CONFIDENTIAL
FM HONG KONG
TO DESKBY 15120OZ FCO
TELNO 813
OF 151035Z MARCH 91
CONFIDENTIAL
Reg
Маза
HKO are lead dept.
Pl ensure they have tup
capy u.
ave y
167166
MDHIAN 8187
&
INFO ROUTINE UKREP JLG HONG KONG
14
:
2 MAR
QDIST?
TOP COPY
YRTELNOS 199 AND 484: AMENDMENTS TO LETTERS PATENT (LP) AND
ROYAL INSTRUCTIONS (RI)
1. AS WE HAVE TO FINALISE OUR SUBMISSION TO EXCO AT THE MIDDLE OF NEXT WEEK THE LATEST, IT WOULD BE PRUDENT IF WE TAKE STOCK OF THE POSITION SO THAT THERE WOULD BE NO MISUNDERSTANDING ON THE AMENDMENTS PRIOR TO THEIR SUBMISSION TO EXCO AND THE PRIVY
COUNCIL.
ICCPR
2. THE CLARIFICATION IN SECOND TUR IS MOST HELPFUL. WE HAVE NO DIFFICULTY WITH ARTICLE 2 OF THE AMENDING LP.
DELEGATION OF POWER OF APPOINTMENT BY GOVERNOR
3. ON THIS SUBJECT, YOU MAY WISH TO NOTE THAT TWO APPLICATIONS HAVE BEEN MADE TO THE HIGH COURT TO SEEK LEAVE FOR A WRIT OF HABEAS CORPUS AND FOR JUDICIAL REVIEW IN THE FORM OF AN INJUNCTION TO RESTRAIN A MAGISTRATE FROM CONTINUING TO EXERCISE ANY JURISDICTION. IT WAS ARGUED THAN THE MAGISTRATE WHO HAS EARLIER REFUSED TO GRANT AN APPLICATION TO STAY THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE APPLICANTS WAS NOT LEGALLY APPOINTED AND HIS ORDER WAS MADE WITHOUT JURISDICTION. THE APPLICATION FOR LEAVE FOR A WRIT OF HABEAS CORPUS WAS REFUSED BUT THE CASE OF THE JUDICIAL REVIEW HAS BEEN ADJOURNED.
4. WE ARE NOT PRIVY TO THE DETAILS OF THE GROUNDS FOR THESE ACTIONS BUT WE BELIEVE THAT THE ARGUMENTS HAVE BEEN BASED ON THOSE MADE PREVIOUSLY BY AN ACADEMIC IN THE HONG KONG LAW JOURNAL (HKLJ) (SEPTEMBER 1989). BRIEFLY SECTION 5 OF THE MAGISTRATES ORDINANCE EMPOWERS THE GOVERNOR TO APPOINT BY WARRANT MAGISTRATES IN HONG KONG. SINCE THE BEGINNING OF 1984 THIS POWER WAS DELEGATED TO THE CHIEF JUSTICE UNDER SECTION 63 OF THE INTERPRETATION AND GENERAL CLAUSES ORDINANCE. THE ARGUMENTS IN
THE HKLJ ARE:
A. SECTION 5 OF THE MAGISTRATES ORDINANCE DOES NOT GIVE THE
1
PAGE
CONFIDENTIAL