TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 22

DOMI TDLNTIAL

Amendments to Lelters Patent and Royal

1.

2.

34

Instructions

In TELNO 1273 we promised a fuller assessment of the judgment of Kaplan J in the case which challenged the validity of a magistrate's appointment. Our views on the judgment and its implications follow.

judgment.

We understand that you have received a Copy of the However, for convenience, we set out our own resume of the judge's findings as we understood them:

(a) the power conferred by the Sovereign on the Governor by Article XIV of the Letters Patent to appoint public

magistrates, is

officers,

sub-delegable;

including

(2)

tne

statutory power to appoint magistrates conferred

on the Governor by section 5 of the Magistrates Ordinance (Chapter 227) is also delegable when read together with section

and General Clauses

latter provides that

63 (1) of the Interpretation Ordinance (Chapter 1). (The

where an Ordinance confers

powers on the Governor, he may delegate the exercise of the power to any person, whether identified by

UL by Ollice);

was

ā purported delegation of the statutory VL appointment by the then Governor on 14

February 1974 in favour of the office of Chief

Justice and since March 1974 all magistrates have bcen appointed by the Chief Justice pursuant to that purported delegation.

Ine purported delegation in 1974 was made without

XIV power of appointment

reference to the Article

und

was แย evidence that the Governor's mind

was directed to it;

CONFIDENTIAL