which has followed."
In that case, the regulation in question might have been
made because it was deemed necessary or expedient for any of
five or six different purposes. It was not stated in the Order
in Council, that it was in fact deemed necessary or expedient,
but because the Order in Council was in fact made, and made by
virtue of the particular power, it was a matter of necessary
implication.
In the present ease, there is power to make
regulations if the Governor in Council is of a certain opinion
-6-
94A
upon two matters. Does not the fact that the regulations were
made, and expressed to be made under that particular power,
Both are
equally imply that the Governor in Council considered that an
Occasion of emergency or public danger had arisen and that the
regulations were desirable in the public interest?
essentially matters of opinion and whether in fact such an
occasion had arisen is no concern of the Courts.
In Liversidge v. Anderson, 1942 A.C. 206, Lord Atkin,
referring to the unlimited discretion given to the Secretary
of State, added the words
acts in good faith". The same words are applicable here to the
Governor in Council and there being nothing on the face of the
regulations to indicate that the proper matters have not in
fact been considered the Court feels, as did the Court of
Appeal in Rex v. Comptroller General of Patents that as a matter
of construction it is a necessary implication that they have.
It may be said that the first matter i.e. that the
Governor in Council must consider the occasion to be one of
emergency or public danger is a condition precedent to the
making of the regulations; but so is the fact that he must
consider the regulations desirable in the public interest. We
think that if it is right to infer one from the fact that the
power has been exercised under the section, the same applies to
the other. We hold therefore that this submission fails.
"Assuming as everyone does that he
The second contention is that the Emergency Regulations
Ordinance (Cap. 241) is itself ultra vires the Legislative
Council of Hong Kong. Counsel pointed to the extremely wide
powers given to the Governor in Council by Section 2 including
the provision in Subsection 4 that the regulations shall have
effect notwithstanding anything inconsistent therewith in
existing legislation. He conceded that Colonial legislatures
have a certain power of delegation and relied strongly upon
the use of Ping Shek and another v. The Canossian Institute
T
7
95
33 H.K. L. R. 66, as having formulated the test to be applied.
There the Chief Justice said (at p. 71) :-
"Given that the Proclamations now enjoy only this qualified status, it
remains to consider, on general principles, whether the delegation of
legislative power by section 8 is sanctioned by the Letters Patent. It
is settled law that a colonial legislature has some power of delegation
see, for example, Powell v. The Apollo Candle Company, 10 A.C. 282,
Hodge v. The Queen 9 A.C. 117 and The Queen v. Burah 3 A.C. 889 and the
only question is whether the particular delegation provided for in
section 8 lls on the right side or on the wrong side of the line.
-
-
We are of opinion that, in deciding this issue, the question we should
ask ourselves is whether, by the delegation, the Legislature has wholly
or partly effaced itself see Street on Ultra Vires p. 429."
-
Counsel for the accused asked the Court to say that the powers
here delegated went far beyond the ordinary power of making
by-laws and that they were therefore on "the wrong side of the
line".
The word "offaced" may have different shades of meaning.
If in the context it is meant to indicate a complete and final
parting with legislative authority, we agree that that would be
ultra vires, as it would involve an alteration of the Colony's
That is clearly beyond the powers conferred by
constitution.
the Letters Patent and is clear law. Again if "partial effacement"
means a final parting with legislative authority in some limited
sphere the same reasoning applies. But beyond that, the word
appears to be of little assistance.
It seems to the Court that the trend of modern opinion
is to regard a Colonial legislature as being, not mere delegates
of Imperial power, but supreme within their own limits, and
within the powers conferred by the Letters Patent. Thus in Keir
Cases in Constitutional Law (3rd Edition) at p. 412
& Lawson
it is said :-
"It is therefore not surprising to find that the formula enabling a
colonial legislature to make laws for the 'peace, order, und good
government' of the Colony, whether contained in Letters Patent from the
Crown or in an Act of Parliament, has generally been interpreted by the
Courts to mean a grant of sovereignty, to be exercised within the limits
laid down by the instrument
- 8.
96
conferring it, but otherwise unrestricted. They have discouraged all
attempts to impose further limitations and to suggest that the
legislatures of the colonies are anything less than sovereign within the
spheres allotted to them. The view that such a legislature was merely a
delegate legislating on behalf of the Imperial Parliament and therefore
incapable of delegating its authority to a subordinate body,
discountenanced by the Privy Council in Reg. v. Burah, (1878) 3 App.
Cas. 889, was directly rejected by them in Hodge v. Reg., (1883) 9 App.
Cas. 117, where it was raised with regard to the province of Ontario."
In Hodge v. Reg., the authority last mentioned, in the judgment
of their Lordships at p. 132 is the following -
"It appears to their Lordships, however, that the objection thus raised
by the appellants is founded on an entire misconception of the true
character and position of the provincial legislatures. They are x in no
sense delegates of or acting under any mandate from the Imperial
Parliament. When the British North America Act enacted that there should
be a legislature for Ontario, and that its legislative assembly should
have exclusive authority to make laws for the Province and for
provincial purposes in relation to the matters enumerated in sect. 92,
it conferred powers not in any sense to be exercised by delegation from
or as agents of the Imperial Parliament, but authority as plenary and as
ample within the limits prescribed by sect. 92 as the Imperial
Parliament in the plentitude of its power possessed and could bestow.
Within these limits of subjects and area the local legislature is
supreme, and has the same authority as the Imperial Parliament, or the
Parliament of the Dominion, would have had under like circumstances to
confide to a municipal institution or body of its own creation authority
to make by-laws or resolutions as to subjects specified in the
enactment, and with the object of carrying the enactment into operation
and effect."
If this is the correct viewpoint, and we respectfully
agree that it is, the power of a colonial legislature to delegate
is a full one, limited only by the necessity not to go outside
the powers conferred by or contravene the rights reserved by the
Letters Patent or other constitutional document. As is well
known, delegation of powers almost parallel with those given
by the Emergency Regulations Ordinance has been resorted to
frequently in England under the various Emergency Powers Acts. If the
legislature of Hong Kong is supreme (subject to its
constitution) in its own area there can be no reason why it should not
act similarly it is not and cannot be suggested that
-
the law is not one for the "peace, order, and good government"
of the Colony.
יז'
- 9 -
Even by the "effacement" teat, we would not hold that
the delegation of the powers is ultra vires. Wide though the
powers may be, the Legislative Council retains a very firm and
close control by virtue of Section 14 of the Interpretation
Ordinance (Cap. 1). No regulation involving the imposition of
the death penalty can become of force or effect without the
prior approval of the Legislative Council - this is provided
specifically by the Emergency Regulations Ordinance as well.
All other regulations must be laid on the table at the first
meeting of the Legislative Council after their publication in
the Gazette and the Council may repeal or amend any of them,
There is in addition the overriding power to repeal or amend
the Ordinance itself. Te see nothing there which can be called
effacement as we understand it.
On these grounds, we hold that the regulations are
not ultra vires; it becomes therefore unnecessary for us to
deal with the well considered argument of the Solicitor-General
in which he submitted that the non-exercise of the power of
disallowance by His Majesty cured any lack of authority
otherwise existing.
The answer to the question of law reserved for the
opinion of this Court is that the regulation under which the
indictment is laid is not ultra vires, and the Court, so far
as that question is concerned, has jurisdiction to try it.
(Sd.) Gerard Howe
President.
18. 1. 52.
(Sd.) 7.J. Gould
Puisne Judge.
18. 1. 52.
(sd.) A. D. Scholes
Acting Puisne Judge.
18. 1. 52.
SUMMARY OF ARGUMENTS ADDRESSED TO THE COURT
BY LAW OFFICERS.
す
98
¡
L
The Honourable George Strickland K.C., (Attorney General) and James
Reynolds Esq., (Solicitor General) for the Crown.
Strickland -- Applying the effacement theory laid down by
the Full Court in Ping Shak'a case clear there has been no effacement
here. Power to repeal Ordinance exists and this has been held
sufficient in other cases. Here however there is direct control as
the particular regulations before the Court were required by the
enabling Ordinance to be approved by Legislative Council and were in
fact so approved. Moreover by virtue of section 14(d) all other
regulations made under the Ordinance may be amended by resolution of
Legislative Council.
Te submit however that apart from limitations of charter and any
limitations imposed by Imperial enactment neither of which arise here,
colonial legislature is sovereign in the sphere allotted
to it by Article VII of the Letters Patent Hodge v the Queen, 9 A. C.
117, Riel v Queen 10 A.C. 675. We adopt the statement in Kerr
and Lawson Constitutional Cases 3rd Ed. 412. The same principle
applies to colonial legislatures created by virtue of the prerogative
Chennard & Co. and Others v Arissol 1949 T.L.R. 72 save that it is
admitted that in the case of unrepresentative legislatures there is no
power to alter constitution. Delegation to Executive of power to
make Emergency Regulations is not an attempt to alter constitution and
is sanctioned by constitutional practice not only of Imperial Parliament
(Emergency Powers Defence Acts) but of H.M. in Council
(see the Emergency Powers Order in Council 1939 which will be found in
Hong Kong Gazette 1941 p. 1983) and other colonies e.g. Singapore
Ordinance of 21st July, 1948. The effacement theory is open to
serious criticism as failing to indicate any true test as to what is
on the right side or wrong side of the line. The only safe guide is
alteration of the constitution. No case in which a delegation has
been held to be bad on the ground of effacement. The Manitoba case
1919 A.C. is distinguishable as there was clearly an attempt to alter
the constitution.
As to the validity of the Emergency Regulations themselves -
the Ordinance does not require a Proclamation and the Courts cannot
therefore hold that a Proclamation is required. Nor is any recital
required that the Governor in Council has considered that a state of
emergency or public danger has arisen and that it is desirable in the
- 2
-
99
public interest to make the regulations. Where the exercise of a power
depends upon the existence of a condition which is purely subjective and
an instrument ex facie regular purporting to exercise the power is
produced there is a presumption in the absence of bad faith that the
official exercising the power complied with the condition. Liversedge v
Anderson 1942 A.C. 206. Moreover it is clear from the same case that
good faith in presumed and that the condition in this case is purely
subjective. Rex v Comptroller General of Patents 1941 2 K.B. 306 decided
that an order is ex facie regular if it purports to exercise the
relevant power and that recitals are unnecessary as compliance with the
subjective conditions was implied by necessary implication from the
order. There the act was, as here, a legislative act,the making
ney of Emergency
Regulations. It is submitted that probably understood
there is no conflict between the cases but if the Court considers
there is any conflict Rex v. Comptroller General of Patents must be
preferred as being on all fours with the present case. Jones (Machine
Tools) Ltd. v Farrell v Muismith 1940 3 A.E.R. is no longer good law.
For the position where the legislative or executive act is not ex facie
regular see Carltona Ltd. v Commissioner of Works and
Others 1942, 2 A.E.R.
It is also submitted that upon the proper construction of the words "in
exercise of the power" which can only mean "in due or
proper exercise of the power" section 30 of the Evidence Ordinance (Cap.
8) applies and cures any defect which might be deemed to arise
by the absence of recitals.
Reynolds Even if section 2 of the Ordinance is ultra
vires the powers of the local legislature as such, His Majesty having
assented to it, by not exercising his powers of disallowance, in
exercise of his prerogative right of legislation, has cured the
defect,
-
The Crown's power of disallowance is not a mere executive act
it is a legislative act. Under Art. IX of the Letters Patent and
section 30 of the Interpretation Ordinance disallowance by the Crown
does not have a retrospective effect but an Ordinance disallowed only
ceases to have effect as from the date of such disallowance the
exercise of the power in this respect has an effect akin to that of a
repealing Ordinance and so is a legislative act.
The sovereign power of legislation for a conquered or ceded
Colony is vested in the Crown and when the Crown grants such a Colony
a legislature with limitations upon its powers a residual power of
legislation remains in the Crown and is exercisable by the Crown by
· 3 ·
-
100
virtue of its power of non-disallowance.
Inglis v De Barnard 3
Koo. P.C. 425; In re Iu Ki Shing (1908) 3 H.K.L.R. 20; Re Chan
Yue Shan (1909) 4 H.K.L.R. 128.
ว
APPENDIA 2
THE ERGANCY ALGULATIONS ORDINANCE
Chapter 241.
Regulations by the Governor in Council
101
Hao.osure No. 2
In exercise of the power conferred by section 2 of
the EmergeHoy Regulations Ordinance the Governor in Council has
made the following regulations
Citation.
1.
Regulations
These regulations way be cited as the Emergenoy (Principal) (Amendment)
Regulations, 1952, and shall be reau as
(G.N.h.277/49) one with the Emergency (crincipal) Regulations, 1949.
Repeal of
regulation
116A and
addition of
2. The principal regulations are hereoy amended by the
repeal of regulation 116A and the insertion as regulation 116 of
now regulation the following
116 to the
principal
regulations.
"Death penalty
for certain
offences in connection with
pulsession of quantities of arma, ammunition or explosive substances,
carrying bcube and grenades and using arus
cr explosive substances.
116. (1) Any person who without lawful
authority carries any bomb, grenade, wine or
other apparatus, machine or implement capable of
A
being used, as/bomb, grenade or mine, shall be
guilty of an ofience against this regulation and shall
on o nviction on incictuent be punished with death.
(2) Any person who without lawful authority
user or attempts to use arms, ammunition or any explosive substance
against any person or property, shall be guilty of an offence against
this regulation
anu shall un conviction un inuiotuent be punished
with death.
(3) any person who without lawful authority has in
in his sscssion anus, aunition or explosive
of
substances in such quantity an/such character as
OTA
-2.
1
102
เ
thes
Ont
& Sandy
нестату
Le?
б
(Cap. 238).
as is hot
Luck 2(4).x
ally not say "arms?
was not include
jograph?
ايده
would be calculated to constitute a serious
threat to the lives of members of the community
Provided
if they fell into the possession of persons
prepared to use the same in the execution of
crimes of violence shall be guilty of an offence
against this regulation and shall on conviction
on inuictwent be punished with ueath;
that if upon any prosecution for an offence
against this regulation the Court is satisfied
in respect of each and every one of the arus,
ammunition and explosive subst.nces of which
the person chargeu has been proved to have been
in possession that he has no intention of using
the same vi renuitting the same to be used by
others the Court shall acquit ham of the offence
with which he is charged but may find him guilty
of and unish hia for any offence contrary to
the nas an unition Oruinance as nouified
by the ergency (Anas and unition Ordinance)
(amentuent) Regulations, 1952, of which it coule
lawfully fin. hau guilty on the avicence before
it.
(4) Such of the provisions of section
of the arus anu klynition Oruinence as are ine
consistent with the provisions of this regule tion shall be suspended
during the continuance
in force of this regulation: Frovided that
nothing in this paragraph contained shall apply
Y to cffences in res,cat of initation firlarus
in
respect firearms of which a person is in possession with lawful
authority,
(5) (a) In paragraph (1) carry" includes to carry on the person(or) in
any container or
receptacle and asportation by any weans;
COUNCIL CHABER,
1952.
3
1
(b) In paragraphs (2) and (3) of this
to witdale
15
regulation "use" includes intimidation by
means of but aces not include user for a low-
ful purpose,
(6) a prosecution for an offence against this regulation shall not be
instituted except
with the consent of the attorney General, "
Clerk of Councils,
103
Colonial Secretariat file No. 2/5011/46
SAVINGRAM
To the Secretary of State for the Colonies.
From the Governor, Hong Kong.
14237/18/1
Date.
115
No.
ند
H
AN OFFI06
Jamiary, 1952.....
22 JAN 1951
COL
1951.
Your savingram No. 1265 of the 11th December,
Faergency Regulations
The Emergency (Centrol of Ships and Aircraft) Regulations, 1949,
enacted as G.N.A. 225/49′was subsequently repealed by Regulation 16 of
the Emergency (Principal) Amendment Regulations, 1950 (G.N.A. 174/50).
Regulations 50 and 51 of the Emergency (Principal) Regulations, 1949,
are in terms identical with those of Regulations 6 and 4 ✓ of G.N.A.
223/49 and were brought into operation by G.N.A. 173/50 i.e. Emergency
Regulations (Commencement) (No. 2) Order, 1950.
www.
✓
2. The Emergency (Requisition) Regulations, 1949, enacted as G.N.A.
167/49 are still in force but some of its provisions are similar to
Regulations 2, 3, 67, 81, 151 and 136 of the Emergency (Principal)
Regulations, 1949. full position is as follows:-
Requisition
Remarks
The
Regulations
Principal Regulations
Regulation 2
2 & 3
3
66
4
5
..68
8 3
6
69
7
75
8
79
9
81
10
151
11
156
104
In force by G.N.A. 85/50 an G.N.A. 182/50
Not yet in force
In force by G.N.A. 61/51
Not yet in foros
Not yet in force
-do-
-do-
In force by G.N.A. 61/51 In force by G.N.A. 85/50
-do-
Sect. file No.2/3011/46.
No. 569
DEF 89/11/01
6
64453
GOVERNMENT HOUSE,
HONG KONG.
1st April, 1952.
84
Sir,
106332/6/1/16
I have the honour to refer to your Circular Savingram of 18th July,
1945, on the subject of energency legislation. A report on the general
position for the six months' period from 1st September 1951 to 29th
February 1952, is contained in the following paragraphs.
2.
With reference to the Bergency (Principal) Regulations, 1949,
(Government Notification No. A.277/49), regulation 99 has been brought
into operation by G.I.A. 196/51 and regulation 116 has been rescinded by
G.N.A. 26/52 (see below paragraph 3(g)).
3.
For the same period under review, certain Emergenoy Regulations have
been enacted under the Emergency Regulations Ordinance, 1922, viz.
(a) The Emergenov (Special Constabulary) (Amendment) Regulations, 1951,
(G.N.A. 164/51), and The Emergency (Special Constabulary) (Amendment)
(No. 2) Regulations, 1951, (G.N.A. 216/51).
By virtue of the Compulsory Service Ordinance, 1951, person subject to
compulsory service thereunder may be directed to enrol compulsorily in
the Royal Hong Kong Defence Force, the Special Constabulary or the
Essential Services Corps. The legislation relating to the Royal Hong
Kong Defence Force and the Essential Services Corps has been suitably
amended to provide for the enrolment, instruction and training of such
persons and the payment to them in respect of such training of an
instruction allowance. These regulations emend the principal regulations
to make similar provision in respect of the Special Constabulary. In
addition, new regulations have been added to the principal regulations
enabling members of the Special Constabulary to make complaint; and
making it an offence to obstruct any part of the Special Constabulary or
any of its members in the execution of their duty. The regulations also
provide that special constables may be called out for active service for
the purpose of instruction of training.
(b). The Emergency (Registration of British Subjects) (Amendment)
Regulations, 1951, (G.H.A. 195/51).
•
These regulations amend the principal regulations to provide for the
compulsory registration of British subjects upon arrival into the Colony
and to provide more comprehensively for registration by persons who have
not already registered and in particular for persons in the Colony who
have attained or may attain the age of 17 years since the 12th day of
January, 1951. The regulations also keep a check on British subjects
leaving the Colony by making it
necessary
1
THE RIGHT HONOURABLE
OLIVER LYTTELTON, D.S.O., H.C., M.P.
REGISTRAR'S OFFICE = 8 APR 1952 COLONIAL OFFICE
SPECIEL GUPE 1 MAY 1952 SECTOR
-
2
-
necessary for such persons to notify departure and for transport firms
or companies to supply lists of persons departing from the Colony.
(o) The Emergency (Control of Minerals) Regulations, 1951. (G.I.A.
209/51).
Owing to the great derand for strategic materials due to the prosent
international situation, profits to be made from the mining of wolfram
and ores of tin and lead have greatly increased.
In several areas in the New Territories, where there are deposito of
these ores, illegal mining has occurred. In consequence, not only has
Government boen deprived of substantial revenue by way of royalties but
the congregation of large nunbors of illegal miners and their families
on and around these areas without supervision or proper sanitation has
resulted in a grave threat to public order and to the health of the
Colory. Public health is further imperilled by reason of the fact that a
part of the waterworks catchment is within the area in which the illicit
mining is taken place.
The purpose of these regulations is to prevent illegal mining by making
it an offence for unauthorized persons to move, buy, sell or have in
their possession wolfram or the ores of load or tin,
(a) The Emergency (Immediate Resumption) Regulations, 1952, (G.N.A.
5/52),
and the Emergency (Immediate Resumption) (Amendment) Regulations, 1952,
(G.N.A.' 17/52).
This
In a recent fire at Tung Tau Village numerous persons were rendered
homeless. The purpose of these regulations is to enable as many of such
persons to be re-housed as rapidly as possible in circumstances which
will minimise, so far as compatible with the need for immediate action,
the danger of another fire and dangers to public health. has created a
situation in which it is considered desirable in the public interest
that sections 4 and 5 of the Crown Lands Resumption Ordinance, Cap. 124,
should be modified by the provisions of these regulations, This will
hasten resumption, and resettlement can then be effected under the
Emergency (Resettlement) Regulations, 1952, (G.N.A. 6/52).
(e) The Emergency (Resettlement Areas) Regulations, 1952. (G.N.A. 6/52).
These regulations enable the Urban Council to set aside any area of
Crown Land for the resettlement of persons who by reason of their
association with the Colony or otherwise merit assistance.
(f) The Emergency (Essential Supplies) Regulations, 1952. (G.N.A.
25/52).
The regulations provide for the issue by the Director of Commerce and
Industry of certificates (called Essential Supplies Certificates) to
importers certifying that evidence has been produced that certain goods,
the subject of embargo, which they wish to bring to Hong Kong are
required solely for use in Hong Kong. They also provide heavy penalties
for persons making false statements to obtain the issue of such
certificates or for the breach of any term or condition upon which they
are issued and for the forfeiture of goods in respect of which an
offence against the regulations has been committed.
(g)
1
3
1
86
{
(8) The Emergency (Arvas and Ammunition Ordinance) (Amendment)
Regulations,
1952, (G.I.A. 26/52).
These regulations increase the maximum penalty provided by section 29 of
the Arms and Ammunition Orlinance, (Cap. 238), for offences against that
Ordinance from imprisonment for 10 years to imprisonment for life. This
amendment rendered unnecessary the continuance in force of regulation
116 of the Emergency (Principal) Regulations, 1949, which imposed a
penalty of life imprisonment for offences of unlawful possession of arms
and ammunition, and accordingly rescinded it.
Requisitioning has again been carried out on a small scale; apart from
16 mits, comprising two blocks of new flats in the urban area, which
were requisitioned for the Royal Air Force, only 2 other imits have been
requisitioned, These were for the Army and comprised some land and one
unoccupied building in the New Territories.
No comments yet.
Private notes are available after approval.