TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 76

22-APR-1991 17:33

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.02

delegation.

The 1974

21

amendment was

to

remove the fetter. lience, after che removal, it was understandable that reference was made to the amended. section 5."

1

the

Mr. Lee. accepted, quite rightly, that no local legislation including section $ of the Magistrates

from Article XIV of Ordinance can overrule or derogate

Therefore, if contrary to his submissions, I was to hold that Article. XIV prohibited delegation, then the only delegation in question would be unlawful.

Letters Patent.

Conclusions

1.

I am satisfied,

having regard to the changes in language and based on the other arguments addressed to me that the Governor s power to appoint public officers (including magistrates) under Article XIV is sub-delegable.

2.

1

•

4

I am also satisfied that, in fact, the Governor has purported to sub-delegate his powers under section 5 of the Magistrates Ordinance by virtue of the 1974 minúte,

the then Governor $ which siynifies

sub-ueleyate under that Ordinance.

intention to

3.

I am further satisfied that the section 5 powez to appoint magistrates is sup-delegable in law by virtue of section 53 of Cap. 1.

I do not think that the effect of section-63 Cap.. 1. is avoided either by the terms of section b of the Magistrates Ordinance itself or by reason of the terms of

In the Judicial Services Commission Ordinance, Cap. 92. other words I reject the submission that these two matcers indicate a contrary intention to section 63 within the meaning of section 2 of Cap. 1.

5

►

that the the Mayistrates

the

I

I reject the submission made by Mr. Lee puzgorted sub-delegation under section 5 of Ordinance is a sufficient sup-delegation in law of powers of the Governor contained in Article XIV prepared to construe the "February 1974 minute effective sup delegation of the Article XIV power to appoint agistrates.

!

as ક્ષેત

not

RgazonS

whea

There is

the Governor

22'd Ø490 698 238

་་ -,

102

A

me that

shred of evidence before signed the minute in February 1974 under

22:21 22-Þ0-1661