SUPPLEMENT
Hongkong Daily Press.
Registered no a Newspaper at the General
Post Oice in the United Kingdom,
ESTABLISHED 1857 刺孖
THURSDAY, JAN. 23, 1941,
FULL TEXT OF JUDGMENT
-15-19 Marina House, Queen's Road Central.
G.P.Q. Bax No. 1.
BY
CHIEF
JUSTICE IN THE EVACUATION TEST CASE
Defence (Entry
Restrictions)
Regulations Not Ultra Vires
JUDGMENT FOR THE DEFENDANTS was given by the Chief Justice, Sir Atholl MacGregor, in the Supreme Court on Tuesday morning in the EVACUATION TEST CASE.
The case was brought by MRS. MABEL EVELYN BLAIE, of No. 12, Broadwood Road, who was re- presented by the Hon. Mr. Leo D'Almada, jun., instructed by Mr. Edgar Davidson, and the HON. MR. C. G. PERDUE, Acting Commissioner of Police, and MR. E. C. LUSCOMBE, A.S.P., were cited as the defendants for whom Mr. H.C. Macnamara, Instructed by Mr. E. W. Davies, Crown Solicitor. appeared.
The writ of summons stated the plaintiff's claims to be.--- (a) for a declaration that Regulation No. 3 of Defence (Edtry Restrictions) Regulations, so far as it applies to British subjects rest- dent in the Colony, is ultra vires, void and of no effect;
(b) alternatively, a declaration that the defendants have no power under Regulation No. 6 (b) of the said Regulations to compel the plaintiff to leave the Colony against her will;
(c) an injunction to restrain the defendants or any police officer authorised by the first defendant from taking action against the plaintiff under the said Regulations;
(d) such further or other relief as shall be just; and
(e) costs.
following declarations:
tions. 1940. so far as it applies to of which he is a national or British subjects resident in the sending him to his destination. Colony is ultra vires, vold and of no effect; and (2) That the defen-
4.
"Sir Richard Penbrugh's case (Rol. 44 E 3) who was warden "of the Cinque Ports, and had divers offices, annuities and lands graunt- ed to him for life and in fee by the King under the Great Seale, pro servitto impenso et impendendo. the King commanded Sir Richard to serve him in Ireland, as ĥls De- puty there, which he absolutely refused, whereupon the King by advice of his Councell seized. all things graunted to him pro servitio impendendo (in respect of that clause) but he was not upon that resolution committed to prison as I trust that it will be clearly by that record it appeareth; and understood that the action refer- the reason was because his refusalr red to above is not to be taken was lawful and if the refusall was as a mere threat but that you lawfull to serve in Ireland, parcell will give this matter your most of the King's Dominions, a fortiori, serious attention."
a refusall is lawful to serve in any The plaintiff took out her writ
| foreign country." two days later.
TWO HEADS Mr. d'Almada's argument for the plaintiff falls conveniently under two heads:-
The answer to this contention is
Darling J, as he then was, in Ches- given succinctly in the judgment of ter v. Bateson (1920) 1 KB. 829 at 832. "Mr. Langdon has contended I. So radical, so drastic an inva-
that this regulation violates Magna son of the liberties of the subject carta, where the King declares: be justified unless the To no one will we sell, to no one he statute by virtue of which action will we refuse or delay right or
OI
cannot
THE JUDGMENT
without prejudice to any proceed The Plaintiff, a British woman ings which may be taken against domiciled in Hongkong, by her writ him under regulation 34 of the claims against the defendants, who Defence Regulations, 1940, as ap- are respectively the Commissioner plied by these regulations (b) of Police and a Commissioned may, in the discretion of the com- purports to be taken authorises justice." I could not hold the re- Officer of the Police Force, the petent authority, be detained in such invasion in the clearest and gulations to be bad on that ground police custody until an opportunity most unequivocal terms. No such were there sufficient authority (1) That Regulation 3 of the De- occurs of returning him to his port regulation has been made in Eng given by a statute of the realm to fence (Entry Restrictions) Regula-ot embarkation or to the country land, and the considered view of those by whom the regulation was the British government as express-made. Magna Carta has not re- ed by the Lord Chancellor when mained untouched; and Hike "every discussing a comparatively minor other law of England it is not con- PLAINTIFF'S AFFIDAVIT encroachment on the liberty of the demned to The plaintiff in an affidavit filed subject, is that it would be impro-development or improvement which that immunity from dants have no power under Regu on December 13, 1940, the allega-per to make any such inroads ex-was attributed to the laws of the ..... lation 6 (b) of the sald Regulations tions of fact in which are unconcept. by statute. If the regulations Medes and Persians." to compel the plaintiff to leave the
tradicted, says!-
have any validity they must be Colony against her will. She also
The authority. for Mr. d'Almada's Paragraph 8. On July 2 last limited in their "application to per-submission claims an injunction
that the considered left Hongkong for reasons of health sons temporarily résident in Hong-opinion of the British Government The writ bears date December 13. and proceeded to Manila. I would kong, and cannot apply to persons is that any serious invasion of the 1940, and on the plaintiff's appll-have gone sooner had I been well domiclled here who, as Hongkong uberty of the subject should be cation in Chambers that day for
enough but I was not fit to travel Is their hoine, an interim injunction it was agreed until that date. My departure was "realm" the protection of which is not by Defence Regulations is to be are part of the achieved by Act of Parliament and that the hearing and determina therefore not connected with the the declared object of the Act. The found in the issue of the Solicitors" tion of that application should be treated as the trial of the action recent evacuation of women and courts are ever "rightly jealous of Journal for 3rd August, 1940: (84
the liberty of the subject, and will Sol. J. 457). "There are "therefore no pleadings, Par. 5 In November I'decided to construe every statute, and, a for- but the parties have agreed that return to the Colony without my tiori, subsidiary legislation in fav-Chancellor observed that, strictly "Replying, to the debate the Lord for our present purposes the de- husband's knowledge as my health our of liberty: and- fence be regarded as a general
speaking, there was no need for the in Manila was still unsatisfactory II. The regulations complained Government to introduce the Bill, traverse and the plaintiff be put and my private affairs required of cannot on any reasonable con- because they could do the whole to the proof of all material alle-urgent attention, and I obtained astruction be held to be reasonably thing by Orders in Council under gations.
passage on the s.s. "Tjitjalengka" necessary for any of the purposes the Defence Regulations, but the to Amoy via Hongkong. I did this for which under the Act Defence Government took the view that, as because the steamship company Regulations may be made.
they were dealing with the rights would not give me a passage unless Mr. d'Almada has referred me to and liberties of ordinary citizens, I paid the fare to Amoy.
the well known passage in Black-it would be a monstrous thing to 1939, was extended to the Colony Par. 8. The vessel, salled on stone's Commentaries which is use that power without bringing it by Order of His Majesty in Council November 19 and therefore I knew found at page 133 of Volume I of before the attention of Parlia- dated 25th August, 1939. Section I nothing whatever of the regulations | Kerr's edition of 1857;.
EMERGENCY POWERS
The Emergency Powers (Defence) Act, 1939, which was passed by the Imperial Parliament on August 24,
sary
children.
}}
ment."
DIFFER RADICALLY On this citation I would only say
(1) of that Act, making the neces-published on that date in Hong- "A natural and regular conse-.
modifications prescribed by kong. I had a British passport. quence of this personal liberty £3 the Order in Council reads:
Par. 7. On arrival in Hongkong that every Englishman may claim *I (1) Subject to the provisions the Police at arst refused me per-a right to abide in his own country that the considered opinion of His of this section, the Governor may mission to land but ultimately I so long as he pleases, and not to be Majesty's Government on the ques- make such Regulations (in this Act was allowed to land and was taken driven from it except by the sen- tion then before the House of referred to as "Defence Regula- to the Immigration Office where Itence of the law. The Sovereign Lords appears to differ radically tions") as appear to him to be was told I must proceed on Sun-in deed. by his royal prerogative, and irreconcilably from the opinion necessary or expedient for securing day, November 24.
may issue out his writ ne exeat that Government held at that time
the public safety, the defence of Par. 8 However, on the Saturday regno, and prohibit any of his sub-about evacuation in Hongkong; as the territory, the maintenance of I went with my husband to the jects from going into foreign parts the affidavit of Mr. N. L. Smith public order and the eficient pro- Immigration. Office and succeeded without licence. This may be shows, but that is a matter for the secution of any war in which Hts in getting permission to stop over necessary for the public service consideration of the Executive Majesty may be engaged, and for until November 30 on furnishing a and safeguard of the Common-Government of the Colony, and maintaining supplies and services bond for $200..
wealth. But no power on earth, cannot have any bearing on the essential to the life of the com- Par. 10, I did not sail on except the authority of Parliament, conclusions to which a court of munity!"
November 30 and on the 11th De-can send any subject of England Justice may come. It is interesting On November 19, 1940, the Gov-cember I received the following out of the land against his will: no, tie to note that Lord Simon had · ernor under the foregoing powers letter from the Colonial Secretary:not even a criminal, for exile and no doubt th his own mind about made Regulations entitled the "Defence (Entry Restrictions) Re- gulations, 1940, which contain, inter alia, the following prov!- sions:-
II (1). In these Regulations (a) "competent authority" means the Commissioner of Police,
HI (1)No person, whether a British subject or not, coming as a passenger by sea or air from a place outside this Colony shall dis- embark in this Colony unless (b)' he, has first obtained on such pass- port, travel document, certificate, permit of pass the written indorse- ments of the competent authority permitting him to enter this colony...
V. In making or declining to make any indorsement for which provision is made by these regula tions, the competent authority shall act in accordance with the general or special instructions of the Colonial Secretary, and the Colonial Secretary may revoke or vary any decision of the competent authority.
"Madam, I am directed to in-transportation are punishments the competence of a Defence Re- vite your attention to your fallure unknown to the Common Law. To gulation to achieve the same end" to comply with the conditions this purpose the Great Charter de-as the statute the House was then attached to your recent entry clares that no freeman shall be debating.
was
into the Colony from Manila. As banished unless by the judgment As to what is the proper con- you know, this condition of his peers or by the law of the struction to be placed on such le- that you should leave the Colony land. The law is in this respect so gislative enactments as the Emer- by the 30th November last, and benignly and Uberally construed gence Powers (Defence) Act, 1939 you and your husband entered
for the benefit of the subject that. and the Defence Regulations the into a bond to secure the per- though within the realm the Sove-position is I think clear. In re formance of that condition,
reign may command the atten-Boaler 1915 1 KB. 21, Scritton J. dance and service of all his lege- (as he then was) said: As you are still in the Colony men yet he cannot send any man and have therefore pot compiled out of the realm, even
"It is of course quite competent upon the to Parliament to deprive any sub- with the condition above referred public service; excepting soldlers Ject of the King of any right either to I am to point out that you and sailors the nature of whose absolutely or in part. But the have thereby contravened the employment necessarily implies an language of any such statute provisions of regulation 3 or the exception. He cannot even consti- should be jealously watched by the Defence (Entry Restrictions) Re-tute a man Lord Deputy or Lieut-courts and should not be extended gulations, 1940, published as Covenant of Ireland against his will, beyond its least onerous meaning erriment Notification No. 1268 in nor make him a foreign Ambassa- unless "clear words are the Gazette Extraordinary of dor, for this might in reality be no justify such extension." And in ex used to November 19, 1940, /
more than an honourable exile." parte Zadig R. V. Halliday, (1917) I am now to inform you that INTERESTING AUTHORITY- AC. 260 Lord Atkinson in his enquiry is being made as to when The authority, relled on for that speech at page 274 said "For my- shipping accommodation will be statement of the law is part II of self I must say that I never could first available to enable you to Sir Edward' Coke's Institutes of the appreciate the contention that leave for Manila, and, that the Laws of England where at page, 471 statutes fnvading the liberty of the Police will be directed in accord the early authorities are collected. subject should be construed after. ance with the provisions of regu- In view of Government's avowed one manner and statutes not in- lation 8 (b) to take you into cus-intention to send the plaintiff not vading it after another that certain tody shortly before the ship salle to a part of His Majesty's Domi- words should in the first class have and to arrange for your deparnion but to a foreign country, one a meaning put upon them different of these authorities is interesting." from what the same words would
VI. If any person fails to com- ply with any condition Imposed under regulation 3 he shall be deemed to have contravened the provisions of that. regulation and, ture on 15.