R. v. WONG SAU CHUEN and Another

1993, No. 476
(Criminal)

H E A D N O T E

Appeals against conviction - Being member of crew of ship which entered Hong Kong with unauthorized entrants on board, contrary to s.37C (1) (a) of Immigration Ordinance - Prosecution requiring Governor's consent under s.23C of Crimes Ordinance - Governor himself did not give consent - Argument for appellants that want of Governor's personal consent rendered proceedings a nullity - Power to consent delegated - Appellant's argument that power not delegable rejected - Their further argument that even if power delegable this delegation unlawful also rejected - Appeals dismissed.

IN THE COURT OF APPEAL

1993, No. 476
(Criminal)

____________

_______________

J U D G M E N T

_______________

Bokhary JA:

INTRODUCTION

1. These are appeals against conviction. They turn on the lawfulness or otherwise of a certain act of delegation or purported delegation. Our decision on the point will affect not only the convictions in this case. It will also affect similar convictions of, we are told, many other persons in custody. So this case is a test case and an urgent one.

2. On May 11 this year, two boat-loads of unauthorized entrants from China clandestinely arrived in Hong Kong together. Each appellant, both Chinese nationals, steered one of those boats. They were caught by the police. And each was charged, in the same proceedings, with being a member of the crew of a ship which entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance, Cap.115.

3. That provision lays this down as part of our criminal law. Subject to the accused disproving knowledge of and reason to suspect the presence of any unauthorized entrant on board, "if a ship enters Hong Kong with an unauthorized entrant on board ... each member of the crew ... commits an offence and is liable ... on conviction on indictment to a fine of $5,000,000 and to imprisonment for life ...' and '... on summary conviction to a fine of $100,000 and to imprisonment for 3 years".

4. The appellants appeared before His Honour Judge Kilgour in the District Court on September 2 this year. At the time, they were not represented by Mr Dykes who now appears for them. No one involved in the case below thought of the point now advanced by Mr Dykes on their behalf. They pleaded guilty. And each was sentenced to three years and three months' imprisonment.

ARGUMENTS AND ANALYSIS

5. They now contend that their convictions, although based on guilty pleas, must be quashed.

6. Why must the convictions be quashed? Because, say the appellants, the proceedings in the court below are a nullity.

7. Why are the proceedings a nullity? Here, the appellants answer is in three parts.

Section 23C of the Crimes Ordinance. Cap.200

8. There is no controversy over the first part. It is quite simply that proceedings for the offence of which they were convicted are covered by subsection (2) of section 23C of the Crimes Ordinance, Cap.200, which section says that:-

"(1) Proceedings to which this section applies shall be instituted only with the consent in writing of the Governor who shall give such consent only if, in his opinion, their institution is expedient.

(2) This section applies to any proceedings for an indictable offence, other than piracy, which is alleged to have been committed -

(a) within the waters of Hong Kong;

(b) by a person who is not a British national; and

(c) on board, or by means of, a ship which is not a British ship.

(3) In this section 'British ship' includes a Hong Kong ship."

And it has been established that such proceedings are covered by that subsection. For this Court so held in R. v. Hui Lan Chak, Criminal Appeal No.287 of 1992, September 7, 1993, (unreported).

Power to consent delegated

9. Nor is there any controversy over the second part of the appellants' answer here. It is quite simply that the Governor has not given his consent, whether in writing or otherwise, to the proceedings against them. And the Crown has not suggested that the Governor has. What the Crown says is that the power to give such consent has been delegated and that the delegate has given such consent.

Delegation lawful or unlawful?

10. That brings us to the third and final part of the appellants' answer here. They say that the delegation is unlawful.

11. Is it? That is the question on which these appeals turn. If the delegation is unlawful, then the proceedings are indeed a nullity; and the appeals must be allowed so as to quash the convictions and set aside the sentences. But if the delegation is lawful, then the appeals must be dismissed.

One ground of appeal: nullity - three bases

12. The appellants' argument that the delegation is unlawful is put on three alternative bases. Those bases appear in the particulars to the single ground of appeal advanced, which ground itself reads:-

"That the District Court had no jurisdiction to try the Defendants for the offence of being members of the crew of a ship which had entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance because the authorization purportedly given by the Deputy Governor on 10th February 1993 pursuant to section 63 of the Interpretation and General Clauses Ordinance for certain legal officers to consent to prosecutions under section 23C of the Crimes Ordinance (and exercised as regards the Defendants by one M.A. Crabtree, a Senior Assistant Crown Prosecutor) was unlawful."

To say that the court below had no jurisdiction to try the appellants for the offence with which they were charged is just another way of saying that the proceedings below are a nullity for want of the consent necessary for their institution.

Instrument of delegation

13. The authorization referred to was gazetted in this form (at p.590 of Gazette No.6/1993):-

" AUTHORIZATION OF THE GOVERNOR

In exercise of the powers conferred on me by section 63 of the Interpretation and General Clauses Ordinance, I hereby authorize the Law Officer for the time being performing the duties of Crown Prosecutor, Principal Crown Counsel for the time being performing the duties of Deputy Crown Prosecutor and the Deputy Principal Crown Counsel for the time being performing the duties of Senior Assistant Crown Prosecutor in the Immigration Section of the Prosecutions Division and any person appointed to act in or perform the duties of any of the said offices for the time being, to exercise such powers of perform such duties which I am, by virtue of the following enactment, entitled to exercise or perform:-

Consent to Prosecute Section 23C of the Crimes Ordinance, Chapter 200.

10 February 1993

David FORD Deputy to the Governor"

 

That is the instrument of delegation here in question.

14. The appellants do not take any separate point on the fact that the authorization was given by the Deputy Governor rather than by the Governor himself. They accept that if (contrary to their argument) the Governor himself could give such authorisation, then the Deputy Governor could likewise do so.

Section 63 of the Interpretation and General Clauses Ordinance, Cap.1

15. Section 63 of the Interpretation and General Clauses Ordinance, Cap.1, which section the authorisation expressly invokes, provides that:-

"(1) Where any Ordinance confers powers or imposes duties upon the Governor, he may delegate any person by name or the person holding any office designated by him to exercise such powers or perform such duties on his behalf and thereupon, or from the date specified by the Governor, the person so delegated shall have and may exercise such powers and perform such duties.

(2) Without prejudice to the provisions of any Letters Patent or Royal Instructions relating to the appointment of a deputy to the Governor, nothing in subsection (1) shall authorize the Governor to delegate any person to make subsidiary legislation, issue proclamations or to determine any appeal.

(3) Where any Ordinance confers powers or imposes duties upon the Governor and such power is exercised or such duty is performed by any public officer, the Governor shall, unless the contrary is proved, be deemed to have delegated such public officer under subsection (1) to exercise the power or perform the duty."

Ground of appeal: first basis

16. Turning to the particulars to the ground of appeal, we see that the first basis on which the appellants advance that ground is that:-

"The discretion contained in section 23C of the Crimes Ordinance was non-delegable by virtue of the fact that the provision was enacted pursuant to legislative powers conferred on the Legislative Council by the Hong Kong Act 1985 and the Hong Kong (Legislative Powers) Order in Council 1986 intended to enable the Legislative Council to 'localize' the provisions of the Territorial Waters Jurisdiction Act 1878. The discretion given to the Governor of a Crown Colony at section 3 of the 1878 Act to grant leave to the institution of criminal proceedings against a foreigner for an indictable offence committed in territorial waters was non-delegable."

Second basis

17. The second basis is particularized thus:-

"In alternative to A, the delegation of the discretion contained in section 23C of the Crimes Ordinance was unlawful in that delegation to legal officers in the Attorney General's Chambers in inconsistent with the policy and objects of the Crimes Ordinance as amended by the Criminal Law (Amendment) Ordinance 1990 and may adversely affect decisions taken in the name of the Attorney General to institute criminal proceedings.

Particulars of Inconsistency

(i) Delegation to legal officers of a discretion requiring the consideration of foreign policy issues is inappropriate given that the Attorney General has no policy responsibilities in this area.

(ii) Delegation to legal officers of the discretion may inhibit the exercise of the general discretion vested in the Attorney General to institute or take over criminal proceedings in the public interest."

And third basis

18. And the third basis is particularized thus:-

"Delegation of the discretion to a legal officer ('the Deputy Principal Crown Counsel for the time being performing the duties of Senior Assistant Crown Prosecutor in the Immigration Section of the Prosecutions Division') is unlawful in that the delegate is not determined by the instrument of delegation but by the administrative practices and procedures of the Attorney General's Chambers. Selection by this process is inconsistent with the principle that the exercise of delegated power should be certain and entrusted only to a suitable delegate deliberately selected ('delectus personae')."

Delegate who consented

19. In the present case, the consents were given by Mrs M.A. Crabtree. She was, in the words of the authorization of February, 10, 1993, "the Deputy Principal Crown Counsel for the time being performing the duties of Senior Assistant Crown Prosecutor in the Immigration Section of the Prosecutions Division".

History of consent requirement

20. In developing his argument on section 23C of the Crimes Ordinance, Cap. 200, Mr Dykes took us through what might be viewed as the section's pedigree.

21. Mr Thomas who leads for the Crown before us describes section 23C as "free standing". And the submission which he goes on from there to make comes, it seems, to this. In law the section has no history, or at least no Imperial history, for the courts to consider.

Past shedding light on present

22. That does not seem to have been the approach adopted in R. v. Hui Lan Chak (supra). The judgment of the court in that case delivered by Macdougall VP (who sat with the Chief Justice and Barnett J) goes into the section's history in some detail. The circumstances of this case and of that one are rather special. They require us to consider the past. But - and this should be emphasised - the past is to be looked at only for the purpose of shedding light on the present, and not so as to obscure it in shadows case by the headstones of entombed provisions from another era.

R. v. Keyn

23. Looking at the past solely for the legitimate purpose which we have just identified, it is necessary to go back to the decision of the Court for Crown Cases Reserved in R. v. Keyn (1876) 2 Ex.D. 63. Keyn was the commander of the German ship Franconia which was on a voyage from Hamburg to St Thomas in the West Indies. Within three miles of Dover, she negligently ran into the British ship Strathclyde which was on a voyage from London to Bombay. As a result, the Strathclyde sank, and one of her passengers was drowned.

24. Keyn, a German national, was indicted for manslaughter. He was tried at the Central Criminal Court and was convicted. By a majority, the Court for Crown Cases Reserved quashed his conviction, holding that, in the absence of any enactment conferring such jurisdiction, the English courts had no jurisdiction over crimes committed by foreign nationals on board foreign ships in the British maritime belt.

Maritime belt

25. This is not the occasion to define the term "maritime belt". But, to make what we will be going on to say clear, we should at least characterize it. And we propose to do so by saying that it is so much of the sea itself (as opposed to the waters in ports, harbours, roadsteads and the mouths of rivers) as lies within, generally but not always, three miles of the low-water mark, such mark being determined by following either the sinuosities of the coast or its general direction plotted by straight base-lines drawn between appropriate points.

Territorial Waters Jurisdiction Act 1878

26. Two years after the decision in R. v. Keyn (supra), Parliament made provision for future cases of its kind by passing the Territorial Waters Jurisdiction Act 1878.

27. By section 2, the 1878 Act declared that:-

"An offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly."

28. Then, by section 3, the 1878 laid down these "consent" requirements:-

"Proceedings for the trial and punishment of a person who is not a subject of Her Majesty, and who is charged with any such offence as is declared by this Act to be within the jurisdiction of the Admiral, shall not he instituted in any court of the United Kingdom, except with the consent of one of Her Majesty's Principal Secretaries of State, and on his certificate that the institution of such proceedings is in his opinion expedient, and shall not be instituted in any of the dominions of Her Majesty out of the United Kingdom, except with the leave of the Governor of the part of the dominions in which such proceedings are proposed to be instituted, and on his certificate that it is expedient that such proceedings should be instituted."

Origins of section 23C

29. It is from within those consent requirements that one finds the origins of the consent requirement which, in this territory and at this time, exists in section 23C of the Crimes Ordinance, Cap.200. That section was added to that Ordinance three years ago by the Criminal Law (Amendment) Ordinance 1990.

30. The promoters of the 1990 Ordinance had announced that its function was "to localize the criminal jurisdiction of the Hong Kong courts in relation to crimes committed at sea and in certain places elsewhere". They so announced in the Explanatory Memorandum to the Criminal Law (Amendment) Bill 1990. And they also said in that Explanatory Memorandum that the "new section 23 ... derives from section 3 of the Territorial Waters Jurisdiction Act 1878."

Cesser

31. As to the 1878 Act, what the 1990 Ordinance did (in section 5) was to provide in effect that the Act shall cease to apply to prosecutions requiring the Governor's consent.

Hong Kong (Legislative Powers) Order 1986

32. The 1990 Ordinance was passed under the power conferred on the Legislature of Hong Kong by the Order in Council known as the Hong Kong (Legislative Powers) Order 1986. The 1986 Order came into operation on August 26, 1986. It provides (in paragraph 2) that:-

" The Governor of Hong Kong, by and with the advice and consent of the Legislative Council of Hong Kong, may, in addition to any other power conferred on the legislature of Hong Kong -

(a) repeal or amend any enactment so far as it is part of the law of Hong Kong;

(b) make laws having extra-territorial operation.

being an enactment or laws relating to -

(i) civil aviation,

(ii) merchant shipping,

(iii) admiralty jurisdiction."

Hong Kong Act 1985

33. It was pursuant to the Hong Kong Act 1985 that the 1986 Order was made. The 1985 Act was passed, as its long title tells us, "to make provision for and in connection with the ending of British sovereignty and jurisdiction over Hong Kong". And it provides (in paragraph 3(1)(b) of the Schedule thereto) that Her Majesty may by Order in Council make provision:-

"for enabling the legislature of Hong Kong to repeal or amend any enactment so far as it is part of [the law of Hong Kong] and to make laws having extra-territorial operation.

Section 63 or nothing

34. If the consent given by Mrs Crabtree in the present case is to be upheld, that has to be done on the basis that the delegation to her is covered by section 63 of the Interpretation and General Clauses Ordinance, Cap.1, which we quoted earlier. There are two reasons why it is Section 63 or nothing.

Carltona

35. The first is this. It is not suggested that the consent which Mrs Crabtree gave should be treated as that of the Governor himself. That could only be done by an extension of the Carltona principle to the circumstances of this case. The principle takes its name from the case of Carltona Ltd v. Works Commissioner [1943] 2 All ER 560. In that case the Court of Appeal in England held that where an official in a Minister's department performs functions entrusted to that Minister there is in law no delegation since constitutionally the official's act or decision is that of the Minister himself. But it is not suggested that what happened in the present case was of that nature.

Express

36. And the second is this. The power to delegate in section 63 is express. No express statutory provision for delegation apart from section 63 has been put forward as capable of covering the delegation here in question. The express power in section 63 leaves no room for a search for an implied power elsewhere. And express reference to section 63 is made in the authorization of February 10, 1993, and in the documents, one for each appellant, by which Mrs Crabtree signified her consent. So section 63 is the only candidate. If it fails, nothing passes.

Language alone

37. Looking at section 63, the first question is this. Does the delegation here in question appear, purely as a matter of language alone for the time being, to be covered by the wording of section 63? The appellants contend that the correct answer is "No".

Meaning of "office"

38. They so contend on the basis of their submission that "Deputy Principal Crown Counsel for the time being performing the duties of Senior Assistant Crown Prosecutor in the Immigration Section of the Prosecutions Division" is not an "office" within the meaning of section 63. We do not agree. In our view, it is indeed an office within the section's meaning. That is so whether one looks at it in terms of function or in terms of position. As to the former, the Shorter Oxford English Dictionary traces the root of the word "office" to the "performance of a task". And as to the latter, that dictionary gives "position to which certain duties are attached" as one of the meanings of the word. It is the legal office held by Mrs Crabtree, a legal officer.

Contrary intention?

39. Failing their "not an office" submission, the appellants seek to rely on section 2(1) of the Interpretation and General Clauses Ordinance, Cap.1. That subsection reads:-

"Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance."

40. Here, the appellants' argument runs along these lines. Even if the language employed by the Legislature in section 63 covers the Governor's power to give or withhold consent under section 23C of the Crimes Ordinance, Cap.200, so that there appears prima facie to be authority to delegate the power, nevertheless that is rebutted by the emergence, upon closer examination, of a contrary intention.

41. Making good that argument is something of an uphill task. For if legislators can do something and appear to have done it, one would not, in the normal way, be inclined to believe that they did not intend to do it and have not really done it after all.

42. Once the Governor's power to give or withhold consent ceased to reside in the Territorial Waters Jurisdiction Act 1878 and took up residence in the Crimes Ordinance, Cap.200, that power came within the ambit of section 63 of the Interpretation and General Clauses Ordinance, Cap.1. For, without any relevant expression of reservation or limitation, section 63 covers powers conferred and duties imposed on the Governor by Ordinance (as opposed to Imperial Statute). Its coming within the ambit of section 63 is the automatic consequence of the power becoming one conferred by Ordinance.

43. In R. v. Hui Lan Chak (supra) Macdougall VP spoke (at p.18) of the power being "transposed" from Act to Ordinance. Mr Thomas, possibly fearing that the use of that word carried excessive reliance on the past, respectfully questions such use. We are not inclined to read excessive reliance on the past into the use which the learned Vice President made of that word. And, in any event, we have already made clear the limits which we set on the purpose for which the past can be considered.

Consent power's importance

44. The appellants are of course right in saying that the giving or withholding of consent is of considerable importance.

Crown's prints include ...

45. Among the points which Mr Thomas takes in the course of confronting Mr Dykes's "contrary intention" argument are the two points to which we now turn.

First

46. The first is that the Territorial Waters Jurisdiction Act 1878 never applied to prosecutions under section 37C of the Immigration Ordinance, Cap.115, so that it was only upon the coming into force of section 23C of the Crimes Ordinance, Cap.200, that such prosecutions came to require the Governor's consent. That submission had been made by the Crown and rejected by the Court in R. v. Hui Lan Chak (supra) at pp.16-18. Mr Thomas respectfully questions the correctness of such rejection and invites us to reconsider it.

47. Such rejection is an integral part of the process of reasoning by which the Court reached its conclusion (which Mr Thomas has not invited us to reconsider) that section 37C prosecutions require section 23C consent, a conclusion in favour of the liberty of the individual.

48. Unless the rejection is per incuriam, it is not to be disturbed. Mr Thomas does not shrink from the suggestion that it is per incuriam. He points out that, as Cockburn CJ said in R. v. Keyn (supra) at p.160, the rule in that case was subject to the qualification that "if the legislature of a particular country should think fit by express enactment to render foreigners subject to its law with reference to offences committed beyond the limits of its territory, it would be incumbent on the Courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations". And Mr Thomas points out that such qualification is expressly included in the 1878 Act (by section 5 thereof).

49. So far so good. Then Mr Thomas moves on to submit that section 37C is an express enactment of the kind referred to by Cockburn CJ. We do not agree. It is not an enactment for the express purpose of making foreigners liable. It can (and sometimes does) catch Hong Kong people. That its wording can encompass foreigners carries the point no further. Of course its wording would encompass foreigners. Otherwise, no question of consenting to the prosecution of a foreigner would ever arise. For there could be no prosecution for which to give consent. So we reject the first point.

And second

50. The second point is that the Governor's power to give consent under section 3 of the 1878 Act was itself delegable. We do not think that it was. Such a power to delegate would have to be implied. The nature of the requirement does not sit comfortably with such an implication. And section 3's insistence upon a "certificate" tends to run counter to the notion that Parliament should be assumed to consider it acceptable that the consent power which it had set at the highest level be delegated down. So we reject the second point also.

Crown's strongest Point against contrary intention

51. But the two points which we have rejected are not Mr Thomas's only points. His strongest point against a contrary intention is, quite simply, the broad one that Mr Dykes has to make out a contrary intention and that, in all the circumstances, he has not managed to do so. We agree.

All the Governor's powers are prima facie delegable

52. All the functions of the Governor are, by definition, of considerable importance. And yet the prima facie position under our law is, as one sees from section 63, that all the Governor's comparable powers and duties are delegable.

Consent does not enlarge territorial jurisdiction

53. It must also be remembered that the giving or withholding of section 23C consent to prosecute does not demarcate the maritime belt to which criminal jurisdiction extends. Such consent goes only to whether it is in any given case expedient (in the non-pejorative sense) to institute a prosecution in the exercise of existing territorial jurisdiction. There is no question of enlarging territorial jurisdiction, only of whether or not to excercise it in an individual criminal case.

Section 23C does not require a certificate

54. In passing, we would note that, unlike section 3 of the 1878 Act, section 23C of the Crimes Ordinance, Cap.200, does not require a certificate even though it requires (not surprisingly) that any consent be in writing.

Governor's section 23C consent power is delegable

55. In our judgment, the Governor's consent power under section 23C of the Crimes Ordinance, Cap. 200, is delegable.

56. That disposes of the first basis on which the appellants seek to support their contention that the convictions must be quashed because the proceedings brought against them were a nullity.

This delegation lawful or unlawful?

57. The matters which arise under the other two bases go to the same question. That is the question which now arises. And it arises in this form. Although delegation is permissible, is the delegation which actually took place lawful or unlawful?

Like judicial review

58. In challenging the actual delegation, Mr Dykes has mounted the sort of attack normally encountered in judicial review proceedings. That is legitimate. Convicted persons who, like these appellants, have an avenue of criminal appeal ought - as this Court held in Re Tse Sun Mui, Civil Appeal No. 90 of 1993, July 17, 1993, (unreported) - to pursue that avenue. That is what these appellants are doing.

Unrestricted

59. The appellants are not restricted in the footing on which they may challenge the delegation which they impugn.

60. In R. v. Home Secretary, Ex p. Oladehinde [1990] 2 WLR 1195, (DC and CA); [1990] 3 WLR 797 (HL), the subject of the challenge was a Revolution of statutory power rather than a delegation of the same. The Home Secretary had authorized two immigration inspectors to act on his behalf in making decisions whether or not to delegation But what Lord Donaldson MR said (at pp 1213-1214) when the case was in the Court of Appeal holds as good for delegation as it does for Revolution.

61. Having cited Padfield v. Minister of Agriculture, Fisheries & Food [1968] AC 997 (which case calls for statutory powers to be exercised so as to promote the objects of the statute conferring them) the Master of the Rolls continued:-

" It is certainly true that the decision in Padfield was reached in a different context, but it would be a mistake to approach the judicial review jurisdiction as if it consisted of a series of entirely separate boxes into which judges dipped as occasion demanded. It is rather a rich tapestry of many strands, which cross, re-cross and blend to produce justice. Thus it would be unlawful, unconstitutional, irrational, Wednesbury unreasonable (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223) or plain wrong - the label really does not matter - to use the constitutional power to devolve the Secretary of State's decision making authority to a point or level which ran counter to the legislature's intentions in a particular field of government."

Possibly, that sounds somewhat intimidating to administrators, to whom it may make judicial review sound rather like a fearsome weapon with a multiple warhead. But, in truth, the Master of the Rolls was addressing lawyers, reminding them not to get bogged down in formalism.

Conflict, embarrassment and unsuitability of grading or experience

62. When Mr Oladehinde's case reached the House of Lords, Lord Griffiths gave valuable guidance when he said (at p.807) that:-

"The immigration service is comprised of Home Office civil servants for whom the Secretary of State is responsible and I can for myself see no reason why he should not authorise members of that service to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience.

The validity of those observations go beyond thee facts of that case and the Carltona principle. Without treating them as necessarily exhaustive, the identified evils of conflict, embarrassment and unsuitability of grading and experience are certainly ones to watch out for.

Internally

63. A point taken by Mr Dykes on suitability is (as one sees from the third basis) that the delegation which took place here involves leaving suitability to be determined by what happens within the Attorney General's Chambers internally. That, he submits, is objectionable.

Wrong place?

64. That point would not arise if Mr Dykes were to succeed on his wider point that the Attorney General's Chambers was the wrong place to go when looking for delegates of section 23C consent power. But if the wider point is wrong, so that it is permissible to look for delegates in those Chambers, then the narrower point would arise. It would, however, also fail. For if it is permissible to look for delegates in those Chambers, then it must likewise be permissible to trust the way in which legal officers are therein appointed to senior positions.

Practical realities

65. The law does not forbid such trust.

66. It is true that the delegates under the authorization of February 10, 1993, are not named in it. But they are "objectively identifiable". We borrow that expression from Steyn LJ's judgment in a delegation case decided by the Court of Appeal in England earlier this month, R. v. Law Society, ex parte Curtin, "Times", December 3, 1993.

67. In our view, the method of delegation in the present case is lawful. It was warranted by (borrowing another of Steyn LJ's expressions) "the practical realities of the exercise of the power to delegate". Mr Dykes had something to say on expediency (in the pejorative sense). It is wholly true that the law does not give way to expediency. And it is absolutely essential that the courts be vigilant to see that the law is never treated as if it can give way to expediency. That is not, however, to say that the law is impractical. Nor is it to say that the law is divorced from reality.

Not personal

68. If, contrary to his argument, the Attorney General's Chambers is not the wrong place to look, Mr Dykes does not suggest that Mrs Crabtree or any of the persons filling or likely to fill the offices named in the authorization of February 10, 1993, are nevertheless personally unsuitable delegates of section 23C consent power. In other words, he says that it is the wrong place. But he does not say that, even if it is not, they are still the wrong persons.

Political and diplomatic considerations

69. Essentially, the argument that the Attorney General's Chambers is the wrong place runs thus. Although the vast majority - 99.99 per cent is the figure which Mr Dykes used in argument - of prosecutions calling for section 23C consent would be prosecutions like that of these two appellants involving no real political or diplomatic sensitivity, there will be a small minority of cases in which such sensitivity will be present. And it should be someone other than a lawyer - Mr Dykes suggests that the Chief Secretary or the Political Adviser might be the right sort of person - who decides whether or not to give section 23C consent for a prosecution in such a case.

70. The snag in the argument is this. We are not here considering politics or diplomacy simpliciter. Rather, we are considering politics or diplomacy in the context of the administration of justice. Withholding section 23C consent and refusing to let the law take its course in a politically or diplomatically sensitive case can also have repercussions. It can have repercussions as serious, if not more serious, than giving consent and letting the law taking its course in such a case. The exercise is a balancing one. A senior lawyer, especially one with easy access to the views of colleagues and access to the views of public servants with other expertise, may well be as good a person as any to perform that exercise. It is quite impossible to say without more that the selection of such a delegate of section 23C consent power was a selection which no reasonable Governor would make.

Embarrassment or conflict

71. Is there more? Mr Dykes argues that there is. He points out that prosecutions which require section 23C consent can also require some other form of consent. Indeed, the prosecution of these two appellants required not only section 23C consent. It also required consent under section 37L of the Immigration Ordinance, Cap.115. That section is in the same Part as the section under which they were charged. And it reads: "No prosecution shall be brought under this Part without the consent of the Attorney General." As it happens, both the section 23C consent and the section 37L consent for the prosecution of these two appellants were given by Mrs Crabtree: as the Governor's delegate and the Attorney General's delegate respectively.

72. Mr Dykes submits that going to the Attorney General's Chambers for section 23C consent power delegates involves embarrassment and conflict or potential for the same. He suggested various possible permutations.

73. One was this. The Attorney General himself exercises section 37L consent power. At the same time, a member of his Chambers exercises section 23C consent power as the Governor's delegate. Mr Dykes argues that it would be embarrassing for that legal officer to withhold consent under section 23C if the Attorney General gives consent under section 37L. And Mr Dykes further argues that for him or her to do so would create conflict.

74. We reject the submission. Different considerations apply to the exercise of the two consent powers. The giving of one consent and the withholding of the other are not incompatible. There is no embarrassment or conflict to fear. And that is the answer to all of the permutations which Mr Dykes suggests or could suggest.

Two consents by the same person

75. Finally, Mr Dykes submits that it is objectionable that both consents here were given by the same person, Mrs Crabtree. We do not agree. It is only necessary that each question of consent be approached from a different angle. It is not necessary for them to be dealt with by different persons. And there is no reason to think that Mrs Crabtree failed to approach each question from the angle appropriate to it.

CONCLUSION

76. In the result, the delegation here is lawful. And all that was done pursuant to it is likewise lawful. These appeals must be dismissed. We dismiss them accordingly.