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If Article XIII of the Letters Patent means, as it appears to, that the Governor must himself execute every grant or disposition, I do not see how Royal Instructions can alter the position. If, however, they can authorise the Governor to delegate this power, it seems that a local Ordinance or eRegulations would be equally efficacious.
even
I can see no difference between leases and grants in fee simple for this purpose. Article 13 refers to "grants and dispositions". In point of fact, however, I believe that no grants in fee simple are made in Hong Kong, all dispositions being by lease.
The provisions contained in the Letters Patent and Orders in Council of the Straits, Nyasaland, Trinidad, Fiji and British Guiana are all practically identical with Article XIII, and if the local legislation in the Straits Settlements, Nyasaland and Fiji is valid, I agree that the matter can be dealt with by a Hong Kong Ordinance. Section 4 of the Straits Crown Lands Ordinance (Cap.113) enables grants to be signed by other officers. ("Grant presumably means grant in fee simple, and I suppose the section has to be read subject to Part II of the Ordinance.) Section 8 of the Nyasaland Crown Lands Ordinance (Cap. 56) provides that the Lands Officer may execute on behalf of the Governor any conveyance or lease. Under the proviso he may not exercise the powers of Section 5 which is the section enabling the Governor to "grant, lease, or otherwise alienate land". Presumably the proviso means only that the Land Officer may execute the document but may not exercise the power to agree to a grant. The Trinidad Crown Lands Ordinance, Cap.158, gives no-
one powered
to execute grants or leases while Section 4 the Schedule to Fiji Ordinance No.1 of 1888 provide that the Commissioner of Lands may execute leases on behalf of the Crown. In British Guiana,
Ordinance No.42 of 1930 seems to have recognised that grants must be formally executed by the Governor, though, if this is so, I doubt whether a stamp of his signature with counter- signature by another officer is sufficient.
Are there no precedents on this question? The papers dealing with the British Guiana Ordinance may throw some light upon it, so also perhaps may Kenya files XF 7086/26 and 23039/1/34. I doubt, however, whether they will furnish much assistance and shall be glad if other precedents can be found.
At present I feel some doubt whether anything but an amending Letters Patent will
suffice. The literal meaning of Article 13 is that the Governor himself is to execute grants in accordance with local law or instructions not that the latter can authorise someone else to execute. It may be argued that there is nothing in the Letters Patent to prevent an Ordinance making provision entirely independent of the Letters Patent for the disposal of Crown lands; but it is
also