the first order. But if the Director of Education is genuinely satisfied that there has been a continuing "offence" (and a fortiori if there is a continuing danger) it seems a reasonable interpretation of the law that he can make a further closure order to deal with it.
4. I must emphasise that the formal responsibility for advising the Hong Kong Government on the proper interpretation of the laws of the Colony rests with the local Law Officers and we cannot force our interpretation on them. But we think that there is at least sufficient doubt about the interpretation they appear to be adopting to make it reasonable to ask them to look at it again in the light of the considerations I have suggested.
Ch@ymant
(C. W. Dyment) 13 August, 1968
CONFIDENTIAL