Lau Chau Wah v. The Kingdom of the Netherlands

HCMP001619/1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon Ryan, J. in Court

Date of hearing: 13 June 1991

Date of delivery of judgment: 13 June 1991

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JUDGMENT

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1. On the 25th April 1991, His Excellency, the Governor of Hong Kong, Sir David Wilson, signed an order directing the Chief Magistrate of Hong Kong, Eastern Magistracy, Hong Kong to proceed in accordance with the Extradiction Act 1989 to hear and determine an application by the Consul General of the Netherlands for the extradiction of Lau Chau Wah also known as Cliff Lau.

2. I am asked by the applicant for a declaration that the Governor's order to proceed is invalid, void and of no effect. The applicant initially sought two other declarations but these are not now being pursued.

3. I am told that as a result of this application, the Governor has now signed a second order which is addressed to the Chief Magistrate or any other permanent magistrate which would seem to be an order in a better form. Nevertheless, the Crown oppose the application for the declaration that the order was invalid, and I am now required to give judgment in respect of that.

4. The applicant's argument is that the post of Chief Magistrate was abolished by the Abolition of the Office of the Chief Magistrates Ordinance No. 6 of 1862 and that the Governor's order has therefore been directed to an office which does not now exist in law.

5. There does exist within the administration of the Judiciary the posts which bear the titles Chief Magistrate and Principal Magistrate. These are not statutory appointments, but the posts are all held by persons who have been appointed as permanent magistrates. These appointments are made for administrative convenience to assist in the better operation of the work of the Judiciary and they are posts that are recognised in the judicial pay structure.

6. The position of Chief Magistrate is currently held by Mr Richard Hawkes. It is not disputed that Mr Hawkes was properly appointed by warrant as a permanent magistrate and that this appointment is still valid and of full effect. He has, pursuant to his warrant, power to hear and determine all matters which fall within the jurisdiction of a permanent magistrate and this includes the hearing and determining of extradition applications.

7. If the warrant appointing Mr Hawkes had purported to appoint him as Chief Magistrate, then of course, this application must succeed. But that is not the case.

8. The order was directed to the post which Mr Hawkes now holds within the administration of the Judiciary, namely Chief Magistrate, and he has, by virtue of his warrant, power to hear and determine the extradition application referred to in the order.

9. In my view provided the order is directed to an office held by a person who has the power to hear and determine the matter to which the order is directed, it matters not that the office is not one created by statute. The position would be the same, if the order had been directed to the Principal Magistrate, Eastern Court.

10. I am therefore satisfied that the order is in a valid form and the application is dismissed.

Representation:

Mr Bruce Mcnair, S.C.C., instructed by Kingdom of Netherlands for Respondent

Mr G.J.X. McCoy, instructed by Haldane Midgley & Booth, for Applicant