reconsider all aspects of a capital case and re ch his own decision as to whether the Crown should be advised to exercise
the residual prerogative though it might be unconstitutional for him to give a direction to Governors that he wished them to
refer all capital cases to him as a matter of course for review
here. It has been the practice, whenever the Crown has been
petitioned for clemency, for the Secretary of State to consider all factors raised in the petition, and to consult with the Governor about them as necessary, There was also a period when all Hong Kong cases were considered in detail in the FCO and commented on to the Governor before he reached his decision and, as already mentioned in paragraph 8 above, when the Governor decided in the Tsoi case not to commute, the Secretary of State advised the Crown to do so. In general, however, the Secretary of State does not intervene by reviewing cases and advising on the exercise of the residual prerogative.
13. A departure from the practice described by Mr Creech-Jones would produce a two-tier system under which any case in which
the Governor had decided to let the law take its course would
automatically be reviewed in the F C 0. The disadvantage of this
solution is that it would tend to undermine the Governor's position
as the principal authority concerned, and might lead to more petitions to the Crowm and other pressures on the Secretary of State than have hitherto been experienced, as well as friction with the local government if the Secretary of State decided on commutation against
local advice.
14. There would moreover seem to be little object in departing from the Creech-Jones practice unless as a result the Secretary
of State found himself free to commute the death sentence in every case so as effectively to abolish or suspend capital punishment in the DCTs concerned. But there are serious constitutional objections to achieving this result otherwise than by way of legislation. It would be unconstitutional for the Secretary of State, under the guise of exercising the Crown's residual prerogative, in effect to suspend the law in each of the DOTS concerned providing for capital punishment. Accordingly, even if
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