TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 74

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CONSTITUTIONAL AFFAIRS BR

852 840 1976

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at all. Legally the act of the official is the act of thư: minister. There is no need for prior authorization of subsequent ratification by the minister..

"

To apply this principle to the facts of this case

it woulu would, in my judgment, be most inappropriate. entail equating, the Chief Justice of Hong Kong, an office with an official. ranking second only behind the Governor,

Such a conclusion would in a Government department. seriously erode the independence of the Judiciary which is

in Hong Kong, at the core of the rule of law to which we, are so clearly committeu.

I In any event,

".

a

am satisfied that the Caxitona principle as explained recently by the House of Lords in R. Ꮴ . Secretary of State for the Home Department ex parte

is limited to 3 WLR 797,

situation Oladehinae (1990) where a statute places a duty on a ministex and that uuty is carried out, in fact, oy a member of that minister's department for whom that minister accepts responsibility,

The doctrine". would That case involved immigration issues. not appear to be available if a statute granted a power to. minister A, but,

in fact, the power was exercised by an official in the department of minister B for whom minister A would not be responsible.

I

In my judgment, the power to appoint magistrates has either been lawfully delegated to the Chief Justice or it has not. If it has not, the delegation cannot be

The argument contended for under the Carltona principle.

to the contrary contended for by Mr. Lee must have made M. Montesquieu turn in his grave.

ME.

In paragraph 57 of his written, submissions, Lee said that if the Carltona principle did not apply to this case;

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then the Governor can never delegate any of his multifarious

Jowers

or functions to anyone. And the result is plainly absura,

1

This submission completely overlooks the effect of section 63 of Cap. 1 and the possibility where required (as in the case of Article XIII; of amenuing the Letters Patent. Many Ordinances confer powers and duties on the Governor, which no one expects him to exercise himself, hence section 63 of Cap.

All that I am deciding is that, as between Governor and Chief Justice the appointment of magistrates, the Carltona principle can have no application whatsoever.

1.

in relation to

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