Re Case No. C. 4127 of 1973

Case No.HCMP 444/1973

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000444/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 444 OF 1973

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	In the matter of an application by the Attorney General of Hong Kong for leave to apply for an Order of Certiorari and an Order of Mandamus
	and
	In the matter of a consent issued under section 31 of the Prevention of Bribery Ordinance, Chapter 201, to the institution of a prosecution for an offence under section 3 of the aforesaid Ordinance
	and
	In the matter of a ruling by J. Baily, Esq. Magistrate in relation to Case No. C. 4127 of 1973 wherein a charge under section 3 of the Prevention of Bribery Ordinance, Chapter 201, had been preferred.

Coram: Briggs, C.J. Huggis & Pickering, JJ.

Date of Judgment: 14th January, 1974.

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DECISION

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1. This is a motion applying for an order of certiorari to remove into this court and to quash a ruling given by a magistrate in the case, No. C4127 of 1973: and for an order of mandamus directing the magistrate to try and determine the said case.

2. Case C. 1427 of 1973 concerns one LEUNG Pui Lam, an Assistant Officer in the Prisons Department of the Hong Kong Government who was charged with one offence of soliciting for an advantage contrary to section 3 of the Prevention of Bribery Ordinance. Section 31(1) of that Ordinance states that no prosecution for an offence under section 3 may be instituted without the consent of the Attorney General.

3. There was exhibited to the magistrate a consent to prosecute in the following terms:-

"In exercise of the powers vested in me by section 31 of the Prevention of Bribery Ordinance, by virtue of an authorization to me by Denys Tudor Emil Roberts, C.B.E. , Q.C. , Attorney General, under section 7 of the Legal Officers Ordinance, Chapter 87, I hereby consent to the institution of the prosecution of LEUNG Pui Lam for the following offence alleged to have been committed by him, contrary to section 3 of the Prevention of Bribery Ordinance - "

There then followed the particulars of the offence. The consent to prosecute was dated October 23rd, 1973, and was signed by "R.G. Penlington, Assistant to the Attorney General."

4. The magistrate himself took the point that this consent to prosecute was invalid. After hearing argument, he made a ruling to that effect. It is this ruling in respect of which the Attorney General is now asking for orders of certiorari and mandamus.

5. The authorization referred to in the consent to prosecute was dated February 28th, 1971. It is an authorization made under section 7 of the Legal Officers Ordinance and in accordance with that section authorizes "the person for the time being holding the office of Assistant to the Attorney General" to exercise the powers of the Attorney General under section 31(1) of the Prevention of Bribery Ordinance to consent to a prosecution for an offence under that Ordinance. The authorization also delegates other powers of the Attorney General. There is no doubt that at all material times Mr. Penlington held the office of Assistant to the Attorney General.

6. At the time of the signing of this authorization, Mr. Roberts was the Attorney General and he signed it. On October 5th, 1973, Mr. Roberts was appointed to the office of the Colonial Secretary and Mr. John Hobley became the Attorney General. The consent to prosecute was signed by Mr. Penlington on October 23rd, namely, after Mr. Roberts had ceased to be the Attorney General.

7. The short point is whether the authorization of the former Attorney General, Mr. Roberts, ceased to be effective as soon as he, Mr. Roberts ceased to hold the office of Attorney General. The magistrate held that it ceased with the office. In reaching this conclusion he relied exclusively on section 43 of the Interpretation and General Clauses Ordinance. Sub-section (1) reads as follows:-

"Where any Ordinance confers powers or imposes duties upon a specified public officer, such public officer may delegate any other public officer or the person for the time being holding any office designated by him to exercise such powers or perform such duties on his behalf, and thereupon, or from the date specified by such specified public officer, the person delegated shall have and may exercise such powers and perform such duties."

Sub-section (4) of section 43 reads as follows:-

"In this section 'specified public officer' means the person for the time being holding any public office which has been specified either generally or for the purposes of any particular Ordinance, under this section by the Governor by notice in the Gazette."

8. Section 43 is only concerned with "specified public officer" as defined in sub-section (4) of that section. The magistrate said that the office of Attorney General was included in the list of specified public officers, but it was not. It follows, therefore, that the ruling of the magistrate was not correct.

9. It is not strictly necessary to decide whether the ruling would have been wrong even if the Attorney General had been a specified public officer within the meaning of the section, but we have been asked to express a view upon the matter since it is of some general importance.

10. The question would then have arisen whether the Prevention of Bribery Ordinance was one which "confers powers ..... upon 'the person for the time being holding' 'the office of Attorney General'". What is in effect submitted is that s.43 (1) contemplates a case where a statute has given powers to an individual rather than to an official. The view adopted by the learned magistrate would imply that the power to delegate was conferred upon Mr. Roberts personally rather than upon Mr. Roberts as Attorney General for the time being. We think that may well be too narrow an interpretation and that it places too much emphasis on the word "person" in sub-section (4). We do not believe, as the magistrate thought, that the Legislature sought to attach importance to the personality of the holder of the office but rather the opposite, namely to ensure that there was no need to repeat a delegation when the person for the time being holding the office became an individual other than the individual who made the delegation.

11. The Solicitor General, who appeared on behalf of the Attorney General, quoted some dicta of Denning, L.J. in the case of The Metropolitan Borough and Town Clerk of Lewisham v. Roberts⁽¹⁾. That was a case which dealt with the power to requisition buildings which had been conferred on the Executive as a was time and post war time measure. In that case the Town Clerk requisitioned a house basing his authority to do so upon a letter he had received from an official in the Ministry of Health. The facts are different from the present case but a point made by Lord Justice Denning is that a delegation is not a legislative act and it is only an administrative act.

12. A government such as the Government of Hong Kong depends upon its smooth administration on the use of the power to delegate in very many instances. It is not the case that when one Governor of Hong Kong retires and another takes his place all the many delegations made under section 62 of the Interpretation and General Clauses Ordinance ipso facto lapse and must be made again. We think that the position is similar under section 43 of that Ordinance and under section 7 of the Legal Officers Ordinance also.

13. The orders applied for are to issue.

	Geoffrey Briggs
	C.J.

Representation:

G.C. Thornton, S.G. , Q.C. & Peter Nguyen, C.C. for Applicant.

Respondent in person.

(1) (1949) 2 K.B. 608 at 621.