TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 78

22-APR-1991 17:34

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.04

23

371 which deals with co-existing Bruce (1871] L.R. 11 Eq.

If a donee has powers under testamentary dispositions.

one will not, without more than one power, the exercise OE more, show an intention to exercise the rest" (Halsbury). Nothing has been pointed to which enables me to hold that,

a matter of construction, the February 1974 minute effectively delegated the Article XIV powers to the Chief Justice..

as

Colonial Laws Validity Act 1863

+

¿

Although this statute appeared as the first item

neither side mentioned on Mr. Keane's list. of authorities, it during the course of their original submissions and neither accepted a later invitation from the court to make

In those circumstances, I have submissions upon it considered what bearing (if any) such Act might have upon the wide ranging submissions placed before me.

not

Result

was able to delegate

r

In those

SO

have It follows from the foregoing that I concluded, that whereas the Governor his powers of appointment in relation to magistrates under

he has not, in fact, Article XIV of the Letters Patent, delegated these powers to the Chief Justice. circumstances, it must follow that Mr. Line's appointment is invalid as having been made by the wrong person. no reflection upon hasten to add again that this is Line in any shape or form and it is, of course, reflection. upon the work that he has faithfully carried out during the nearly three years that he has sat as magistrate in Hong Kong.

•

no

a

as a

I

MA.

However, that is not the end of the matter because Mr. Lee, on behalf of the Attorney General, has supmitted that even if Mr. Line has not been properly appointed J/ reason of the lack of delegation above referred to, Mr. Line should, for all other purposes, be treated magistrate under what has been termed the de facto judge principle. I have heard wide ranging arguments upon the very existence of this doctrine and its applicability to

and it is now to this part of the the facts of this case, case that I must turn my attention.

De Facto Judge Supmission

I nave to decide firstly, whetner such a doctrine

if it does what part it exists in English law; secondly

/

2'd

0490 693 ZSA

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