Page 144
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 The opposition of the principal Chinese residents even to the Ordinance in its present form was withdrawn only on condition that s. 4 should be introduced.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...
Page 1757
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The Secretary of State says that he is
144
"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 riven 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 authori-
-ty, the exercise of that discretion is subject to the leṛal
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
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Chiness from the Peak, and that this had to be abandoned. The
opposition or 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 vestad in the fovernment in Executive Council is,
in
1757
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