(26)
have ever vested in the Attorney General | Lady the now Queen, "when no power to ties on him, and he has not satisfied me that üle it vested in hira as such. such authority has been granted or dele- On all or on some or one of the points in gated to, or is vested in the Governor each step of the argument on this demurrer He has not satisfied me as a fact that any it will be open for the parties to supp ex officio Criminal Information has ever or object to my decision, which is that this been rightfully filed by any Attorney particular information is bad on several General in any Colony. It certainly grounds, some oùly of which I have referred has not in fact been filed in this Colony.to; the main one being that it is filed by a It has not been shewn that the A. G.'s war-
person who is not shown to have had, and rant confers any such authority on him. in whom I can find no authority to file it.
I do not decide that he has no such (authority, but only that it has not been shown to ine to exist in him, and I cannot is the absence of precedent infer that it [does so exist.
It is satisfactory to come to this con- elusion without entering on a consideration of the constitutional limits of Her Majesty's undoubted prerogative to file informations ex officio personally as her own prosecu tions. These are matters of high proroga- live which the parties have tried to force!
But the argument proceeds. If the At- torney General in this Colony can file such an information, does he cease to be Attor- on my decision. I do not question the ney General when he is absent from the right of Her Majesty to institute such pro- Colony? I iueline to think he does not. Or-ceedings in the Colonies by any person dinance No. 3 of 1865, § 5, in giving the form duly and adequately authorised in that he of the ordinary Information, assumes that half. That question does not, as it appears be continues for some purposes to be Attor- to me, arise. That in fact they will not ney General here. Now the Acting Attor- hereafter be instituted here by the Attorney) ney General is appointed by the Governor General I infer from what he has said.
What I have considered has been (not on his own authority, and for anght that appears to me it is an appointment by pa- questioning that such a Prerogative vests rol of which the Gazette is the only evi-in Her Majesty) whether the exercise of it dence, and I see no words in the Charter has been clearly vested in Mr Ball who has of the Colony which authorizes the Gover-been appointed, there being an Attorney nor to do more than provide for the ordi- General, in the way he has been appointed nary "due aud impartial administration of Acting Attorney General only. My deci justice and for putting the laws into exe-sion mainly rests on the narrowest possible cution. I have also read the form of ground. By Ordinance No. 4 of 1857, § 3 commission to a former Governor. I can costs are made payable by or to the Crown find nothing which delegates to the Gover- as by or to private parties. If this had nor or to His Excellency in Council any been a Criminal Information the prosecutor right to authorizo, still less to delegate, the would have had to pay the costs, and this: power to institute this proceeding, which is Ordinance assimilates the rule, as the Acting extraordinary and is personally "the A. G. and Mr Hayllar both admitted. Queen's prosecution;" and if such power Coatining myself to the consideration of wera vested in the Governor or in the Ex- the legal questions before me 1 give Jung- ecutive I nowhere see, there being an At-ment on the Demurrer for the Defeudant torney General, how it could have been and under the Ordinance just cited I add taken out of the Attorney General and that this Judgment must be with costs have been given to Mr Ball who had vested of all the proceedings, to be taxed and in kim only some (it seems to me only the paid to the Defendant. Perhaps the form ordinary) functions of the office; nor adopted in the Judgment against the Crown do I see how authority to exercise so high in the ex officio Information in the Praya a prerogative could be delegated by the case may be adopted as to this case. parol of the Governor--using the lang I have escaped from a consideration of uage of old real property lawyers, personal the constitutional questions in reference to privity is wanting. The extraordinary (if ex officio Informations, some of which were there be any such prerogative) functions pressed on me on both sides. If the pro- still remained in the absent Attorney ocedings have been unconstitutional, as was General. At least it seems to me that repeatedly urged on me by the Defendant's they were not granted to Mr Ball. I am Counsel, this is not the tribunal to decide therefore of opinion that if ou no other such questions, if they can be as they have than on this, the narrowest ground of been here eliminated from the legal ques decision, this Information is bad as being tion. My decision on the purely legal professedly filed by the Hon'ble. H. J. Ball questions is subject to review by the Judicial Esquire Acting Attorney General of our Committee of Her Majesty's Privy Council;
149
K. On Demurrer.
infer omnia non hite esse acts"? acr
I. Even if this were so Iratified the (Beron v. Deuman, but under article y of the Charter of Hong Kong the Governor may t'all necessary Officers for putting appoint
M ctn
the Laws in execution" "when Officer is nominated to an acting appointment Sconceive that he is impliedly clothed with all the Powers attached to the office which are not specially excepted. "IP.
no such admission There is no record of any such admi the judgi's notes and if the denied. "Ris the reding bei & by the Attorney General officio and Act to the Haster of the Crowr tite is not & pridat: Proxecution and therefore Loes not come under Lord Campbell's act as 1. Posle or otherwise.
all pay the Frdinancy sayr Coste in any the Crown chall Proceding in which farty would be timbles to coals. There cum be Cricut clearly Ordinance applies to civil suff and
& Praya case re
Case referred to by the C. I was a
(26)
have ever vested in the Attorney General | Lady the now Queen, "when no power to ties on him, and he has not satisfied me that üle it vested in hira as such. such authority has been granted or dele- On all or on some or one of the points in gated to, or is vested in the Governor each step of the argument on this demurrer He has not satisfied me as a fact that any it will be open for the parties to supp ex officio Criminal Information has ever or object to my decision, which is that this been rightfully filed by any Attorney particular information is bad on several General in any Colony. It certainly grounds, some oùly of which I have referred has not in fact been filed in this Colony.to; the main one being that it is filed by a It has not been shewn that the A. G.'s war-
person who is not shown to have had, and rant confers any such authority on him. in whom I can find no authority to file it.
I do not decide that he has no such (authority, but only that it has not been shown to ine to exist in him, and I cannot is the absence of precedent infer that it [does so exist.
It is satisfactory to come to this con- elusion without entering on a consideration of the constitutional limits of Her Majesty's undoubted prerogative to file informations ex officio personally as her own prosecu tions. These are matters of high proroga- live which the parties have tried to force!
But the argument proceeds. If the At- torney General in this Colony can file such an information, does he cease to be Attor- on my decision. I do not question the ney General when he is absent from the right of Her Majesty to institute such pro- Colony? I iueline to think he does not. Or-ceedings in the Colonies by any person dinance No. 3 of 1865, § 5, in giving the form duly and adequately authorised in that he of the ordinary Information, assumes that half. That question does not, as it appears be continues for some purposes to be Attor- to me, arise. That in fact they will not ney General here. Now the Acting Attor- hereafter be instituted here by the Attorney) ney General is appointed by the Governor General I infer from what he has said.
What I have considered has been (not on his own authority, and for anght that appears to me it is an appointment by pa- questioning that such a Prerogative vests rol of which the Gazette is the only evi-in Her Majesty) whether the exercise of it dence, and I see no words in the Charter has been clearly vested in Mr Ball who has of the Colony which authorizes the Gover-been appointed, there being an Attorney nor to do more than provide for the ordi- General, in the way he has been appointed nary "due aud impartial administration of Acting Attorney General only. My deci justice and for putting the laws into exe-sion mainly rests on the narrowest possible cution. I have also read the form of ground. By Ordinance No. 4 of 1857, § 3 commission to a former Governor. I can costs are made payable by or to the Crown find nothing which delegates to the Gover- as by or to private parties. If this had nor or to His Excellency in Council any been a Criminal Information the prosecutor right to authorizo, still less to delegate, the would have had to pay the costs, and this: power to institute this proceeding, which is Ordinance assimilates the rule, as the Acting extraordinary and is personally "the A. G. and Mr Hayllar both admitted. Queen's prosecution;" and if such power Coatining myself to the consideration of wera vested in the Governor or in the Ex- the legal questions before me 1 give Jung- ecutive I nowhere see, there being an At-ment on the Demurrer for the Defeudant torney General, how it could have been and under the Ordinance just cited I add taken out of the Attorney General and that this Judgment must be with costs have been given to Mr Ball who had vested of all the proceedings, to be taxed and in kim only some (it seems to me only the paid to the Defendant. Perhaps the form ordinary) functions of the office; nor adopted in the Judgment against the Crown do I see how authority to exercise so high in the ex officio Information in the Praya a prerogative could be delegated by the case may be adopted as to this case. parol of the Governor--using the lang I have escaped from a consideration of uage of old real property lawyers, personal the constitutional questions in reference to privity is wanting. The extraordinary (if ex officio Informations, some of which were there be any such prerogative) functions pressed on me on both sides. If the pro- still remained in the absent Attorney ocedings have been unconstitutional, as was General. At least it seems to me that repeatedly urged on me by the Defendant's they were not granted to Mr Ball. I am Counsel, this is not the tribunal to decide therefore of opinion that if ou no other such questions, if they can be as they have than on this, the narrowest ground of been here eliminated from the legal ques decision, this Information is bad as being tion. My decision on the purely legal professedly filed by the Hon'ble. H. J. Ball questions is subject to review by the Judicial Esquire Acting Attorney General of our Committee of Her Majesty's Privy Council;
149
why should the judge
K. On Demurrer.
infer omnia non
hite esse acts"?
acr
I. Even if this were so Iratified the
(Beron v. Deuman, but under article y of the wharter of tongdong the Governor may t'all necessary Officers for putting appoint
M
ctn
the Laws in execution" "when
Officer is nominated to an acting appointment Sconceive that he is impliedly clothed with all the Powers attached to the office which are not specially excepted. "IP.
no
:
or
such admission There is no record of any such admi the judgi's notes and if the denied. "Ris the reding bei & by the Attorney General officio and Act to the Haster of the Crowr tite is not & pridat: Proxecution and therefore Loes not come under Lord Campbell's act as 1. Posle or otherwise.
all pay
the Frdinancy sayr Coste in
any
Q
the Crown chall Proceding in which farty would be timbles to coals. There cum be Cricut clearly Ordinance applies to civil suff and
&
Praya case re
Case referred to by the C. I was a
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