TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 77

22-APR-1991 17:34

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.03

22

·

that anyone hac section 5 of the lagistrates Ordinance,

XIV of the Letters Patent. applied his mind to Article

to delegate his am satisfied that the Governor intended

all I know, he may have had the section 5 powers and for provisions of Cap. 1 well in mind.

I

chat it.

kanner. It

However, I cannot bring myself to conclude can De proper to deal with powers delegated by the- Sovereign to the Governor

to the Governor in such a casual

to have been asked voula

Deen simple for the Governor have

the section to sub-delegate both the Article XIV powers and 5 powers. It was not done and I

not see why any court to what he

in mingi maa should be forced to speculate as the relevant

It may

we said that this is a very here, Yet, technical approach.

are dealing with matters

time.

a0

we

+

of high constitutional importance which, in my judgment:

It LoeS dealt with properly. deserved to be dealt with

දය mind directed

the the Governor hau nis

and delegate the power he was being

that

ignore such

XnAw

of

ان

îacuna.

+

asked

to

that a

not appear

1

source

cannot

of

at

concedeu that he sub-delegation

witen he I agree with hž at

for such matterá

Although Mr. Keane quite fairly

that requirad no princisla

be in writiny, this nature had to suomitted that it is highly desirablə

יו

if

or ac an

in my

There is

ever

be recorded, How would anyone know what had been done soth the donor and donee of

no longer with the power were

us.

Surely it cannot 132 in the public interest for such matterS to be dealt with by a telephone call unzecorded meeting The donor of the power must judgment also communicate that fact to the donee.

evidence, whatsoever, that the Chief Justice was told that he was being askew to exercise the Governor's Article XIV power, Had he been so cold, he too kignť nave given the matter some Fürther thought.

no

I

*

18

•

•

·

one

sees, I reject Mr. Lee's submission that once

a clear as he says one does in the February 1974 minute,

the general intention by the Governor to sub-delegate,

is exercised even power to delegate under Article XIV

section 5 power is referrea to. though only the specific

answering aryument

that it involves The fallacy in this the question

is being delegateu?" by the general answer, "the power to appoint Magistrates", whereas the answer should be "tne power given to the Governor oy XIV of the Letters Patent of the Sovereign under Article

of

officers. class of public the

see how the I find it difficult

as same,

a matter of law.

"what

appointiny

answerS are the

section one namely magistrates". two

I fina little Volume 30 of Halswury

to

in fact

Assistance in paragraph 926 S Lave of Englanu nor

111

from Bruce Y

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of

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