Mr Stone HKD
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PIS.
FROM:
Miss Brooks Legal Counsellor
DATE:
10 April 1992
HONG KONG EXCHANGE FUND ORDINANCE: IMPROVED INVESTMENTS
1.
You have asked me:
(a) Whether it is necessary to obtain the personal approval of the Secretary of State as required under Section 3(2) of the Exchange Fund Ordinance and;
(b) Whether there are rules as to how one approaches these types of approval.
2. In the early leading case of Carltona Limited v. Works Comrs the Court of Appeal decided that so many functions were vested by statute in Ministers that it was inevitable that not all could be exercised personally. Lord Greene, MR explained:
'The duties imposed upon Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, a decision of the Minister'.
In other words, a Minister is not obliged to bring his own mind to bear upon a matter entrusted to him, but may act through an official of his department.
3. In the case of statutory provisions which involve the Minister in exercising judicial and quasi-judicial functions and probably also those of a legislative character, it is more likely that the courts would hold that the Minister should address himself to them personally. For example, orders which require the exercise of the Minister's discretion such as orders for the rendition of fugitive offenders would fall into the category of orders which would require his personal attention. On the other hand,
if a function is a of a purely administrative character, it is
AELAKU