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The Secretary of State says that he is advised that, having regard to the main object of the Ordinance, the power of exemption under s. 4 could not be held to be coupled with any kind of legal duty". With deference, I cannot acquiesce in the advice which has been given to the Secretary of State; it is, I believe, entirely contrary to the fundamental principle which has been laid down in a long series of decisions; that principle is that if a discretion is vested in any authority, the exercise of that discretion is subject to the legal duty to exercise it in a reasonable and not in an arbitrary manner; and that the action taken can only be justified if a reasonable explanation can be given.
But the advice which has been given to the Secretary of State omits one important consideration. It is perfectly well-known that the main object with which the Ordinance was first introduced was the complete exclusion of Chinese from the Peak, and that this had to be abandoned. The opposition of the principal Chinese residents even to the Ordinance in its present form was withdrawn only on condition that s. 4 should be introduced. The exercise of the discretion must therefore be referred to the main object of s. 4, and not to the main object of the Ordinance; and the exercise of the discretion vested in the Government in Executive Council is, in my opinion...
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