TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 63

22-APR-1991 17:07

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.09

FLOM

that Оп 22nd October 1974

furtnex affidavit of Mr. Tsang,

to the Governor delngatew then Colonial Secretary (now Chief Secretary) appoint official..Justices of the Peace.

it appe the his power to

In October 1988, Dr. David Clark of Hong Kony University published in the Hong Kong Law Journal an article which questioned the validity of the appointment of magistrates by the Chief Justice pursuant to the aforesaia

In this article, he mentions that he brought delegation.

J

Ja

in

his views to the attention of the Legal Department. October 1989, both English language newspapers made reference to Dr. Clark's article in the Hong Kong Law Journal. Dr. Clark had no knowledye of the Peoruary 1974 minute.

I

The First time that this point was raised in any legal proceedings was when in March 1991, 5 months after his ruling on the stay application, a further application

Line in

Quite to mx. was made

of his appointment. respect naturally, he refused to accept that his appointment was

Keane went out of invaliu hence these proceedings. Addɛ.

Line's his way

to emphasise that it was only Mr. aypointment that vas

was being challengeu anu that the challenge itself only related to this particular Orders made by Mr. Line in

cases are not affected by However, it would pe the relief sought in this case. unrealistic to suppose that a finaing that Mr. Line was properly appointed would not have far-reaching

I must, Of consequences. In deciding the issues before me, course, have no regazu to the consequences which en adverse decision miyat create.

+

I

•

4

other

case.

not

In relation to Mr. Line's appointment referred to in Gazette Notice 1319 it will be noted that there is no reference to section 63 of. Cap. 1. That section provides

:

that;

"Where any: Ordinance confers powerS imposes. duties, upon the Governor he may delegate any person by name or the. person holding any office designated by him to exercise such powers or perform such duties on his wehalf

OK.

However, I nave peen reterred to anothez Gazette Notice in June 1988, involving a magistrate which expressly

to section 63 of. Cap. reference

there is no as a matter of law,

includes a suomits that,

1

MZ.

Lee

neea to

yazette the legal source of the power of appointment of a mayistrate.

that section ä oi

Ali

the magistrates

60 ̊4 0190 698 288

098 LL:ET 22-Þ0-1661