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Chiu Tat Cheong And Others v Attorney General

Judgment Cited authorities 28 Cited in Precedent Map Related
Vincent
Judgment Date14 May 1991
Year1991
Judgement NumberCACV63/1991
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000063/1991 CHIU TAT CHEONG AND OTHERS v. ATTORNEY GENERAL

CACV000063/1991
Civil Appeal
No. 63 of 1991

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.

IN THE COURT OF APPEAL

1991, No. 63
(Civil)

BETWEEN

CHIU TAT CHEONG, DAVID CHIU TE KEN, DEACON AND OTHERS RESPONDENTS

AND
THE ATTORNEY GENERAL APPELLANT

-----------

Coram: Fuad, V.-P., Kempster & Clough, JJ.A.

Dates of hearing: 29 and 30 April; l, 2, 3, 6, 7, 8 and 9 May 1991

Date of Judgment: 14 May 1991

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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:

"Y. E.

The Magistrates (Amendment) Ordinance 1974, the purpose of which was to enable Y.E. to delegate to the Chief Justice your power to appoint magistrates, was passed by the Legislative Council on 30th January.

Y.E. is invited, by initialling the file, to delegate formally to C.J. your power under section 5 of the Magistrates Ordinance (Cap.227) to appoint permanent and special magistrates."

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:

"XVIA. (1) Subject to the provisions of this Article, a judge of the Supreme Court or a Judge of the District Court shall vacate his office when he attains the retiring age:

Provided that, notwithstanding that he has attained the retiring age, a person holding such an office may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age."

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:

"XIII. (1) The Governor, on Our behalf, may make and execute grants and dispositions of any lands within the Colony that may be lawfully granted or disposed of by Us.

(2) The powers conferred on the Governor by this Article may be exercised on behalf of the Governor by any person authorized, whether by name or by reference to an office, to exercise those powers by the Governor and such authorization shall be notified in the Hong Kong Government Gazette.

(3) Any such authority shall be subject to such conditions and restrictions (if any) as the Governor may specify, and may be varied or revoked by the Governor, and such conditions, restrictions, variation or revocation shall be notified in the Hong Kong Government Gazette.

(4) Grants and dispositions of land made under this Article shall be made in conformity with the provisions of such Instructions as may from time to time be given to the Governor under Our Royal Sign Manual and Signet or through a Secretary of State and such laws as may for the time being be in force in the Colony."

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...

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