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specified in the Ordinance should in present conditions be able, for instance, to continue to dispose of Hong Kong funds or perfomany of the other functions concerned; it must be the case that he would be acting under duress and for the benefit of the enemy directly or indirectly.
Could Mr. Caine and I discuss further with you at any time suitable for you?
Erkant.
1th January, 1942.
This was discussed last Tuesday by all the Legal Advisers with Mr. Gent and Mr. Caine. It was decided that the Order in Council should have the following effect.
(1) The Governor, the Governor in Council, and all officers and authorities of the Hong Kong
Government should be divested of all powers conferred on them by law, and those powers should be transferred to the Secretary of State.
(2) Power to amend existing laws should remain.
(3) The Order would have retrospective effect from the day after the Japanese occupation, i.e. 26th of December. This, however, cannot be done in so far as it relates to the Emergency Powers (Defence) Act since that Act gives no authority to H. M. in Council to make retrospective orders. I propose therefore that it should suffice if Section 2(2) and (3) Ware given retrospective operation.
The transfer of powers and the Secretary of State's power to amend cannot be applied to instruments made under Acts of Parliament, nor I think can this Order affect Letters Patent. If statutory Orders in Council are to be covered they must be mentioned specifically, and the authority of the Acts under which they are made must be expressly invoked. I think therefore it is necessary to define precisely the instruments to which this Order is to apply, and I have used in Section 2(2) and (3) the word "enactment" and added a definition of that word in Section 1. The drafting of paragraph (b) of the definition may seem rather strange but it is designed for the possible case of an Order in Council made partly under an Act of Parlia- ment and partly by virtue of the prerogative this Order will be . There is no reason why the Secretary of State's powers should not have effect as respects such an Order in so far as it is not made under statute.
as
I have amended the original draft Order in red so as to show the amendments I have made and have also had it recopied.
X Mob Wany
22/1/42.