CHIU TAT CHEONG AND OTHERS v. ATTORNEY GENERAL

Constitutional and administrative law - validity of appointment of a magistrate - proper approach to interpretation of constitutional instruments - whether Governor's power to appoint magistrates under article XIV of the Letters Patent is delegable - whether delegation of those powers as reflected in s.5 of the magistrates ordinance is lawful under s.63 of the Interpretation and General Clauses ordinance - whether delegation effectively made to the Chief Justice - whether such delegation was Wednesbury unreasonable - effect of enactment of the Judicial Service Commission Ordinance on existing delegation to the Chief Justice - observations on availability of habeas corpus remedy to persons on bail.

BETWEEN

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JUDGMENT

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Fuad, V.-P.:

Background

1. This appeal by the Attorney General concerns the validity of the appointment as a magistrate of Mr. Peter John Line who has been performing the functions of that office for the past three years.

2. Mr. Deacon Chiu and his son Mr. David Chiu had appeared before Mr. Line on 4 charges of conspiracy in relation to false accounting. Before Mr. Line could conduct the necessary committal proceedings, the Chius applied for a permanent stay of the hearing of the charges mainly on the grounds of delay causing prejudice. Mr. Line refused the application on 17th October 1990 and the Chius were remanded on bail. On 8th March 1991 Mr. Line refused an application made on their behalf to cease to exercise jurisdiction as a magistrate on the grounds that he had not been appointed validly to his office.

3. As a result of judicial review and parallel habeas corpus proceedings instituted by the Chius, the question whether Mr. Line had been appointed according to law was considered by Kaplan, J. at a hearing which took place between 18th - 22nd march 1991. The relief they sought as the proceedings before Kaplan, J.' had developed were -

(a)	An order in the habeas corpus proceedings that they were being unlawfully detained and for the removal of all restrictions including the terms of their bail;
(b)	An order of certiorari to quash all orders made by Mr. Line by way of that part of the Judicial Review proceedings which dealt with his appointment; and
(c)	A declaration in lieu of an injunction to the effect that Mr. Line's appointment was null, void and of no effect.

4. In his reserved judgment, delivered on 22nd April, the judge held that Mr. Line's appointment was invalid in law and, included in the relief he granted the Chius, was a declaration to that effect, as well as an order directing their unconditional release so that they are now free of any bail obligations.

5. It was common ground that Mr. Line was appointed, as all magistrates have been since March 1974, by the Chief Justice by warrant under seal. Notification of this appointment was made in the Gazette of 29th April 1988 by G.N. 1319, in these terms:

"Magistrates ordinance (Chapter 227)

APPOINTMENT OF PERMANENT MAGISTRATE

It is hereby notified that, in exercise of the power conferred by section 5 of the Magistrates Ordinance, the Chief Justice has appointed Mr. Peter John LINE to be a Permanent Magistrate with effect from 10 April 1988."

6. As to the authority of the Chief Justice to make the appointment, there was evidence before the judge that on 14th February 1974, the Governor of the day, Sir Murray (now Lord) MacLehose had initialled the following minute (which itself was dated 11th February 1974) in a Government file:

7. The evidence indicated that even after this delegation had been signified, until 1984, the Gazette Notices notifying the appointment of magistrates mentioned the Governor as the appointor although (since March 1974) in fact these appointments had been made by the Chief Justice.

8. I mention here that it appeared from the evidence that on 22nd October 1974 Sir Murray had delegated his power to appoint "Official" justices of the peace to the Colonial (now Chief) Secretary.

Some relevant constitutional and legislative provisions

9. Certain Articles of the Hong Kong Letters Patent 1917 to 1988 ("the Letters Patent") are relevant to the submissions addressed to the court below and to this court. The general power of the Governor to appoint Judges and other public officers is contained in Article XIV:

"XIV. The Governor may constitute and appoint such Judges, Justices of the Peace and other public officers as may be lawfully appointed, all of whom shall, unless otherwise provided by law, hold their offices during Our pleasure."

Before the Article took that form as a result of amendments which had effect from 5th February 1971, the Article had been drawn as follows:

"XIV. The Governor may constitute and appoint all such Judges, Commissioners, Justices of the Peace, and other necessary officers and Ministers in the Colony, as may lawfully be constituted or appointed by Us, all of whom, unless otherwise provided by law, shall hold their offices during Our pleasure." [It will be observed that the words emphasised were deleted as a result of the 1971 amendment and the word "public" was inserted before the word "officers".]”

10. The Governor's power to dismiss and suspend all public officers other than judges of the Supreme and District Courts is provided for in Article XVI:

"XVI.    Subject to the provisions of Article XVIA, the Governor may, subject to such instructions as may from time to time be given to him by Us through one of Our Principal secretaries of State, upon sufficient cause to him appearing, dismiss or suspend from the exercise of his office any person holding any public office within the Colony, or, subject as aforesaid, may take such other disciplinary action as may seem to him desirable."

11. The tenure of office of Judges of the Supreme Court and of the District Court is dealt with in Article XVIA, the first paragraph of which is in these terms:

Other paragraphs of that Article cover such matters, in relation to judges, as their retiring age; their resignation; and their removal from office.

12. The Respondents draw attention to, and support from, the fact that in relation to the disposal of lands, the Governor's powers can be exercised on his behalf by express provision; Article XIII provides:

13. It seems that Article XIII was amended as a direct result of the decision of the Full Court in Ho Po Sang v. Director of Public works [1959] HKLR 632, a case which must be read in the light of the fact that counsel for the Crown had conceded that there was no power in the Letters Patent or elsewhere for the Governor to delegate his power to "make and execute ... grants and dispositions" of land (see p.643 of Blair-Kerr, J.'s judgment.)

14. The Governor's general powers and authorities, and the constraints upon their exercise, are the subject of Article II:

"II.    We do hereby authorize, empower, and command Our said Governor and Commander-in-Chief (hereinafter called the Governor) to do and execute all things that belong to his said office, according to the tenour of these Our Letters Patent and of any Commission issued to him under Our Sign Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign Manual and Signet, or by Order in Our Privy Council, or by Us through one of Our Principal Secretaries of State, and to such laws as are now or shall hereafter be in force in the Colony."

15. Turning to the domestic statute book, s.6(1) of the Supreme Court Ordinance, Cap. 4, provides that a judge of the Supreme Court [other than deputy or acting judges] "shall be appointed by Letters Patent under the Public Seal by the Governor, in accordance with such instructions as the Governor may receive through a Secretary of State". By s.4(2) of the District Court Ordinance, Cap. 336, "District Judges shall be appointed by the Governor by instrument under the Public Seal."

16. As to the appointment of magistrates, the Magistrates Ordinance, Cap. 227, by s.5, makes provision as follows:

17. Before s.5 was amended in 1974 (this was the amendment referred to in the February 1974 minute) the words "under his hand" occurred between the words "warrant" and "from" in the first line of subsection (1).

18. Section 63 of the Interpretation and General Clauses Ordinance, Cap. 1, empowers the Governor to make delegations in these terms:

19. Section 63 (and every other provision in the Ordinance) is to be applied subject to s.2 which is in these terms:

The judge's account of the submissions made to him on behalf of the Chius

20. I now summarise the judge's review of the submissions put forward to him on behalf of the Chius by Mr. Desmond Keane, Q.C. (for the father) and by Mr. Denis Chang, Q.C. (for the son). Mr. Martin Lee, Q.C. appeared for the Attorney-General both in the lower court and before us. We have been addressed on behalf of Mr. David Chiu and Mr. Deacon Chiu by the same leading counsel who represented them before Kaplan, J. Submissions on behalf of Mr. David Chiu were also made to us by Mr. McCoy. Counsel for the Chius took a common stand on the principal issues and I hope they will forgive me if I do not identify the counsel by name who advanced a particular submission which I discuss in this judgment.

21. The fundamental contention was that the power to appoint magistrates had been entrusted by Article XIV of the Letters Patent to the Governor and to him alone. It was submitted that a magistrate came within that Article either as a Judge, or as a Justice of the Peace, or as a public officer. There was, it was pointed out, no express power of delegation as there was in Article XIII as the result of a 1960 amendment which followed the decision of the Full Court in Ho Po Sang v. Director of Public Works [1959] HKLR 632.

22. As to s.5 of the Magistrates Ordinance, it was argued that this was consistent with the Letters Patent in that it provided that the Governor was the appointor. All that the 1974 amendment had done (by deleting the words "under his hand") was to indicate that the Governor was no longer obliged to sign a warrant evidencing the appointment he had made. Only the Governor could form an opinion for the purposes of the expression "in his opinion" in s.5(1) and this opinion did not relate merely to the number of magistrates to be appointed.

23. Attention was drawn to the fact that in the Gazette Notice notifying Mr. Line's appointment, no mention had been made of s.63 of the Interpretation and General Clauses Ordinance. This was to be contrasted with, for example, G.N. 2966 which appeared in the Gazette of 9th September 1988, and notified the revocation of a magistrate's appointment. It read "... in exercise of the powers conferred by s.5 of the Magistrates Ordinance and delegated by s.63 of [Cap.1] the Chief Justice has revoked ... " For this reason and (a) because no instrument of delegation had ever been published and (b) there was no evidence of any communication of the power of appointment from the Governor to' the Chief Justice, it was said that the presumption of delegation pursuant to s.63 of Cap. 1 had been rebutted.

24. Counsel had accepted that it was both necessary and proper for the Governor to delegate certain of his functions to Heads of Department and to Secretaries but, it had been argued that this general power did not extend to the power to appoint judicial officers. Under Article XIV magistrates held their offices during Her Majesty's pleasure and no machinery or authority to revoke a magistrate's warrant had been provided although there was an oblique reference to revocation in s.5(5) of the Magistrates Ordinance. Unless Royal Instructions or another instrument of equal standing permitted it, the formation or signification of Her Majesty's pleasure could not be delegated beyond the Governor. The dismissal power was not delegable and the power of appointment was so intertwined with the power of dismissal as to render repugnant any local law which purported to delegate either of these powers.

25. Counsel for the Chius had also drawn support for their submissions from the Judicial Service Commission Ordinance, Cap. 92. They submitted that it imposed (by s.6) a duty on the Commission to advise the Governor, inter alia, "regarding the filling of judicial offices"; magistrates were included in this category. It was argued that these provisions confirmed, by necessary implication, that the appointor of magistrates was to be the Governor and also that the Chief Justice was to be an adviser of the Governor and not the appointor. The statutory requirement that the advice be directed to the Governor was not capable of delegation either as to the identity of the adviser (the Commission which included the Chief Justice as Chairman) or as to the identity of the recipient of the advice, the Governor. It had also been pointed out that the Governor retained the power to make judicial appointments contrary to the advice of the Commission or without reference to it; s.15(a) of the Ordinance provided that nothing enacted therein "shall derogate from any provision of the Letters Patent vesting in the Governor power of appointing judicial officers".

26. Counsel had posed the question how could the Chief Justice, if he were a delegate empowered to make appointments of magistrates, reasonably or lawfully be the recipient of advice from a body of which he was the Chairman? As such a delegate he would be able to reject the advice of the Commission and appoint a judicial officer whose appointment he alone had supported in the Commission. He would also have the Governor's powers to make appointments without any consultation with the Commission.

27. It had also been submitted that the "de facto officer doctrine" could not be prayed in aid in this case for a number of reasons including the proposition that the doctrine could not apply to a case such as the present if the authority of the tribunal was successfully challenged by a party to the proceedings during their course; any de facto colourable authority could not survive a finding of invalidity. It was capable of being prayed in aid only in respect of challenges to the validity of proceedings which had been concluded and the time for an appeal had expired.

28. Moreover, the contention had been advanced that the doctrine had no application in conditions of settled constitutional government. In such circumstances the orderly maintenance of the rule of law required that litigants (and in particular defendants in criminal cases) should not be tried by judicial officers not properly appointed. It had been suggested that even if the doctrine were applicable it would still not save the position because the defect in Mr. Line's appointment was not a hidden defect unknown to the public or to the respondents to the Chius' applications. The defect was patent because it appeared in the Gazette as an appointment by the Chief Justice rather than by the Governor.

The judge's principal conclusions and findings

29. The judge's principal conclusions and findings can be summarised as follows:

(1)	Magistrates were included in the expression "other public officers" in Article XIV of the Letters Patent, as was the whole civil service.
(2)	The words "in his opinion" which occur in s.5(1) of the Magistrates Ordinance related solely to the number of magistrates required for the efficient administration of justice.
(3)	As to the submission that the whole scheme of the Judicial Service Commission Ordinance, Cap. 92 was quite inconsistent with there being a lawful delegation by the Governor to the Chief Justice to appoint magistrates, this piece of local legislation enacted in 1974 could not be used to limit the ambit of Article XIV.
(4)	To apply the principle derived from Carltona v. Commissioner of works [1943] 2 All ER 560 ("the Carltona principle") to the facts of this case would be most inappropriate. It would entail equating the Chief Justice, an office ranking second only behind the Governor, with an official in a Government department. Such a conclusion would seriously erode the independence of the Judiciary. In any event the Carltona principle, as explained by the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Oladeninde [1990] 3 WLR 797, was limited to a situation where a statute placed a duty on a minister and that duty is carried out, in fact, by a member of that minister's department for whom he accepts responsibility. The doctrine was not available if a statute granted a power to minister A, but, in fact, the power was exercised by an official in the department of minister B for whom minister A would not be responsible. The power to appoint magistrates had either been lawfully delegated to the Chief Justice or it had not. If it had not, the lawfulness of the delegation could not be contended for under the Carltona principle.
(5)	The Governor's power to appoint public officers (including magistrates) under Article XIV could be sub-delegated and the Governor had in fact purported to sub-delegate his powers under s.5 of the Magistrates Ordinance by virtue of the 1974 minute.
(6)	The s.5 power to appoint magistrates was sub-delegable in law by virtue of s.63 of the Interpretation and General Clauses Ordinance. There was nothing in s.5 of the Magistrates Ordinance, or in the Judicial Service Commission Ordinance, which indicated a contrary intention so as to render s.63 of the Interpretation and General Clauses Ordinance inapplicable.
(7)	However, the purported sub-delegation under s.5 of the Magistrates Ordinance was not a sufficient sub-delegation in law of the Article XIV powers of the Governor. The February 1974 minute should not be construed as an effective sub-delegation of the Article XIV power to appoint magistrates.
(8)	There was not a shred of evidence that when the Governor signed the minute in February 1974 under s.5 of the Magistrates Ordinance, that anyone had applied his mind to Article XIV of the Letters Patent. The judge was satisfied that the Governor had intended to delegate his s.5 powers and he may have had the provisions of Cap. 1 well in mind. However, he (the judge) could not bring himself to conclude that it could be proper to deal with powers delegated by the Sovereign to the Governor in such d casual manner. It would have been simple for the Governor to have been asked to sub-delegate both the Article XIV powers and the s.5 powers. This was not done and he did not see why any court should be forced to speculate as to what the Governor had in mind at the relevant time. It might be said that, this was a very technical approach, but these were matters of high constitutional importance which deserved to be dealt with properly. It did not appear that the Governor had had his mind directed to the source of the power he was being asked to delegate, and the judge felt that he could not ignore such a lacuna.
(9)	Althougn no principle required a sub-delegation of this nature to be in writing, it was highly desirable for such matters to be recorded, for no one would know what had been done if both the donor and donee of the power were no longer available. It could not be in the public interest for such matters to be dealt with by a telephone call of at an unrecorded meeting. The donor of the power must also communicate that fact to the donee. There was no evidence, whatsoever, that the Chief Justice had ever been told that he was being asked to exercise the Governor's Article XIV power.
(10)	He rejected the submission that once one saw in the February 1974 minute, a clear intention by the Governor to sub-delegate, the general power to delegate under Article XIV had been exercised even though only the specific s.5 power had been referred to. The fallacy in this argument was that it involved answering the question "what is being delegated?" by the general answer, "the power to appoint magistrates", whereas in fact the answer should be "the power given to the Governor by the Sovereign under Article XIV of the Letters Patent of appointing one section of the class of public officers, namely magistrates". He found it difficult to see how the two answers were the same, as a matter of law.
(11)	It followed that whereas the Governor was able to delegate his powers of appointment in relation to magistrates under Article XIV of the Letters Patent, he had not, in fact, so delegated those powers to the Chief Justice. It must therefore follow that Mr. Line's appointment was invalid as having been made by the wrong person.
(12)	This, however, was not the end of the matter for he had to consider the submission that even if Mr. Line had not been properly appointed by reason of the lack of delegation, he should, for all other purposes, be treated as a magistrate under what had been termed the de facto judge principle or doctrine. On the case law and other sources he referred to and discussed, the judge accepted that the doctrine contended for existed, and was applicable in criminal cases as well as in civil cases.
(13)	As to the application of the rule that acts of de facto officers could not be collaterally impeached, since the Chius had not yet been committed for trial and would have to appear before Mr. Line from time to time, and since they were seeking judicial review of Mr. Line's decision not to grant a stay upon grounds which included an attack on his appointment, he (the judge) could not conclude that the attack was collateral so that it would be defeated by the de facto doctrine. Tempting though it [night be for any judge to apply the doctrine to preserve the status quo, he did not think that it would be right to do so on the facts of this case.

30. This is how the judge himself summarised his conclusions before he gave his reasons and before he addressed the "de facto judge" submission:

31. Pausing here for a moment, the stark effect of the judge's conclusions is that the appointment of a magistrate made by the Chief Justice in the exercise of powers clearly, and apparently lawfully, delegated to him by the Governor in accordance with statutory provisions enacted by the legislature of Hong Kong has been declared invalid. Some 60 magistrates, we are told, are in the same position and, if the judge was right, almost every magistrate who has taken his seat in court during the past 17 years was unlawfully appointed. The question that arises on this appeal is whether it has been demonstrated that the Governor and the Legislative Council, on the true construction of the constitutional instruments which bind them, have misunderstood and gone beyond their powers so that the judge's decision, with such disruptive results, was inescapable.

The proper approach to the interpretation of constitutional instruments

32. In accordance with former practice, now largely superseded, the powers of the Governor have been conferred by Letters Patent supplemented by Royal Instructions. These constituent instruments are effectually our constitution and it is necessary to remind ourselves of the proper approach to the interpretation of such instruments - in the instant case, only the Letters Patent fall to be construed and applied. As examples of the guidance given by the Privy Council I refer to Attorney-General for Ontario v. Attorney-General for Canada [1974] AC 127. At p.154 Lord Jowitt, L.C., had this to say:

"It is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the British North America Act. To such an organic statute the flexible interpretation must be given which changing circumstances require, and it would be alien to the spirit, with which the preamble to the Statute of Westminster is instinct, to concede anything less than the widest amplitude of power to the Dominion legislature under s.101 of the Act."

In Attorney-General of the Gambia v. Jobe [1984] AC 689, at p.700 Lord Diplock said this:

"A Constitution, and in particular that part of it which protests and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

In the context of fundamental rights provisions, Lord Diplock had, earlier, in Thornhill v. Attorney-General of Trinidad and Tobago [1981] AC 61, pointed out that constitutional provisions were not drafted with the particularity that would be appropriate to an ordinary Act of Parliament nor were they expressed in words which bore precise meanings and terms of legal art.

33. I would also cite this passage from the opinion of Lord Sankey, L.C. giving judgment for the Board in Henrietta Muir Edwards v. Attorney-General for Canada [1930] AC 124 at pp.136-137:

34. I have no doubt, therefore, that a generous and purposive construction must be put upon Article XIV and the rest of the Letters Patent; this is not to say, of course, that the ordinary canons of construction have no place in constitutional interpretation.

The powers of a colonial legislature

35. It is, I think essential to recognise the importance and effect of Article VII:

36. There are numerous authorities explaining the effect of such provisions. An example is Bribery Commissioner v. Ranasinghe [1905] AC 172, where Lord Pearce spoke of "the phrase habitually employed to denote the plenitude of the sovereigh legislative power, even though that power be ... within certain reservations."

37. Several of toe leading cases are referred to by Sir Denys Roberts, C.J., giving the judgment of this Court in Winfat Enterprises (H.K.) Co. Ltd. v. Attorney General [1984] HKLR 37, at pp.47 and 48, and he observed, at p.48:

"It therefore seems to be established beyond doubt that the phrase 'peace, order, and good government' is not ambiguous or uncertain in extent but merely so broad in scope that it has no boundaries, save those which are imposed upon it by the constitutional instruments of the territory itself or by Imperial enactments or Orders in Council which are applicable to the territory."

This decision was approved by the Privy Council: [1985] AC 733.

38. Moreover, the cases show that subject to qualifications of that kind, the power to make laws for the peace, order, and good government of a territory is to be regarded and construed, not as the power of a mere delegate but as plenary and sovereign within its limits (see, for example, Powell v. Appollo Candle Co. Ltd. (1885) 10 App Cas 282, where Lord Blackburn, giving the opinion of the Board, referred, at p.289, to two earlier Privy Council authorities, R. v. Burah (1878) 3 App Cas 889 and Hodge v. R.(1883) 9 App Cas 117 where this principle is emphasised).

39. I say all this because in my respectful opinion these crucial and well established principles appear to have been rather lost sight of as the case was developed before the judge. It seems to me quite impossible successfully to contend (and I do not understand counsel representing the respondents to this appeal to have attempted to do so) that either s.5 of the Magistrates Ordinance, or s.63 of the Interpretation and General Clauses Ordinance were beyond the legislative competence of the legislature of Hong Kong. Once this is recognised it will be appreciated how formidable was the hurdle the Chius had to surmount for the contentions made on their behalf properly to succeed.

The interrelationship between Article XIV and Caps. 4, 336 and 227

40. Article XIV of the Letters Patent does not say how the Judges, JP's and other public officers mentioned therein are to be appointed. It is therefore clearly to be expected, and right, that legislative provision should have been made to regulate such matters. I have made reference to the manner in which judges of the Supreme Court (s.6(1) of Cap. 4) and judges of the District court (s.4(2) of Cap. 336) are appointed. Section 5 of the Magistrates Ordinance falls into the same category. The same can be said for legislation, for example, relating to the appointment of certain ranks of police officers under the Police Force Ordinance, Cap. 232.

41. While such legislation must not be repugnant to Article XIV, it has to some extent superseded it in respect of relevant appointments, and has created a statutory scheme which binds the Governor while it is in force. I think that the following passages from the speeches of their Lordships in Attorney-General v. De Keyser's Royal Hotel [1920] AC 508 help to explain the true constitutional position; and, mutatis mutandis, the proper relationship between Article XIV and the legislation to which I have referred. At p.526, Lord Dunedin said:

"Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before the Act could be effected by the prerogative, and specially empowers the Crown to do the same thing, but subject to conditions, the Crown assents to that, and by, that Act, to the prerogative being curtailed."

Lord Atkinson had this to say at pp.539-40:

"It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions to, the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the Legislature (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is merged in the statute. I confess I do not think the word 'merged' is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same - namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been."

Lord Sumner's speech included the following passage at p.561:

"The appellant further contended that all that was done could be done, and was done, independently of any statute, by virtue of the Royal Prerogative alone. I do not think that, the precise extent of the prerogative need now be dealt with. The legislature, by appropriate enactment, can deal with such a subject matter as that now in question in such a way as to abate such portions of the prerogative as apply to it. It seems also to be obvious that enactments may have this effect, provided they directly deal with the subject matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative. If a statute merely recorded existing inherent powers, nothing would be gained by the enactment, for nothing would be added to the existing law. There is no object in dealing by statute with the same subject matter as is already dealt with by the prerogative, unless it be either to limit or at least to vary its exercise or to provide an additional mode of attaining the same object."

42. In Laker Airways Ltd. v. Department of Trade [1977] 1 QB 643 (CA) Roskill, L.J., as he then was, cited these passages at pp.719-721 when discussing the principles to be applied when the court has to determine whether prerogative power has been fettered by statute. He also cited from the speeches of Lord Moulton (at p.554) and of Lord Parmoor (at pp.575-576). I shall refer later to short passages from the latter's speech.

43. In Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, Lord Roskill, when agreeing with Lords Scarman and Diplock that a decision-making power was amenable to judicial review whether its source was in prerogative power (subject to some exceptions) or statutory power, pointed out, at p.417:

" ... In yet other cases, as the decisions show, the two powers may co-exist or the statutory power may by necessary implication have replaced the former prerogative."

44. Thus, for example, wholly unfettered though the power of the Governor to appoint judges was When an Article on the lines of the present Article XIV was first promulgated, he cannot in the present state of the statute book appoint someone to be a judge of the Supreme Court or of the District Court unless he or she is qualified to hold such an office by virtue, respectively, of s.9 of the Supreme Court Ordinance or of s.5 of the District Court Ordinance and, as we have seen, the manner of appointment is governed by s.6(1) of the former, and by s.4(2) of the latter, Ordinance.

Is the Article XIV power to appoint capable of delegation?

45. This seems to me to be a crucial, if not the decisive, issue in this appeal. Counsel for the Chius have argued strenuously that the powers given to the Governor under Article XIV must, in Hong Kong, be exercised by the Governor personally and may not be delegated. Where Letters Patent powers could lawfully be delegated, it was submitted, express power was given as in the amended Article XIII relating to grants etc. of land. Insofar as the business of government required, an officer could be authorised by the Governor, under the Carltona principle, to make an appointment covered by Article XIV in the Governor's name and on his behalf.

46. There can be no doubt that a power given to a particular authority by a constitutional instrument of the kind before us (or by a statute) is, prima facie, intended to be exercised only by the authority named. Where express language permitting the delegation in question is not to be found, a court will be slow to infer a power to delegate (particularly where express authority is given in the same instrument to delegate another power). However, the duty of the court is to extract the true meaning of a particular provision from the language used, and anything that is necessarily implied from the words used, having regard to the context, and construing the instrument as a whole, must be given effect to as if it were part of the provision.

47. The respondents to this appeal justifiably rely heavily on the effect of the amendment made to Article XIII as a result of the Ho Po Sang case - particularly in the light of the observations of Lord Bridge giving the judgment of the Judicial Committee in a recent case from Hong Kong, Commissioner of Inland Revenue v. Hang Seng Bank Ltd. [1990] 3 WLR 1120. There, by an amendment, a "deeming" provision had been inserted into the relevant statute. Lord Bridge, at p.1130 had this to say:

48. It is, perhaps, not too surprising that it should prove inevitable to need to supplement what is expressly provided in the Letters Patent by necessary implication in certain areas, when one appreciates that the whole instrument which, with the Royal Instructions, comprise the principal constitutional documents of this busy, populous and sophisticated territory, runs to only 9 pages. One has only to compare our Letters Patent with later Orders in Council etc. applying to other territories which are so detailed and comprehensive.

49. In my judgment it is not possible to read Article XIV (appointments) and Article XVI (dismissals etc.) without the necessary implication of a power to delegate because the Governor cannot possibly, personally, appoint and dismiss etc. the entire public service of Hong Kong, if he is to have time to do anything else. We understand that there are approximately 190,000 civil servants at present in Hong Kong.

50. This is a conclusion to which, in my respectful opinion, one is driven by compelling force, despite the express delegation provisions in Article XIII, inserted by amendment because, without them, no delegation of powers under that Article was apparently lawful.

51. There is strong support for the proposition that in this context powers can be implied, to be found, for example, in the decision of the Privy Council in Cameron v. Kyte (1835) 3 Knapp 343; 12 ER 678, one of a series of important cases which held that the Governor of a Colony, did not, by virtue of his appointment, have the sovereign authority delegated to him. An act done by him on his own authority, which was not authorized either by his Commission, or expressly or impliedly by any Instructions, was not equivalent to such an act being done by the Crown itself, and was consequently invalid. Mr. Baron Parke gave the judgment of the Board, and at p.683 of the ER report said this:

"... We are therefore of opinion that the Governor does not in the sense above mentioned represent the Sovereign, and has not the character of a delegate of all the Royal power. If, therefore, the Governor be an officer only with limited powers, which do not expressly include the Act in question [the Governor had issued a "notification" under his hand and seal], is such an Act authorized by implication? Implied powers may be given to an office as incident, either because they are necessary to its due execution, or because they are such as have been usually exercised by those who have borne it."

52. I do not accept that the necessity of implying the delegating power is obviated by the fact that resort can be had to the Carltona principle so that all appointments and dismissals which the Governor cannot effect personally, because of their volume, can be undertaken by persons he authorises by devolution so that they remain his acts in law. It seems to me unrealistic to expect that the Governor could effectively retain the responsibility for all appointments and dismissals in the entire civil service which the application of that principle requires unless it is to be a complete fiction.

53. If this conclusion is right, in my judgment it would be quite wrong for the courts to attempt, in effect, to dictate to the Governor in respect of which offices in Articles XIV and XVI he can and cannot delegate the power to appoint and dismiss. It is a matter for the political judgment of the Governor. It is not right to suggest that the courts could declare that the Governor may delegate the power to appoint, say, only public officers below a certain rank, or all public officers except judicial officers. It is not for the courts to draw such demarcation lines. I mention here that it seems to me that this would be an eminently suitable task, where appropriate, for the Governor, with the advice and consent of the Legislative Council, to undertake under Article VII if he is not exercising his powers directly under Article XIV.

Is the power to appoint under s.5 of the Magistrates Ordinance delegable?

54. Before I address this issue, I would observe that I accept the proposition that if the Governor cannot lawfully delegate his Article XIV powers in relation to the appointment of magistrates, he cannot do so under the authority of a local statute for any such provision would be repugnant to the Letters Patent.

55. In my view, the expression "in his opinion" which occurs in s.5(1) is no impediment in itself to a lawful delegation under s.63 of the Interpretation and General Clauses Ordinance. If the Governor employs that section and delegates the power to appoint under s.5(1) of the Magistrates Ordinance to someone else then, in the words of s.63(1) "[that] person shall have and may exercise such powers and perform such duties" and in doing so, it will be his opinion which is relevant and which has to be formed. I understand the expression "in his opinion" to do no more than indicate that a subjective judgment is involved in the duty of deciding what is "required for the efficient administration of justice" before the powers given by s.5(1) are exercised. In my view the case which was cited to us, Ratnagopal v. The Attorney General [1970] AC 974, is readily distinguishable. Much more helpful, in my view, is the Privy Council's decision in Mungoni v. A.-G. of Northern Rhodesia [1960] AC 336, a case not cited to us.

56. It is, of course, clear that s.63 of Cap. 1 is limited in its application to statutory powers and duties; it does not apply to powers and duties given and imposed by the Letters Patent but if it is lawful to delegate a particular power under the Letters Patent, in my judgment it is perfectly proper to delegate the same power reflected in a statutory provision which regulates the Letters Patent power.

57. The power of delegation given by s.63 of Cap. 1 is, it is true, very wide, but such provisions are by no means unknown in colonial legislation. It is entirely a matter for the legislature to decide if any limitations should be placed upon such a power. This could easily have been done by providing exceptions to the power of delegation in s.63 itself.  beyond the limitation already included in s.63(2) or, in relation to the matter before us, by making express provision in s.5 of the Magistrates Ordinance that the power of making appointments may not be delegated.

58. There is thus no express limitation upon the Governor's delegation power for which provision is made by s.63 of Cap. 1. Does any contrary intention appear from any Ordinance or instrument so that s.63 has no application to the Governor's power to appoint under s.5 of the Magistrates Ordinance, by virtue of s.2(1) of Cap. 1?

59. I have already dealt with the "in his opinion" point. As to the submission which depends on s.5(4) of the Magistrates Ordinance (which provides that a magistrate appointed under that section becomes a justice of the peace by virtue of his appointment) since, for the reasons I have given, I hold the opinion that the Governor's Article XIV power to appoint magistrates (as "public officers") can lawfully be delegated, I am not able to agree that upon the true construction of that Article the power to appoint justices of the peace cannot similarly be delegated.

60. Leaving aside for the moment the impact of the enactment of the Judicial Service Commission Ordinance, I am unable to discern any contrary intention which makes s.63 of Cap. 1 inapplicable to s.5 of the Magistrates Ordinance in any Ordinance or instrument.

61. It has been submitted that even if s.63 of Cap. 1 "were not entirely inapplicable" it was unlawful for the Governor to select the Chief Justice as the delegate of his power to appoint magistrates. His functions as Chairman of the Judicial Service Commission ("the JSC") are relied upon in this context too. It has also been contended that if it were possible for the Governor to delegate his appointing power, the delegation had to be to an officer within the executive branch of the Government, acting in the name and on behalf of the Governor (as examples, officers assisting in Government House and the Chief Secretary were mentioned). It was argued that such a delegation was subject to the restrictions and limitations pointed to in the Oladehinde case (mentioned in paragraph (4) of my summary of the judgment appealed against) particularly the requirement that the official should be under the supervision and control of the Governor, which the Chief Justice, for obvious constitutional reasons, could not be. It is also said that the Chief Justice is an inappropriate recipient of the Governor's delegation by reason of his jurisdiction under the Supreme Court Ordinance in relation to the executive.

62. I have no doubt that the Governor's power of delegation under s.63 of Cap. 1 is, in principle, subject to judicial review on grounds of Wednesbury unreasonableness. But the limits of judicial review must always be borne in mind. As Lord Brightman emphasised in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155, at p.1173:

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

63. The following passage from the speech of Lord Keith in R. v. Trade and Industry Secretary, EX parte Lonrho Plc. [1989] 1 WLR 525, at p.535 lays stress on the same point:

"The judgments of the Divisional Court illustrate the danger of judges wrongly though unconsciously substituting their own views for the views of the decision-maker who alone is charged and authorised by Parliament to exercise a discretion. The question is not whether the Secretary of State came to a correct solution or to a conclusion which meets with the approval of the Divisional Court but whether the discretion was properly exercised."

The impact of the Judicial Service Commission Ordinance

64. The submissions based upon the impact of the enactment of the Judicial Service Ordinance broadly were that after the Ordinance came into force on 20th February 1976, the Governor, when appointing magistrates, became obliged to comply with the provisions of the Ordinance insofar as they were not inconsistent with the Letters Patent and not to act inconsistently with them. The Governor was bound by the implied obligation to receive and consider the recommendations of the JSC, although he was not bound to act on any such recommendation. Moreover, it would be inconsistent with his obligations under Article II of the Letters Patent to comply with local law, simply to by-pass the Ordinance by purportedly delegating his powers to appoint magistrates to the Chief Justice who was himself the Chairman of the JSC.

65. It was argued that the Governor's statutory functions and duties to receive and consider the advice of the JSC under s.6(a) of the Ordinance were required to be performed by the Governor personally or they could only be exercised on the Governor's behalf on the Carltona principles which would not permit delegation to the Chief Justice. The contention was that unless those powers and functions were capable of delegation, and had been delegated to the Chief Justice, he could not lawfully appoint a magistrate. If the original delegation under s.63 of Cap. 1 had been lawful it must have been impliedly revoked by the enactment of the Ordinance. If not, it was contended, the purported exercise of the power by the Chief Justice at any time after the coming into force of the Ordinance was invalid as being inconsistent with his statutory duties under the Ordinance and under the Supreme Court Ordinance.

66. In my opinion these arguments depend upon the true construction of s.15 of the Judicial Service Commission Ordinance which is in these terms:

"15. Nothing in this Ordinance shall derogate from –

 

(a)	any provision of the Letters Patent vesting in the Governor the power of appointing judicial officers; or
(b)	any instructions given to the Governor by Her Majesty through the Secretary of State as to how such power should be exercised and in particular any instructions contained in Colonial Regulations."

67. In my judgment, properly construed, s.15 (a) makes it clear that the Ordinance does not in any way circumscribe the plenitude of the Governor's powers in Article XIV of the Letters Patent. In other words, the Governor's powers are to be regarded as if the Ordinance had not been passed - the Ordinance cannot be prayed in aid to render anything which was lawful before it was enacted, unlawful.

68. In so far as judges of the Supreme Court and of the District Court are concerned, we have seen that while the relevant Ordinances stand, the Governor, by virtue of Article II (and what is said in Article XIV itself) cannot appoint a judge who is not qualified in terms of the applicable statutory provisions, and he must make the appointment in the manner stipulated since there is no saving of the Governor's powers under Article XIV.

69. The Governor's Article XIV powers are completely unfettered and therefore free, too, from the requirement, express or implied, that he must seek, receive or heed advice from any source before he makes an appointment. In my view it is wrong to limit the effect of s.15(a) simply to the act of appointing (about which the rest of the Ordinance is silent) ignoring all that goes with the power vested in the Governor involving such matters as the choice of the person to be appointed and the advice he seeks or receives about a particular appointment. Nor do I think it right to read s.15(a) as if all it contained were effectively a proviso that the Governor was not bound to act upon any advice tendered to him under the Ordinance.

70. The Governor did not divest himself of his Article XIV powers at present regulated by s.5(1) of the Magistrates Ordinance by delegating them to the Chief Justice. He may continue to exercise those powers as he thinks fit; and when the delegate exercises them they are, in terms of s.63(1) of Cap. 1, exercised "on [the Governor's] behalf."

71. It is to be noted that a provision on almost identical lines to s.15(a) appears as s.15 of the Public Service Commission Ordinance, Cap. 93. There is a saving of a broadly similar kind in s.29 of the Royal Hong Kong Auxiliary Police Force Ordinance, Cap. 233. There is also a saving on these lines in s.38 of the Police Force Ordinance, which allows, by s.14, persons to be appointed to certain ranks in the force by the Commissioner. I think the same legal consequences follow from these differences. It is helpful to recall what Lord Parmoor said in the De Keyser's Royal Hotel case at p.576:

" ... I am further of opinion that where a matter has been directly regulated by statute there is a necessary implication that the statutory regulation must be obeyed, and that as far as such regulation is inconsistent with the claim of a Royal Prerogative right, such right can no longer be enforced.''

There can be no "necessary   implication" when the prerogative right is expressly reserved.

72. Speaking for myself, I see every advantage in continuing to use the machinery of the JSC when magistrates' appointments are under consideration, despite the fact that the Chief Justice is the appointing authority while the delegation remains in force.

73. It may be thought that the present situation is untidy and could usefully be reviewed, but I am not persuaded that it renders the Governor's delegation to the Chief Justice of his power to appoint magistrates either illegal or Wednesbury unreasonable. It is for the Governor to decide whether he wishes to maintain the delegation made in 1974 in the light of the formal establishment of the JSC, with the Chief Justice as its Chairman. And it is for the legislature to resolve whether an amendment to the JSC Ordinance is desirable to cover the situation where, in respect of any particular judicial office, the Chief Justice will be the appointing authority.

Was the delegation to the Chief Justice of the power to appoint magistrates "Wednesbury" unreasonable?

74. I will merely add here that I am quite unable to conclude that the delegation which has been attacked was Wednesoury unreasonable upon any general notion of inappropriateness. Questions of lawfulness apart, in the absence of a ministerial system, it would be a bold person (and he or she would not necessarily be right) who presumed to assert that the Governor's judgment in selecting the Chief Justice as the right person to appoint magistrates was flawed. It is not entirely irrelevant to note that the delegation, which has stood all these years, has not been directed to be withdrawn by Instructions which the Governor would have been bound to obey under Article II of the Letters Patent. I accept, of course, what was held in Cameron v. Kyte, at p.682 of the ER report that the non-objection on the part of the Crown, for example, to a proclamation issued by a Governor of a colony did not imply that the Governor had authority to make the proclamation, nor would the Crown's non-interference render the proclamation valid on the ground of acquiescence.

Are the judge's final conclusions sustainable?

75. I now turn to the learned judge's conclusions in paragraphs (7), (8), (9), (10) and (11) of my summary of his judgment. The Attorney General's Notice of Appeal is founded upon the proposition that in the light of the judge's conclusion that the Governor's power to appoint public officers (including magistrates) under Article XIV of the Letters Patent is "sub-delegable", as is his power under s.5 of the Magistrates Ordinance, he erred in law in holding that the Governor's February 1974 minute was an insufficient sub-delegation of his powers to the Chief Justice - and that the power to appoint had been delegated in a casual manner.

76. It is also asserted that the judge erred in law in holding that the Governor did not have his mind directed to the source of the power when he was asked to delegate, and in holding that the donor of the power so to appoint magistrates must communicate that fact to the donee.

77. It is also said that since (a) there was no inconsistency between Article XIV and s.5 of the Magistrates Ordinance, (b) it was common ground that the sub-delegation need not be in writing and (c) the intention to sub-delegate was clear, the judge had erred in law in rejecting the submission that once the Governor had evinced an intention to sub-delegate his power to appoint magistrates to the Chief Justice by his minute, it would not have mattered that the minute referred only to s.5 of the Magistrates Ordinance, omitting any reference to Article XIV of the Letters Patent.

78. I do not think that anything turns upon the question whether the words "under his hand" which were to be found in s.5(1) of the Magistrates Ordinance before the 1974 amendment, had the effect of preventing the Governor from delegating his powers under that section by way of s.63 of Cap. 1; nor upon the question whether the deletion of those words in fact removed any such impedient. What is clear, however, is that the draftsman of the minute which the Governor of the day initialled on 14th February 1974 thought that the answer to both those questions was "yes". For the reasons that he gave, the judge said that he did not see why the court should be forced to speculate as to what the Governor had in mind at the relevant time. With very great respect to the judge, it seems to me very clear what the Governor had in mind - that his power to appoint magistrates should henceforth be delegated to the Chief Justice.

79. Having regard to what was said in authorities such as De Keyser's Royal Hotel and the CCSU case cited above, it seems to me that once one of the Governor's Letters Patent powers has become reflected in and regulated by a local statute, and it is that power which is being delegated, then it is no longer the untrammelled power which is handed over, but the power as affected by the statutory provision - so that the appropriate "signpost" in the minute was indeed s.5 of the Magistrates Ordinance. Certainly the Article XIV powers and the s.5 powers were not two distinct powers, and this was common ground. Lord Parmoor's observations in the De Keyser's Royal Hotel case [1920] AC 508, at p.575 lends support to that approach:

"The constitutional principle is that when the power of the executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the executive no longer derives its authority from the Royal Prerogative of the Crown but from parliament, and that in exercising such authority the executive is bound to observe the restrictions which Parliament has imposed in favour of the subject."

80. However, be that as it may, since it was transparently obvious what power was being delegated it cannot, in my judgment, matter that a reference to Article XIV, if that were necessary, was omitted. I do not think that even complete silence as to the source of the power would have invalidated such a deliberate and unambiguous delegation.

81. I do not accept that the matter was dealt with in a "casual" manner by Lord MacLehose. The court was not being "forced to speculate"; there were no unresolvable uncertainties. As I have said, it was clear precisely what the Governor had in mind - to delegate to the Chief Justice the power given to him by the law in force in Hong Kong to appoint magistrates, (paragraph (8)), and the Chief Justice could hardly have been in any doubt about the nature of the power delegated to him (paragraph (9)). It will have been seen that I have found myself unable to subscribe to the judge's reasoning summarised in paragraph (10), which, I feel bound to say, had an air of unreality about it.

82. With very great respect to the judge, in my judgment, the conclusions summarised in paragraph (11), based on the tenuous reasoning in paragraphs (7) - (10) cannot be sustained. If Mr. Line's appointment was invalid, it was certainly not for those reasons. Leading counsel for the respondents barely sought to support the judge's reasoning, and what little was said about it lacked conviction.

The habeas corpus proceedings

83. These proceedings do not feature in the appeal but we wished to be assured that the habeas corpus remedy was properly applied for and granted. The Chius were remanded on bail by Mr. Line on 5th November 1990. Their bail was extended until 27th March 1991. In the meantime, on 7th December 1990 the Chius were given leave to apply for judicial review. On 11th March 1991 Nazareth, J. ordered writs of habeas corpus to be issued and served on Mr. Line and the sureties. Mr. Line was ordered "to have the applicant in the Supreme Court" ..."and to make a return to the writ". Mr. Line duly made returns to the writs before Kaplan, J. The invitation to address us on the matter was taken up by junior counsel for Mr. David Chiu who sought to justify the steps which had been taken.

84. When a person is on bail his freedom is certainly restricted to a certain degree, but counsel was not able to find a single example from any of the numerous jurisdictions (at federal or state level) which make up the Commonwealth, or, indeed, from any other common law jurisdiction, where habeas corpus had been issued in relation to a person on bail, a remedy which has been known to the common law since at least the 13th century.

85. If bail is withdrawn, the defendant will be taken into custody and his restraint can then be challenged. If a surety exercises his right to arrest the person for whom he has stood surety and surrenders him into custody so that he is exonerated from his bond, as soon as he is arrested the writ will be available, but as presently advised, even on the limited argument that has been addressed to us on the matter, I am very firmly inclined to the view that what happened here was entirely misconceived.

86. As to Mr. Line's position, I simply cannot understand what was expected of him. Was he to withdraw bail, direct the arrest of the defendants and have them brought before him so that he could "have their bodies before the High Court"? The point was made that when the applicant is on bail on his own recognizance from a magistrate's court, the only appropriate respondent to the writ would be the magistrate. This begs the question whether the writ is available and properly addressed to anyone in these circumstances.

87. Quite apart from all this, as noted in paragraph 54/1/1 of the Supreme Court Practice, in relation to RSC 0.54, r.1: "[the writ] is of right and granted ex debito justitiae, but not as of course ... and may be refused where another remedy lies whereby the validity of the restraint can be effectively questioned." The defendants were free (free in the real sense) to challenge the authority by which they were remanded on bail in more than one way without resort to the habeas corpus remedy.

Conclusion and proposed order

88. For the reasons I have attempted to give, I conclude that as a matter of law, Mr. Line's appointment as a magistrate was always valid. This makes it unnecessary for me to address the "de facto judge" doctrine.

89. I would allow the Attorney General's appeal and would set aside all the orders made by Kaplan, J. on 22nd April 1991, including the declaration he made on that day.

Kempster, J.A.:

90. The authority of the Governor of Hong Kong derives from the Crown and, unlike that of a viceroy, is confined to such prerogative powers as are entrusted to him by the Sovereign in the Letters Patent as supplemented by Royal Instructions. In availing himself of these powers he is exercising the authority of the Crown. Musgrave v. Pulido (1879) 5 App Cas 102 at p 111. Exiguous as they are the Letters Patent presently provide long Kong's constitution. After 1 July 1997 it will be found in the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China as promulgated on 4 April 1990.

91. It is common ground that no express provision for sub-delegation is made in Article XIV as it is in Article XIII and in a number of more recent and detailed constitutional Instruments such as that applicable to what was formerly British Guiana. Nonetheless, in 1917 and before, necessity would have given rise to such implication as regards "Judges, Justice of the Peace and other necessary" or "public officers" at the Governor's discretion; the change of wording in 1971 being no more material than that made in relation to section 5 of the Magistrates Ordinance in 1974. Cameron v. Kyte (1835) III Knapp 332 at p 345 per Baron parke when giving the advice of the Privy Council. I should add that a Colonial Governor is not to be equated with a minister in the United Kingdom Government and that there is no reason why the power to sub-delegate the exercise of a prerogative function should be limited in the manner described in Carltona v. Commissioners of Works (1943) 2 All ER 560 at p 563 and in Oladehinde v. Secretary of State for the Home Department [1990] 3 WLR 797 in the context of the devolution of statutory responsibilities to qualified officials of particular departments of State.

92. In England the relationship between prerogative and statutory powers applicable to the same subject matter has anxiously been considered by the House of Lords in Attorney General v. De Keyser's Royal Hotel [1920] AC 508 and by the English Court of Appeal in Laker Airways Ltd v. Department of Trade [1977] 1 QB 643. The effect of these authorities, as I humbly suggest, is that the material function is only exercisable pursuant or as if pursuant to the statutory power; the prerogative power in practice remaining in abeyance as, in the instant case, is made explicit by section 15 of the Judicial Service Ordinance. In Burma Oil Co Ltd v. Lord Advocate [1965] AC 75, where the House was concerned with the prerogative power alone, Lord Reid, at p 101, described that power as "really a relic of a past age, not lost by disuse, but only available for a case not covered by a statute."

What is more, Article XIV confines his powers to such "… public officers as may be lawfully appointed ... " while the words "peace, order and good government" in Article VII (1) "connote, in British constitutional language, the widest law making powers appropriate to a sovereign" per Viscount Radcliffe in Ibralebbe v. the Queen [1964] AC 900 at p 923, quoted by Lord Diplock in Winfat Ltd v. Attorney General [1985] AC 733 at p 747.

93. Section 5 of the Colonial Laws Validity Act 1865 is also material: -

"Every Colonial legislature shall have, and be  deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration therein ..."

94. I accept that the Hong Kong legislature is circumscribed in its powers insofar as it may not change its own constitution or powers (Chenard v. Arissol [1949] AC 127 at p 132) and insofar as, by section 2 of the same Act: -

"Any Colonial law which is or shall be repugnant to the provisions of any Act of Parliament extending to the Colony to which such law may relate ...shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."

No similar restriction is imposed in relation to the Royal Instructions. On the contrary section 4 reads: -

"No Colonial law passed with the concurrence of or assented to by the Governor of any Colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof which may have been given to such Governor by or on behalf of Her Majesty, by any Instrument other than the Letters Patent or Instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such Colony, even though such instructions may be referred to in such Letters patent or last-mentioned Instrument."

Thus, insofar as the Governor may have failed to comply with Royal Instruction XXVI-8 in relation to the prerogative powers delegated to him in the Letters Patent the validity of the material Ordinance will not be affected. That Royal Instruction directs the Governor not to assent in the name of Her Majesty to "any bill ... whereby Our prerogative ... may be prejudiced". It is to be observed, however, that section 4 would not apply to an instruction embodied in Letters Patent.

95. In addition to geographical restrictions and those imposed by section 2 of the Colonial Laws Validity Act` Article XX reserves to the Sovereign the power to revoke, alter, or amend the Letters Patent. Legislation may not lawfully be passed which would have such effect.

96. It follows that legislation which the Governor may enact by and with the advice and consent of the Legislative Council of which, by Article VI(1), he is a member can lawfully have the effect of abridging, curtailing, regulating and even duplicating the powers delegated to him under Article XIV. This pursuant to the prerogative powers entrusted to that body by Article VII(1). It cannot revoke, alter or amend Article XIV. Section 5 of the Magistrates Ordinance, enacted on 1 January 1933 under the authority of Article VII rather than of Article XIV, by the requirement for warrant invokes the right, in effect, to regulate given by the former as well as reflecting the authority to delegate the appointment of Justices of the Peace and magistrates inherent in the latter Article. There is no inconsistency. The qualifications for the appointment of Supreme Court and District Court judges required by the Supreme and District Court Ordinances also reflect the right, in effect, to regulate Article XIV. No provision in any primary or subsidiary legislation requiring qualifications for appointment as a magistrate has been drawn to our attention.

97. The authority for the Governor to delegate his powers of appointment of Justices of the Peace and of magistrates as well as his duty to form opinions, both conferred and imposed by section 5, derive from sections 2(1) and 63 (1) of the Interpretation and General Clauses Ordinance; no contrary intention then appearing in any Ordinance. Those sections have no direct application to Article XIV. It matters not that the minute of 11 February 1974 referred only to the effective source of the Governor's power to delegate and not also to the suspended power deriving from Article XIV; seen by Kaplan J as a fatal flaw.

98. Assuming the power to delegate the appointment of magistrates and ex-officio Justices of the Peace the Chief Justice was the obvious delegate. No question of Wednesbury unreasonableness could have arisen.

99. It has strongly been argued that the terms of the Judicial Service Commission Ordinance, enacted on 20 February 1976, did demonstrate a contrary intention and, as from that date, render the delegation to the Chief Justice both unreasonable and unlawful. How, it is asked, could the Commission be required to tender advice to the Governor about a magisterial vacancy under section 6 if it were contemplated that he might have delegated or might delegate his power of appointment to another? In particular why should the Chief Justice, as Chairman, be required to advise the Governor on appointments he was himself to make by reason of the delegation of 11 February 1974? Although a puzzling reference to the Chief Justice in section 9 suggests that the draftsman may have been aware of the delegation in question the overall structure of the Ordinance, requiring the provision of impartial advice to the Governor and none other, is singularly inapt in the circumstances and no less so because the Governor's delegated but suspended prerogative powers of appointment are expressly reserved. It cries out for amendment. Indeed, anyone also aware of the notices published in the Gazette after 1984 which revealed that magistrates were being appointed by the Chief Justice might well have thought the validity of such appointments open to question. But inconvenience and even absurdity in the particular application of this piece of legislation does not, in my view, suffice to demonstrate an intention on the part of the legislature to preclude the application of section 63 of the Interpretation and General Clauses Ordinance to the powers granted to the Governor by section 5 of the Magistrates Ordinance.

100. In the premises I also find that Mr Peter Line's appointment, as from 10 April 1988, was valid as having been made by the Chief Justice pursuant to a delegation lawfully made by the Governor pursuant to ordinance. No more than my Lord the Vice President do I propose to rule on the submissions made in relation to the "de facto judge" principle. I would allow this appeal accordingly and set aside all orders and the declaration made by Kaplan J on 22 April last.

Clough, J.A.:

101. I agree that this appeal should be allowed for the reasons given by my lord Fuad, which have my full support. He has dealt comprehensively with all the issues raised by this appeal. It is only because we are concerned with a grave constitutional matter that I add an expression of my own views on three substantial issues before us.

102. This question lies at the heart of this appeal. If the Governor's power under Article XIV of the Letters Patent is not impliedly delegable but is only excerisable by the Governor personally, then it seems to me that the legislative powers conferred on him, by and with the advice and consent of the Legislative Council, under Article VII may not be exercised to pass legislation purporting to enlarge his Article XIV powers by making them delegable. Although it is well settled that Article VII confers plenary powers on the Hong Kong Legislative Council (subject to certain reservations) one of the limitations imposed upon those powers is that they may not be exercised to effect amendments to the Letters Patent to which they owe their being. Thus Article II requires the Governor to perform his office inter alia "according to the tenour of these Our Letters Patent .... " and Article XX provides:

"XX. And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority, from time to time, to revoke, alter, or amend these Our Letters Patent as to Us or them shall seem meet."

103. It follows that if the Article XIV power is properly to be construed as conferring a purely personal and non delegable power upon the Governor then it can only be the Crown which has the relevant power, by virtue of the prerogative, to enlarge the Governor's power to appoint by amendment of Article XIV declaring that the Governor's, power is delegable: c.f. Rex v. To Lam Sin [1952]36 HKLR 1 at p.12 and Reg. v. Li Bun [1957] HKLR 89. This was the course  adopted in 1960 subsequent to the concession by Crown Counsel in Ho Po Sang v. The Director of Public Works [1959] HKLR 632 that the Governor's power under Article XIII to make and execute grants and dispositions of land was not delegable.

104. If, on the other hand, Article XIV is to be construed as, conferring a delegable power on the Governor, then any provision, express or implied, in an Ordinance enacted by the Governor in Legislative Council pursuant to Article VII (and assented to by the Governor under Article X) purporting to confer or regulate such a delegable power would not be repugnant to the Letters patent and would therefore be intra vires Article VII, not would the Governor be inhibited from assenting to such a provision as being within class 8 of clause XXVI of the Royal Instructions.

105. The Letters Patent, which (supplemented by: the Royal Instructions and other prerogative orders) constitute what Professor Wesley Smith has termed the "concrete" constitution of Hong Kong, contain provisions which retain a skeletal simplicity more appropriate to an under developed 19th century British colony. In the course of time, as most of the former British colonies developed they acquired far more elaborate constitutional instruments, and, ultimately detailed written constitutions dealing expressly with matters such as the delegation of executive powers. This development has been compendiously considered by Sir Kenneth Robers-Wray in his work on Commonwealth and Colonial Law. For historical and political reasons this constitutional development has not occurred in Hong Kong where the provisions of the Letters Patent remain very basic (notwithstanding a number of amendments since they were first passed in 1917) and now have to be applied to circumstances which may well not have been envisaged in 1917.

106. In the light of the dicta in the authorities cited by my lord Fuad illustrating the approach adopted by the privy Council when construing much more advanced constitutions of territories within its jurisdiction, this court should, in my opinion, construe the Hong Kong Letters patent in a purposive manner as an organic basic constitutional instrument which was intended to be fleshed out by local legislation and given the flexible interpretation which changing circumstances require. In this connection I would adopt the observation of the editors of Cross on Statutory Interpretation, 2nd edition, at pp.50-51, that :

"No one would suggest that a written constitution should be construed for all time as if the court were sitting the day after it was enacted, ..."

107. It may well be that in 1917 it would not have been necessary for the Governor to delegate any part of his power under Article XIV to appoint "Judges, Commissioners, Justices of the Peace, and other necessary officers and Ministers" in Hong Kong. At the present time, when the 1971 amendment to Article XIV operates, the power is expressed to extend to the appointment of "Judges, Justices of the Peace and other public officers". It is common ground that the circumstances in Hong Kong are such that the Governor cannot be expected to appoint all "public officers". There are too many of them. The immediate issue concerns the appointment of magistrates and justices of the peace.

108. Adopting the purposive approach indicated above and rejecting in the present circumstances the applicability of the Carltona principle (as the judge below and the other members of this court have done), I am unable to accept that Article XIV is properly to be construed as conferring on the Governor a bare personal power which he may not delegate even if delegation of part of his power should in his opinion become a practical necessity. Although Musgrave v. Pulido (1879) 5 App Cas. 102 (P.C.) and the cases therein cited establish that a governor is not in ordinary cases a viceroy and does not possess general sovereign power, the authorities recognise that, to the limited extent that sovereign authority is conferred upon him by his commission, it may include implied as well as express powers. Thus in Cameron v. Kyte 3 Knapp 332 the Privy Council held at p.345:

"Implied powers may be given to an office as incident, either because they are necessary to its due execution, or because they are such as have been usually exercised by those who have borne it."

109. In Musgrave v. Pulido the Privy Council described a governor's authority at p.111 in the following terms:

"His authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him. Let it be granted that, for acts of power done by a Governor under and within the limits of his commission, he is protected, because in doing them he is the servant of the Crown, and is exercising its sovereign authority; the like protection cannot be extended to acts which are wholly beyond the authority confided to him."

Thus the Governor's power to appoint under Article XIV is a "sovereign authority" which he exercises, not as a viceroy but as "the servant of the Crown". He has no authority to enlarge this power by amendment of the Letters Patent, Ordinance enacted under Article VII, or otherwise. There being no evidence of a previous practice of delegation the only possible basis for the existence of authority to delegate the exercise of the power must be implication arising from necessity for the due exercise of the Governor's office. Does the implication arise in the present circumstances?

110. I have found this a difficult question, particularly in view of the circumstances resulting in the amendment of Article XIII (to introduce an express power to delegate the power to grant land) which is rightly relied upon in support of the contention that the tenour of the Letters Patent is to confer personal non-delegable powers upon the Governor which can only be made delegable by amendment. However, construing the Letters Patent broadly and purposively as a constitutional and forward looking instrument I conclude that it must be within the spirit and intendment of Article XIV that the Governor should by that Article have been given a power which included, as a necessary incident to the due performance of his office, the authority to delegate the power where circumstances were considered by him to make this necessary.

111. In my opinion authority for some form of devolution must have been intended to be implied, for practical reasons. Although the Governor exercises this prerogative power as a servant of the Crown and not as a viceroy I do not consider that he can be equated with a minister of the Crown in England who exercises prerogative powers of the Crown (as distinct from statutory powers: see Reg. v. Secretary of State for the Home Department, EX parte Oladehinde [1990]2 WLR 1195 per Lord Donaldson at p.1215D) as the alter ego of the Crown under the Carltona principle. The Governor has legislative powers to exercise by and with the advice of the Legislative Council under Article VII of the Letters Patent and he assents to bills under Article X subject to the restrictions imposed by clause XXVI of the Royal Instructions. He summons and presides over the Executive Council pursuant to clauses VII and VIII of the Royal Instructions. He presides over the Legislative Council under clause XXI of the Royal Instructions. He does not have a portfolio or assume responsibility for government departments, nor is he answerable to the Legislative Council in the way that a Minister of the Crown is answerable to Parliament.

112. Accordingly, whilst I do not intend to be taken to be holding that the Governor can in no circumstances act through another person who is his instrument or alter ego, I nevertheless cannot accept that the Carltona principle, as recognised and applied in England, is applicable to the Governor's powers and duties under the Letters Patent. The systems of government are not the same. I apprehend that this explains why in the past it was common form in former colonial territories to include in the Interpretation and General Clauses Ordinance a general provision (which could be excluded expressly or impliedly in a particular Ordinance) authorising the Governor to delegate his executive (but not legislative or quasi judicial) powers and duties conferred under any Ordinance. Such a provision is not contained in the Interpretation Act 1978 and was not contained in the Interpretation Act 1889.

113. Although delegation involves the appointment of an agent by the holder of the power devolved by the delegation whereas the application of the Carltona principle does not (see Metropolitan Borough and Town Clerk of Lewisham v. Roberts [1949]2 KB 608 (C.A.), 621, 629 applied in Reg. v. Skinner [1968]2 QB 700 (C.A.), 707), the devolution by way of delegation which I regard as implicit in the Governor's Article XIV power does not involve his divesting himself of his power by assigning or transferring it to another. It merely involves, as any delegation generally does, authorising an agent to do what is in the power of the delegator to do and to continue to do after the delegation: c.f. Huth v. Clarke (1890)25 QBD 391. The authority to make such a delegation seems to me therefore to be one which is required to be implied as incident to the Governor's power to appoint conferred in such a very basic constitutional instrument as the Letters Patent which continue to operate paradoxically, for historical and political reasons, in a highly developed and populous territory.

114. Having determined (in agreement with the conclusion of Kaplan J. and the other members of this court) that the power to appoint conferred upon the Governor by Article XIV is delegable, and that section 63 of the Interpretation and General Clauses Ordinance (Cap. 1) applies to section 5 of the Magistrate's Ordinance, I turn, in deference to the decision of Kaplan J., with which we are differing, to the effect that the purported delegation by the Governor to the Chief Justice of his powers under section 5 was not "a sufficient sub-delegation in law of the powers of the Governor contained in article XIV."

115. The learned judge's decision on this question, which decided the case in favour of the respondents, did not appear to me to be directly supported by leading counsel for either of the respondents. This produced the result that the appeal was effectively that of the respondents who sought to persuade this court that the judge had erred on the other constitutional issues which he had determined in favour of the Attorney General.

116. The judge, who had reserved his decision, evidently felt some difficulty before giving his decision, regarding the absence of any evidence of a purported delegation (or sub-delegation) expressed to be made by reference to the Article XIV power. On the 25th March 1991 he sent a letter through his clerk to the parties' lawyers in which he sought assistance on this point in the following terms:

117. This court was informed by Mr. Keane Q.C. representing the second respondent that counsel had taken the opportunity of addressing the judge on this matter before he delivered judgment. Mr. Keane also informed this court that the judge seemed to be of the view that there were two powers in existence. However it was evidently common ground between the parties at this stage that there was only one power to appoint magistrates, namely the Article XIV power, which was regulated by section 5 of the Magistrates Ordinance, but Mr. Keane told this court that he had submitted to the judge that if it were held that there were two powers they would both have to be delegated.

118. I venture to think that if the judge had had the benefit of the citation of leading cases such as Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] AC 508, Burmah Oil Co. Ltd. v. Lord Advocate [1965] AC 75, Laker Airways Ltd. v. Department of Trade [1977] QB 643 (C.A.) and Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 he would have come to a different conclusion regarding the effect of the Governor's delegation under section 5 of the Magistrates' Ordinance made without reference to Article XIV. The dicta in these cases relating to the Crown's prerogative and to the effect of Acts of Parliament impinging upon any area which it occupies are expressed in different terms. This is understandable because, as Lord Reid observed in the Burmah Oil case at p.99D:

"         It is not easy to discover and decide the law regarding the royal prerogative and the consequences of its exercise. Apart from In re a Petition of Right [1915]3 KB 649 and Attorney-General v. De Keyser's Royal Hotel Ltd. [1920] AC 508, there have been no cases directly raising the matter for some centuries, and obiter dicta and the views of institutional writers and text writers are not always very helpful. The definition of Dicey (Law of the Constitution, 10th ed., p.424), always quoted with approval: 'The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown. 'does not take us very far. It is extremely difficult to be precise because in former times there was seldom a clear-cut view of the constitutional position. I think we should beware of looking at older authorities through modern spectacles. We ought not to ignore the many changes in constitutional law and theory which culminated in the Revolution Settlement of 1688-89, and there is practically no authority between that date and 1915. I am no historian but I would suppose that Maitland is as good a guide as any."

119. In Maitland's Constitutional History of England one of the most illuminating passages on the uncertainty regarding the limits of the royal prerogative occurs at p.418 when he comments:

"         We find that there is often great uncertainty as to the exact limits of the royal prerogative. Since the settlement of 1688 very little has been done towards depriving the king by any direct words of any of his legal powers. Those powers were great, and they were somewhat indefinite. Very seldom has any statute expressly taken them away, very seldom has any statute said in so many words 'it shall not be lawful for the King to do this'. But without directly destroying these prerogative powers statutes have created a large number of powers dealing with the same matters, some given to the king, some to one or to another of his great officers. Such modern powers have been definite and adapted to the wants of modern times, and they have been freely used. On the other hand the old prerogative powers have become clumsy and antiquated, and have fallen into disuse: the very uncertainty as to their limits has made then impracticable. Still they have not been expressly abolished, and to the legal student the question must often occur whether they are or are not in existence. Remember this, that we have no such doctrine as that a prerogative may cease to exist because it is not used. On the other hand we shall often find that it would be extremely difficult to use these prerogative powers without doing something definitely unlawful."

120. Maitland goes on to give examples, the first one is at p.419:

"         What an outcry there would be if the queen were to attempt to debase the coinage. Probably such an attempt would cost her her throne. Nevertheless Sir M. Hale was of opinion that the king had power to debase the coinage, and with the decided cases before us it is difficult to say that he was in the wrong. Even Blackstone was not certain that this power did not exist. Well, so far as I am aware, that power has never been expressly taken away by statue. We may say pretty confidently that the power does not exist, out why?  Not because it has been expressly taken away, not because it has fallen into desuetude, but because for a very long time past statutes have fixed the amount of gold and silver in the coins: thus by statute a sovereign is to weigh 123.27447 grains, and is to be eleven-twelfths gold and one-twelfth alloy. So long as such statutes exist the prerogative power of regulating the coinage cannot be used, but it is not until we have gone through those statutes and seen how they deal with the whole matter that we are entitled to say that the prerogative is superseded."

121. The dicta in the authorities cited earlier, whatever their precise terminology, make it clear that if an Act of Parliament deals with something within the ambit of the royal prerogative and empowers the Crown to do the same thing but subject to restrictions, then, while it is in force, the Act prevails and the prerogative, although not destroyed, is for the time being displaced, superseded abridged or supplanted. As Lord Dunedin observed in the De Keyser. case at p.526:

".... if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules."

To the citations in the judgments of the other members of this court I would add the following dictum of Lord Pearce at p.137D in the Burmah Oil case:

"         The prerogative is the residue of the power of sovereignty that has not been superseded or abridged or supplanted temporarily by the power of the King in Parliament. The law and Parliament have so altered and curtailed (and in parts confirmed) the various aspects of the prerogative that the whole subject is obscure and difficult. It would appear that when Parliament gives a power concurrent with that of the prerogative but subject to certain imposed limits, such as an obligation to pay compensation, the prerogative cannot then act without observing those limits; and if the statutory power were repealed, the prerogative power would apparently re-emerge as it existed before the statute (see the case of De Keyser's Royal Hotel [1920] AC 508."

122. The Governor is not the Crown, but the servant of the Crown. However, in my opinion, the Governor is clearly given authority by the Letters Patent to assent to an Ordinance which curtails the Article XIV prerogative power of the Crown conferred on him under the Letters Patent. Indeed this was common ground between the parties to the appeal. The power to appoint conferred by Article XIV is expressed to relate to "such Judges, Justices of the Peace and other public officers as may be lawfully appointed, ..." and under Article II the Governor is required to exercise his office inter alia "according .... to such laws as are now or shall hereafter be in force in the Colony The legislative powers conferred by Article VII are plenary and not subject to any restrictions which inhibit the regulation of the Governor's power to appoint under Article XIV.

123. Accordingly it seems to me that when, for example, the Governor assented to the Supreme Court Ordinance (Cap. 4), the District Court Ordinance (Cap. 336) and the Magistrates Ordinance, he lawfully assented to his Article XIV prerogative powers (derived from the Crown) being regulated or curtailed to the extent that any of those Ordinances contained provisions having that effect e.g. the provisions of section 9 of the Supreme Court Ordinance and section 5 of the District Court Ordinance which inhibit the Governor from appointing a person other than one having a stipulated professional qualification as a judge or district judge respectively. The Magistrates Ordinance contains no provision for the professional qualification of a magistrate, but section 5 regulates the manner of his appointment, which has to be "by warrant" and must be notified in the Gazette.

124. Section 5 of the Magistrates Ordinance is expressed (as, mutatis mutandis, are section 6(1) of the Supreme Court Ordinance and section 4(2) of the District Court Ordinance) to confer on the Governor a power to appoint a magistrate. In one sense it may be said that he cannot effectively be given, by Ordinance, a power which has already been conferred upon him by Article XIV, but, in my opinion, on final analysis (and adopting the terminology of Lord Pearce in his dictum in the Burmah Oil case cited above) the legislature of Hong Kong has lawfully conferred upon the Governor a statutory power which is concurrent with and confirmatory of the prerogative power conferred on him under Article XIV, but subject to the regulating provisions contained in section 5 of the Magistrates Ordinance which must be complied with if a valid appointment is to be made. In the absence of any express reservation of the unrestricted prerogative power it is thus the Ordinance which rules.

125. Therefore, it seems to me that when the Governor purported to delegate his powers under section 5 of the Magistrates Ordinance to the Chief Justice, he delegated his effective statutory power to appoint a magistrate, because the appointment could only be made in compliance with section 5 which was lawfully enacted and did therefore confer on the Governor a power to appoint which is concurrent with the Article XIV power. The latter power is for the time being lawfully displaced by the section power, although I do not doubt that if the Governor were to purport to exercise it, and to do so in a manner that in fact complied with the requirements of section 5, the appointment thus made would be valid.

126. For these reasons, in addition to those given by my Lord Fuad, I am unable to sustain the decision of the judge that the purported delegation (or sub-delegation) by the Governor under section 5 did not carry with it the power conferred under Article XIV.

127. If section 15(a) of the Judicial Service Commission Ordinance were required to be given a restricted meaning and the Ordinance made it mandatory for the Governor to receive advice from the Commission before a magistrate could be appointed, I would accept that there could be impressive arguments to support the contention that the appointment of Mr. Line by the Chief Justice was invalid. I was at first inclined to give section 15(a) a restricted meaning as being intended to be declaratory and by way of statutory reminder that although the Commission was required by section 6 to advise the Governor regarding the filling of vacancies in judicial offices, nevertheless the power to fill those vacancies remained with the Governor who was not obliged by the Ordinance to accept the Commission's advice or prevented from consulting such other sources as he thought fit.

128. However, as the argument developed, it seemed to me to be clear that not only was there no provision in the Ordinance obliging the Governor to act on the Commission's advice but (as in the case of section 15(a) of the Public Service Commission Ordinance (Cap. 93)) the terms of section 15(a) were too explicit to be given a restricted meaning. Mr. Keane sought to rely on the word "vesting", as contrasted with "as to how such power should be exercised" in section 15(b), to indicate that section 15(a) did not apply to the manner of exercise of the Governor's power to appoint but merely made it clear that the Governor was not obliged to accept the Commission's advice when given under section 6. In my opinion, the difference in the terminology of section 15(a) and (b) is explained by the fact that Article XIV in the Letters Patent in fact vests the power to make lawful appointments in the Governor whereas the instructions mentioned in section 15(b) can only relate to the manner of exercise of the power.

129. Section 15(a) provides that "Nothing" shall "derogate" from any provision of the Letters Patent vesting the power to appoint. This seems tome to manifest an intention to ensure that nothing in the Ordinance shall detract from or control what my Lord Fuad has called "the plenitude" of the Governor's power under Article XIV. I bear in mind that the power under Article XIV relates in terms to appointments which can be "lawfully" made and Article II requires that the power should be exercised inter alia "according ....to such laws as are now or shall hereafter be in force in the Colony." It is thus contemplated by the Letters Patent that local legislation might, as it has done, regulate the initial plenary power conferred by Article XIV, but equally it seems to me that the language of section 15(a) indicates the intention of the legislature to reserve that initial plenary power unimpaired save to the extent that it has been regulated by other legislation such as the Supreme Court, District Court and Magistrates Ordinances, which contain no similar reservation relating to the prerogative.

130. I have borne in mind the following observations of the Master of the Rolls (Sir C. Swinfen Eady) in the De Keyser case in the Court of Appeal ([1919]2 Ch 197, 216):

"         Those powers which the executive exercises without parliamentary authority are comprised under the comprehensive term of the prerogative. Where, however, Parliament has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the Crown could at its pleasure disregard them and fall back on the prerogative?"

In the House of Lords, in the same case, Lord Atkinson expressed the view at p.538 that this question was unanswerable.

131. However, the question was raised in connection with the effect on the prerogative of Acts of Parliament relating to the requisitioning of property required for the defence and security of the realm and providing machinery for the payment of compensation. The relevant legislation contained no express reservation of prerogative powers. In the present case the Ordinance does contain such a reservation and it confers no duty on the Governor to accept any advice given to him by the Commission. In the circumstances I agree with my lord Fuad that the effect of section 15(a) is to leave the plenitude of the Governor's power untouched by the Ordinance (see Bennion on Statutory Interpretation, at p.130) as if it had not been passed, and I agree that nothing in the Ordinance renders void or voidable the delegation of the Governor's power to the Chief Justice or the subsequent appointment of Mr. Line made by the Chief Justice by virtue of his delegated power.