TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 65

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CONSTITUTIONAL AFFAIRS BR

852 840 1976

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1841 onwarus along which both siues nave taken mẹ. essence, the ter 'magistrate' has been used in earlier versions of the Letters Patent, but never. in. Article XIV. That is, in my juagment, a very strong indication that. before 1971 magistrates were intended to be...included in the expression 'other necessary officers' and after 1971, included in the term 'other public officers'.

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If wrong about juayes and Justices of the Peace, Mr. Keane submitted that mayistrates wera 'puolia officers' and with this submission, ar. Lee ayreed. However, Mr.

ayreed...However, Keane realised that if this is correct, tnon nis aryument coúla lead to the suzprising conclusion that the Governor -would have himself to appoint all public officers, 1.e. the

whole civil service consisting of some 190.000 persons. avoid this conclusion, Hr. Keane submitted that the Governor would not have to appoint every public officer personally. A difficult line would have to me drawn between officers and employees. He submitted that 'public officers' would include mayistrates and other senior civil servants, perhaps those being appointed to specific offices, such as the Crown Solicitor, the Crown Prosecutor

the Director of Administration to take out three . example's. Cap. 1 defines 'puplic officer'

any pérvon holding an office of emolument under the Crown in right of the Government of Hong Kong',

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Mr. Lee takes issue with this approach. saying that chaos would ensue because there would be frequent challenges to the appointment of civil servants ceyenuing on which side of the line their office was found to fall.

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In any event, Mr. Lee suomitted that this point was covexeu by authority, binding upon, e... In LAM Yuk-ming @ ather v. A.G. (1980) HXLR 815, a division of the Court of Appeal consisting of Roberts, C.J... McMullen, J. and Li, J.A had to consider an action brought by 26 dispensers. employed by the Hong Kong Government. The trial judye (Cons, J.

then was) dismissed, their application fom:a declaration helsing that under Article XVI of the Lettera Patent, the Governor had power to suspena them from office without pay. The appeal was dismisseu.

is implicit in the judgment of the Court of Appeal given oy Roberts, C.J., that they were of the view that dispensers were 'public officers'. Mr. Chany, who in that appeal appearau fox tne dispensers, attempted to aryue before me

Mẹ that the question whether or not the dispensers were public servants was not argued but was taken for granted, I find this a difficult submission to accest given the terms of the cetuiled judgment of the court. I am counu by this decision and it leaus Me to conclude that 'public officers' include the whole civil z0rvice.

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