TNAG-1101-FCO40-1351-Legislation-on-homosexuality-in-Hong-Kong-including--Report--1981 — Page 589

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of existing terms of reference; the latter is removing or withdrawing

powers of enquiry that have already been conferred.

The Governor in Council confers jurisdiction on the Commission

of Inquiry and, up until the time that it has performed its task (1.e.

reported to the Governor), he may revoke its jurisdiction. There is no

legal restraint on his powers to do this by issuing directions under

Section 3(c). There may be, however, good reasons why he should choose

not to exercise his powers in this way which is, so far as the author can

gather, unprecedented in England and Hong Kong.

Any directions given under Section 3(c) can only relate to

the terms of reference (i.e. matters of jurisdiction of the Commission

of Inquiry). If a direction were to be issued that question of the

allegations of homosexuality against the C.P. were outside the terms of

reference the Commissioner might allow the matter to be explored on the

basis of assessing the C.P.'s credibility (there have been hints of such

an approach by Beveridge, a.C.). If the Governor in Council purported

to direct under Section 3(c) that" the allegations of homosexuality against

the C.P. are outside the terms of reference for all purposes, including

the purpose of assessing the credibility of witnesses then the under-

lined part would be ultra vires the powers of the Governor in Council and

would lack legal effect. The reasons for this are: the assessment of

the value of evidence is a function reserved to the Commissioner by the

Ordinance which cannot be usurped by the Governor in Council; directions

under Section 3(c) can only relate to terms of reference; ultra vires

directions are, in law void and of no effect.

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/ Section 3(c)

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