TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 64

22-APR-1991 17:07

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.10

“

Ordinance provides is that the fact of appointment shall be notified in the Gazette.

•

ศษ

such

The position is thus as follows. Since 1974, when the Governor purported to delegate this power to the Chief Justice until 1984 the Gazette Noticas referred to the Governor as the appointor whereas we know from Mr. Betts that, in fact, the Chief Justice has made all such

the Gazette Notices appointments since 1974. Since 1984, refer to the Chief Justice as appointor firstly without reference to section 63′ of Cap. 1 and thereafter with references. Mr. Lee contends that the changes of practice make no difference to his submission that sub-delegation is lawful. He goes on to submit that it was correct' to refer

the Governor as being the appointor because the Chief Justice

making such appointments as his delegate or agent He submits that as long as the appointment is gazetted, there is no need under section 5 of the

to

Ma

-

istrates Ordinance even to publish the name of title of the ap intor.

Does Article XIV of the Letters Patent apply to Magistrates?

મ

Mr. Keane submitted that a magistrate was a judge, alternatively a Justice of the Peace, and in any event public officer. In submitting that a magistrate was a juage, Mr. Keane referred to magistrate as "a person authorised to exercise the functions of a judge of limited jurisdiction". He emphasised that it is the Function that is crucial and not the appellation. He took me through the history of mayistrates in Hong Kong from earliest times.

This

It appears that there is no local legislation relating to the appointment of Justices of the Peace. is solely derived from Article XIV of the Letters Patent. If only the Governor could appoint Justices of the Peace, so the argument goes, and a magistrate with greater power than a Justice of the Peace is ex officio a Justice' of the Peace a fortiori, a magistrate can only be so appointed. This argument leads' to the conclusion that the Governor's delegation to

to the Colonial Secretary in 1974 was also unlawful.

I Kina it impossible to read Article XIV in the way Mr. Keane submits. I am not prepared to hold that a magistrate is a judge within the meaning of

meaning of Article XIV. Nor am I prepared to holu that ́a màyistrate iş a Justice of

the Peace within that Article albeit that under the Magistrates Ordinance, ¤ magistrate is an ex officio Justice of the Peace. I arrive at this conclusion after yiving full consideration Co the historical excursus from

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