Chiu Tat-cheong, David and Others v. Habeas Corpus Ad Subjiciendum and Others

HCMP003601/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE MATTER OF CHIU

TAT-CHEONG, DAVID

and

IN THE MATTER OF an application for a writ of Habeas Corpus ad Subjiciendum

and

IN THE MATTER OF two applications by CHIU

TAT-CHEONG, DAVID for Judicial Review

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE MATTER OF CHIU TE-KEN,

DEACON

and

IN THE MATTER OF an application for a writ of Habeas Corpus ad Subjiciendum

and

IN THE MATTER OF two applications by CHIU TE-KEN,DEACON, for Judicial Review

__________

Coram : The Hon. Mr. Justice Kaplan in Court

Dates of Hearing : 18th-22nd March, 1991

Date of Delivery of Judgment : 22nd April, 1991

HEADNOTE

Constitutional Law - appointment of magistrate - whether Governor can delegate his power to appoint magistrates under Article XIV of Letters Patent to Chief Justice - whether he has effectively done so - Section 5 Magistrates Ordinance, Cap. 227 - Judicial Services Commission Ordinance, Cap. 92 - if no power to delegate is magistrate a 'de facto' magistrate.

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JUDGMENT

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1. I have before me applications for Writs of Habeas Corpus by Deacon Chiu and his son David Chiu made pursuant to leave granted by Nazareth, J. on 11th March 1991.

2. On 10th November 1988 Deacon Chiu, having been arrested, was brought before Central Magistracy on two charges of conspiracy to falsely account.  12 further charges were added later.  He was remanded on bail by Mr. Hill.

3. On 18th April 1990 Deacon Chiu was further remanded on bail by Mr. Peter Line on the same terms as earlier fixed by Mr. Hill.

4. On 10th February 1989 David Chiu having been arrested, was brought before Central Magistracy on a charge of conspiracy to falsely account.  Two further charges were added later.  He was remanded on bail by Miss Cannon.

5. On 18th April 1990 David Chiu was further remanded on bail by Mr. Peter Line on the same terms as earlier fixed by Miss Cannon.

6. Between 10th September 1990 and 17th October 1990, Mr. Line heard submissions on behalf of both Chius for a permanent stay of the hearing of the charges against them.  The basis of this application was substantial delay causing prejudice.  This involved questions relating to delay, loss of witnesses, ill health on the part of Deacon Chiu and a submission relating to the legality of acts done by the Independant Commission Against Corruption.

7. Mr. Line refused the Chiu's application for a permanent stay on 17th October 1990 and he gave his reasons.  On 5th November 1990, Mr. Line remanded both Chius on bail until 21st January 1991.  The latter date was vacated by consent and bail extended until 27th March 1991.

8. On 7th December 1990 David Chiu was given leave by Barnett, J. to apply for Judicial Review of Mr. Line's decision not to grant the permanent stay.  On the same day, Deacon Chiu was given like leave by Saied, J.  Both applications for Judicial Review were listed to commence before me on 14th March 1991.  Because leave to apply for writs of Habeas Corpus had been granted and because the point therein canvassed went to the very validity of Mr. Line's appointment I agreed to hear those applications first because if there was substance in that point it would, in effect, be dispositive of the Judicial Review proceedings.  Mr. Martin LEE, Q.C. for the Attorney General requested a short adjournment to prepare to deal with this new point which had only just been taken.  I therefore commenced hearing the argument relating to Mr. Line's appointment on 18th March.

9. The returns to the two Writs were read out in open court on 14th March.  In the case of Deacon Chiu, Mr. Line stated :-

"... in obedience to the Writ herewith do certify and return that Chiu Te Ken, Deacon is detained under and by virtue of my Order made in my letter dated 21st December 1990."

10. Dr. Hans Tang, Deacon Chiu's surety, returned that Deacon Chiu was detained in his custody by virtue of Mr. Line's Order in his letter dated 21st December 1990.

11. In David Chiu's case his surety, LAU Chi-ping returned in similar terms to Dr. Tang.  Mr. Line returned in the following terms;

"CHIU Tat-cheong, David, has his liberty to attend this Honourable Court.  He is present.  He remains on bail to appear at Eastern Magistracy by my order.

That Order is lawful by reason of;

(a)     my power under section 79 of The Magistrates Ordinance Cap. 227.

(b)the fact that I am a permanent Magistrate lawfully appointed by The Chief Justice of Hong Kong."

12. I should add that I also gave both Chius leave to amend their applications for Judicial Review to enable them to take, in those proceedings, the same point relating to Mr. Line's appointment.  I also agreed to deal with the relief sought on that ground if I was of the view that Mr. Line's appointment was invalid.  Both Mr. Keane, Q.C. for David Chiu and Mr. Chang, Q.C. for Deacon Chiu applied for leave under Order 53 to claim an injunction under section 21J of the Supreme Court Ordinance Cap. 4.  I granted such leave on the basis that both accepted that if successful, they would be content with a declaration in lieu of injunction.

13. I am therefore being asked to grant the following reliefs although the precise terms thereof are subject to my hearing counsel on the subject if I should find for the applicants;

1.       In the Habeas Corpus proceedings an order that the applicants are being unlawfully detained and for the removal of all restrictions including the terms of their bail;

2.       In that part of the Judicial Review proceedings dealing with Mr. Line's appointment an order of certiorari to quash all orders made by him; and

3.       In the Injunction proceedings a declaration in lieu of an injunction to the effect that Mr. Line's appointment is null, void and of no effect.

[I emphasise that this is an outline of the reliefs sought on which there will be further argument if I find for the applicants.]

14. At the end of the submissions, I also ordered a stay of the proceedings against both applicants under the provisions of Order 53 rule 3(10) RSC.  This was granted without objection by Mr. Lee in order to preserve the status quo until I delivered this judgment having agreed to do so on 22nd April.

Mr. Line's appointment

15. G.N. 1319 is in the following 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 10th April 1988."

16. It is this appointment by the Chief Justice that is the subject matter of complaint in these proceedings.  No complaint has been made against the qualification or suitability of Mr. Line.  Although there is no evidence on the point, I have no reason to suppose that Mr. Line was not approved by the Judicial Services Commission as a fit and proper person to be a Permanent Magistrate.  He has sat for nearly three years and has been accepted as a Permanent Magistrate by his colleagues, the profession and the general public.

The issues

17. The issues in this case are quite simply whether

(1)     Article XIV of the Letters Patent applies to the appointment of Permanent Magistrates;

(2)     If it does, can the Governor lawfully delegate the power of appointing Permanent Magistrates to the Chief Justice and has he done so; and

(3)     If it does not so permit, is Mr. Line nevertheless to be treated as a Permanent Magistrate under the 'de facto judge' principle?

18. A number of sub-issues have been raised and with some I must deal.  Matters of high constitutional importance have been raised involving, so it is said, the independence of the Judiciary and the rule of law.  Mr. Keane's two lists of authorities contained 42 items, Mr. Lee's 33 and a further 19 items were put in during the course of the hearing.  That makes a total of 94 cases articles and legislation.  I hope I will be forgiven for not referring to them all nor for detailing each and every submission made to me.  I propose to deal only with those submissions that go to the root of the matters before me.  Mr. Chang, Q.C. for Deacon Chiu, adopted Mr. Keane's submissions and added a few thoughts of his own.

The Letters Patent

19. The version of Article XIV of the Letters Patent in force at the time of Mr. Line's purported appointment states;

"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."

20. Amendments were made to Article XIV in 1971 and Mr. Lee provided a useful comparison in his written argument.  The word 'public' was inserted before officers and the words underlined were deleted;

"The Governor may constitute and appoint all such Judges, Commissioners, Justices of the peace, and other necessary (public) 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."

21. Article XVIA achieves judicial independence by providing for security of tenure for Supreme Court and District Court judges until retirement age unless extended.  Magistrates do not enjoy similar security of tenure.

22. Mr. Lee relies heavily on the change of language in Article XIV as being indicative of a clear intention expressed by the Sovereign that the Governor does have power to delegate appointments under Article XIV.

The Magistrates Ordinance Cap. 227

23. At the time of Mr. Line's appointment, section 5(1) of the Magistrates Ordinance provided as follows;

"5(1) The Governor may by warrant from time to time appoint such number of permanent and special magistrates as are in his opinion required for the efficient administration of justice in the colony and may in the case of special magistrates by such warrant limit the jurisdiction and power to be exercised by the person so appointed.  Such appointments together with the warrant of appointment where such warrant limits jurisdiction or powers to be exercised by the person appointed shall be notified in the gazette."

24. Sub-section (4) provides that "any magistrate appointed under this sub-section shall be a Justice of the Peace by virtue of his office."

25. In 1974, by Ordinance 3 of 1974, section 5 was amended by deleting the words 'under his hand after the word warrant'.

The basic facts

26. It appears from an affidavit of Donald Tsang, Director of Administration, that from a file kept under his custody the then Governor, Sir Murray MacLehose, purported to delegate his power to appoint magistrates to the Chief Justice on 14th February 1974.  Mr. Tsang exhibited a minute dated 11th February 1974 to the Governor which stated;

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

[This minute was prompted by the Magistrates (Amendment) Ordinance 1974]

27. Sir Murray MacLehose (as he then was) initalled the minute and inserted 14/2 under his initial.  [Mr. Keane attempted to argue that there was no sufficient evidence before me to identify the Governor's initial.  This submission was unreal given that Mr. Tsang provided the minute from a file in his lawful custody as Director of Administration of the Hong Kong Government.  Mr. Tsang further certified that the copy he exhibited was a correct copy.]

28. Mr. Julian Betts the Registrar of the Supreme Court, confirms in an affidavit that from a review of records in his custody as both Registrar of the Supreme Court and Secretary to the Judicial Services Commission since March 1974 all magistrates have been appointed by the Chief Justice by warrant under seal pursuant to the delegation from the Governor.

29. From a further affidavit of Mr. Tsang it appears that on 22nd October 1974 the Governor delegated to the then Colonial Secretary (now Chief Secretary) his power to appoint official Justices of the Peace.

30. In October 1988, Dr. David Clark of Hong Kong University published in the Hong Kong Law Journal an article which questioned the validity of the appointment of magistrates by the Chief Justice pursuant to the aforesaid delegation.  In this article, he mentions that he brought his views to the attention of the Legal Department.  In October 1989, both English language newspapers made reference to Dr. Clark's article in the Hong Kong Law Journal.  Dr. Clark had no knowledge of the February 1974 minute.

31. The first time that this point was raised in any legal proceedings was when in March 1991, 5 months after his ruling on the stay application a further application was made to Mr. Line in respect of his appointment.  Quite naturally he refused to accept that his appointment was invalid - hence these proceedings.  Mr. Keane went out of his way to emphasise that it was only Mr. Line's appointment that was being challenged and that the challenge itself only related to this particular case.  Orders made by Mr. Line in other cases are not affected by the relief sought in this case.  However, it would be unrealistic to suppose that a finding that Mr. Line was not properly appointed would not have far reaching consequences.  In deciding the issues before me I must of course have no regard to the consequences which an adverse decision might create.

32. In relation to Mr. Line s appointment referred to in Gazette Notice 1319, it will be noted that there is no reference to section 63 of Cap. 1.  That section provides that;

"Where any Ordinance confers powers or imposes duties upon the Governor he may delegate any person by name or the person holding any office designated by him to exercise such powers or perform such duties on his behalf ..."

33. However, I have been referred to another Gazette Notice in June 1988, involving a magistrate which expressly includes a reference to section 63 of Cap. 1.  Mr. Lee submits that as a matter of law there is no need to gazette the legal source of the power of appointment of a magistrate.  All that section 5 of the Magistrates Ordinance provides is that the fact of appointment shall be notified in the Gazette.

34. The position is thus as follows.  Since 1974, when the Governor purported to delegate this power to the Chief Justice, until 1984 the Gazette Notices referred to the Governor as the appointor whereas we know from Mr. Betts that, in fact, the Chief Justice has made all such appointments since 1974.  Since 1984 the Gazette Notices refer to the Chief Justice as appointor firstly without reference to section 63 of Cap. 1 and thereafter with such references.  Mr. Lee contends that the changes of practice make no difference to his submission that sub-delegation is lawful.  He goes on to submit that it was correct to refer to the Governor as being the appointor because the Chief Justice was making such appointments as his delegate or agent. He submits that as long as the appointment is gazetted, there is no need under section 5 of the Magistrates Ordinance even to publish the name or title of the appointor.

Does Article XIV of the Letters Patent apply to Magistrates?

35. Mr. Keane submitted that a magistrate was a judge alternatively a Justice of the Peace, and in any event a public officer.  In submitting that a magistrate was a judge, Mr. Keane referred to a magistrate as "a person authorised to exercise the functions of a judge of limited jurisdiction".  He emphasised that it is the function that is crucial and not the appellation. He took me through the history of magistrates in Hong Kong from earliest times.

36. It appears that there is no local legislation relating to the appointment of Justices of the Peace.  This is solely derived from Article XIV of the Letters Patent.  If only the Governor could appoint Justices of the Peace so the argument goes and a magistrate with greater power than a Justice of the Peace is ex officio a Justice of the Peace a fortiori a magistrate can only be so appointed.  This argument leads to the conclusion that the Governor s delegation to the Colonial Secretary in 1974 was also unlawful.

37. I find it impossible to read Article XIV in the way Mr. Keane submits.  I am not prepared to hold that a magistrate is a judge within the meaning of Article XIV. Nor am I prepared to hold that a magistrate is a Justice of the Peace within that Article, albeit that under the Magistrates Ordinance a magistrate is an ex officio Justice of the Peace.  I arrive at this conclusion after giving full consideration to the historical excursus from 1841 onwards along which both sides have taken me.  In essence, the term magistrate has been used in earlier versions of the Letters Patent, but never in Article XIV.  That is in my judgment a very strong indication that before 1971 magistrates were intended to be included in the expression other necessary officers and after 1971 included in the term other public officers.

38. If wrong about judges and Justices of the Peace Mr. Keane submitted that magistrates were public officers and with this submission Mr. Lee agreed.  However, Mr. Keane realised that if this is correct, then his argument could lead to the surprising conclusion that the Governor would have himself to appoint all public officers i.e. the whole civil service consisting of some 190 000 persons.  To avoid this conclusion, Mr. Keane submitted that the Governor would not have to appoint every public officer personally A difficult line would have to be drawn between officers and employees.  He submitted that public officers would include magistrates and other senior civil servants perhaps those being appointed to specific offices such as the Crown Solicicor the Crown Prosecutor or the Director of Administration to take but three examples.  Cap 1 defines public officer as any person holding an office of emolument under the Crown in right of the Government of Hong Kong.

39. Mr. Lee takes issue with this approach saying that chaos would ensue because there would be frequent challenges to the appointment of civil servants depending on which side of the line their office was found to fall.

40. In any event, Mr. Lee submitted that this point was covered by authority binding upon me.  In LAM Yuk ming & other v. A.G. [1980] HKLR 815 a division of the Court of Appeal consisting of Roberts C.J. McMullen, J. and Li J.A had to consider an action brought by 26 dispensers employed by the Hong Kong Government.  The trial judge (Cons J as he then was) dismissed their application for a declaration holding that under Article XVI of the Letters Patent the Governor had power to suspend them from office without pay.  The appeal was dismissed.  It is implicit in the judgment of the Court of Appeal given by Roberts C J that they were of the view that dispensers were public officers.  Mr. Chang who in that appeal appeared for the dispensers attempted to argue before me that the question whether or not the dispensers were public servants was not argued but was taken for granted.  I find this a difficult submission to accept given the terms of the detailed judgment of the court.  I am bound by this decision and it leads me to conclude that public officers include the whole civil service.

Is the power to appoint magistrates contained in Article XIV of the Letters Patent delegable?

41. Mr. Lee's submission was that if public officers included all of the civil service then this was a very strong indication, given the change of wording in Article XIV that it was not intended that the Governor would have to appoint each and every civil servant and could not delegate this power.

42. Mr. Lee hastened to point out that the appointment of judges of the Supreme Court is covered by section 6 of the Supreme Court Ordinance.  Chapter 4 which provides that they;

"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."

43. Section 4(2) of the District Court Ordinance Chapter 336 provides that;

"District Court judges shall be appointed by the Governor by instrument under the Public Seal."

44. So in the case of Supreme Court judges and District Court judges no question of delegation can arise.  They must be appointed by the Governor in the manner prescribed by law.

45. The appointment of magistrates is covered by section 5 of the Magistrates Ordinance which I have set out above and Article XIV.

46. Mr. Lee therefore submits that whereas there is no question of delegating the appointment of judges the position in relation to magistrates is the same as in respect of all other public officers and it would be absurd if the Governor could not delegate such appointments.

47. Mr. Keane emphasised rightly the very important functions that magistrates now carry out in Hong Kong and in fact, have always carried out.  He submitted that there was nothing in the change of wording in Article XIV that should lead me to conclude that after 1971 delegation in respect of the appointment of magistrates became permissible.  I should point out that Mr. Lee accepted that prior to the 1971 amendments such appointment could not be delegated.  So the change of wording is crucial, and what I have to decide is a point of construction of Article XIV read in the light of the rest of the 1971 version of the Letters Patent.

Article XIII of the Letters Patent

48. Mr. Keane relied very heavily on the history of Article XIII relating to Land Grants.  The 1950 version of Article XIII was in the following terms;

"The Governor in Our name and on Our behalf may make and execute, under the Public Seal of the Colony grants and dispositions of any lands which may be lawfully granted or disposed of by Us.  Provided that every such grant or disposition be made in conformity either with some law in force in the Colony or with some Instructions addressed to the Governor under Our Sigh Manual and Signet, or through one of Our Principal Secretaries of State or with some regulations in force in the Colony.

Nothing in this Article shall be construed as preventing the enactment of laws by the Legislature of the Colony regarding the making and execution of such grants and dispositions."

49. Article XIII was considered by a Full Court consisting of Blair Kerr J. and Mills Owens J. in HO Po sang v. Director of Public Works [1959] HKLR 632.  The Court "was of the opinion that an agreement for the renewal of a Crown Lease was a disposition of land within the meaning of Article XIII of the Letters Patent and that in the absence of enabling legislation it was not competent for the Director of Public Works to enter into such agreements on behalf of the Governor.  At pages 667 8 Mills Owens J. put the matter thus;

"The contention on behalf of the Director that the second respondent holds on the terms of the agreement implies that the execution of agreements for leases of Crown lands is a matter within the competence of the Director But whence is his authority derived in this respect in the absence of enabling legislation? The answer must be that he derives his authority from the Governor.  But here the Director is faced with two difficulties: first, the maxim delegatus non potest delegare and secondly, the proposition that the Letters Patent require the personal exercise by the Governor of the power to make grants and dispositions of Crown land, either as a matter of construction of Article XIII or on the ground that the provisions of the Article amount to a delegation of the Royal Prerogative in the matter of disposal of Crown land. Each is a formidable difficulty.  As to the first no argument has been advanced against the applicability of the maxim and it is not suggested that the matter of signature of such agreements is one which must necessarily in the interests of administrative convenience fall to be dealt with by officers subordinate to the Governor.  As to the second difficulty I would hold that the power conferred upon the Governor by Article XIII is one personal to his high office.  The disposal of Crown land in any territory of the Crown must be a matter of considerable consequence.  It may well be that the Governor is a delegate of the prerogative of the Crown in this respect.  Whether this be so or not, the Letters Patent have the force of law overriding local laws (vide Colonial Laws Validity Act 1865) and the obvious intention, in my view is that the power of disposal of Crown land is one to be exercised by the Governor personally in the absence of legislation enabling some other mode of disposition.  It is significant that in many territories the grant by officers other than the Governor of even such transient rights as temporary licences to occupy Crown land is the subject of specific enabling legislation."

50. Presumably as a direct result of this decision Article XIII was amended in 1960 so as to read as follows;

"XIII (1) The Governor in Our name and 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 confirmity 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."

51. Mr Keane's argument is quite simply that if it was intended that the Article XIV power of appointment should be delegated in respect of Magistrates then one would have expected clear words to that effect similar to those used in Article XIII (2) in respect of land grants.

52. Mr. Keane submits that section 5 of the Magistrates Ordinance is consistent with Article XIV of the Letters Patent.  It provides for appointment by the Governor and he does not accept that there is any significance in the deletion of the words under his hand after the word 'warrant'.  If section 5 does permit delegation, then Mr. Keane submits that this part of a local ordinance is in direct conflict with the Letters Patent and being subordinate thereto must be unlawful to that extent.

Mr. Keane further relies heavily on the words in his opinion in section 5 of the Magistrates Ordinance.  He submits that only the Governor can form this opinion and delegation of the power to form such opinion would be ultravires (Ratnagopal v. A.G. [1970] A.C. 974)

53. I am quite satisfied however that the words in his opinion relate solely to the number of magistrates required for the efficient administration of justice and thus these words do not assist Mr. Keane's argument.

54. As to section 63 of Cap. 1 Mr. Keane sidesteps this quite simply by saying that it only relates to powers or duties conferred by Ordinance and what is in issue here is whether there has been a delegation of powers pursuant to the Letters Patent.  In any event, he says that section 63 does not apply where a contrary intention appears from the contrary intention appears from the Letters Patent section 5 of the Magistrates Ordinance and the Judicial Services Commission Ordinance Cap. 92.

The Judicial Services Commission Ordinance Cap. 92

55. Mr. Keane submits that the continuation of the purported delegation to the Chief Justice after February 1974 when Cap. 92 was enacted would be inconsistent with the requirements imposed by that Ordinance.  The Chief Justice is the chairman of the Judicial Services Commission.  The Judicial Services Commission is charged with making recommendations to the Governor in respect, inter alia of the appointment of magistrates.  The Governor is not bound to accept such recommendation.  At the relevant time in 1988 the Judicial Services Commission had to be unanimous.  If the delegation to the Chief Justice in respect of magistrates was lawful one could says Mr. Keane have the unlikely but technically possible scenario of the Judicial Services Commission unanimously recommending A to the Governor and then the C.J. acting under the purported delegation from the Governor ignoring the recommendation to which he was a party and appointing instead X. Mr. Lee accepts that this is a theoretical possibility.  This says Mr. Keane, shows that the whole scheme of the Judicial Services Commission Ordinance is quite inconsistent with there being a lawful delegation from the Governor to the Chief Justice.

56. I can see this argument having some relevance to the appointment by the Chief Justice under section 5 of the Magistrates Ordinance when read with section 63 of Cap. 1, but I do not see how it helps on the construction of Article XIV of the Letters Patent, Cap. 92 was enacted subsequent to the 1971 amendments to Article XIV and I do not see how this later piece of local legislation can be used to limit the ambit of Article XIV. I should refer to section 15 of Cap. 92 which makes it clear that;

"Nothing in this Ordinance shall derogate from -

(a) any provisions 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"

General Principles

57. Sir William Wade at p. 357/8 of his book on Administrative Law deals with Delegation, thus;

"Inalienable discretionary power

An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else.  The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable.  Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents sub-committees or delegates however expressly authorised by the authority endowed with the power.

The maxim delegatus non potest delegare is sometimes invoked as if it embodied some general principle that made it legally impossible for statutory authority to be delegated.  In reality there is no such principle; and the maxim plays no real part in the decision of cases though it is sometimes used as a convenient label.  Its proper home is in the law of agency where it expresses the point that a principal who must accept liability for the acts of his agent need not accept it for the acts of his agent's agent; but even here there are wide exceptions.  In the case of statutory powers the important question is whether, on a true construction of the Act, it is intended that a power conferred upon A may be exercised on A's authority by B.  The maxim merely indicates that this is not normally allowable.  For this purpose no distinction need be drawn between delegation and agency.  Whichever term is employed, the question of the true intent of the Act remains.  It is true that the court will more readily approve the employment of another person to act as a mere agent than the wholesale delegation of the power itself.  But this is due not to any technical difference between agency and delegation but to the different degress of devolution which either term can cover.  The vital question in most cases is whether the statutory discretion remains in the hands of the proper authority or whether some other person purports to exercise it."

58. In relation to sub-delegation at p. 874 he states this;

"Sub-delegation

The general rule against sub-delegation of statutory powers, encountered once already, turns upon statutory construction.  If Parliament confers power under A the evident intention is that it shall be exercised by A and not by B.  But where power is conferred upon a minister it is (as we have seen) taken for granted that his officials may exercise it in his name, since that is the normal way in which executive business is done.  This is as true of legislative as of administrative powers.  Many ministerial regulations though made in the minister's name are validly signed by officials with or without the minister's official seal Delegation to some different authority is another matter.  In accordnance with general principle and with the few available authorities, it seems safe to presume that unless Parliament expresses or implies a dispensation legislative power must be exercised by those to whom it is given, and not by further delegates.  But this presumption is subject to circumstances and may be greatly weakened in time of emergency."

59. I do not think that the general principles are in doubt.  I have to be satisfied that the Article XIV power of appointment in respect of magistrates (whom I have found are included within the phrase public officers) is delegable and if so that the Governor has lawfully so delegated these powers to the Chief Justice.  Insofar as reliance has been placed upon section 5 of the Magistrates Ordinance.  I have to consider the relationship of the powers therein contained with the powers granted by the Sovereign to the Governor under Article XIV of the Letters Patent.

The Carltona Principle

60. This principle is derived from certain observations of Lord Greene. M.R in Carltona v. Commissioner of Works [1943] 2 AER 560 where at p 563 he said;

"It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter.  The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department.  Public business could not be carried on if that were not the case.  Constitutionally the decision of such an official is, of course, the decision of the minister.  The minister is responsible.  It is he who must answer before Parliament for anything that his officials have done under his authority ... "

61. The principle is not in reality one of delegation at all.  Legally the act of the official is the act of the minister.  There is no need for prior authorization or subsequent ratification by the minister.

62. To apply this principle to the facts of this case would, in my judgment, be most inappropriate.  It would entail equating the Chief Justice of Hong Kong, 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 which is at the core of the rule of law to which we, in Hong Kong are so clearly committed.

63. In any event I am satisfied that the Carltona principle as explained recently by the House of Lords in R. v. Secretary of State for the Home Department ex parte Oladehinde [1990] 3 WLR 797 is limited to a situation where a statute places a duty on a minister and that duty is carried out, in fact by a member of that minister's department for whom that minister accepts responsibility.  That case involved immigration issues.  The doctrine would not appear to be 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.

64. In my judgment, the power to appoint magistrates has either been lawfully delegated to the Chief Justice or it has not.  If it has not the delegation cannot be contended for under the Carltona principle.  The argument to the contrary contended for by Mr. Lee must have made M. Montesquieu turn in his grave.

65. In paragraph 57 of his written submissions, Mr. Lee said that if the Carltona principle did not apply to this case;

".. then the Governor can never delegate any of his multifarious powers or functions to anyone.  And the result is plainly absurd."

66. This submission completely overlooks the effect of section 63 of Cap. 1 and the possibility where required (as in the case of Article XIII) of amending the Letters Patent. Many Ordinances confer powers and outies on the Governor which no one expects him to exercise himself hence section 63 of Cap 1.  All that I am deciding is that as between Governor and Chief Justice in relation to the appointment of magistrates, the Carltona principle can have no application whatsoever.

The Dilemma

67. It is common ground that the Governor has only once purported to delegate his power to appoint magistrates and this is evidenced by the minute I have referred to dated 14th February 1974.

68. It is common ground that this 1974 delegation is expressed solely in terms of section 5 of the Magistrates Ordinance.

69. It is common ground that there has been no separate delegation under Article XIV of the Letters Patent.

70. How then can a delegation under Article XIV of the Letters Patent be relied upon?

71. Mr. Lee submits that the Governor's power of appointment of magistrates under Article XIV need not be a written delegation (or sub-delegation, as Mr. Keane prefers to call it) and he further submits that such delegation need not be gazetted.

72. Mr. Lee submits that assuming the Governor has the power to delegate under section 5 of the Magistrates Ordinance and assuming that the Article XIV powers are also delegable we are in the position of having parallel powers of appointment firstly under Article XIV and secondly under section 5 of the Magistrates Ordinance when read with section 63 of Cap. 1.  These two powers are consistent with each other so submits Mr. Lee.

73. Mr. Lee goes on to submit that when the Governor exercised his power to delegate in 1974, it did not then and does not now matter in the slightest that Article XIV was not referred to expressly Mr. Lee made four points which I extract from part of his written argument;

"(1)The section 5 statutory power is derived from Article XIV like flesh grafted onto the skeleton.

(2)The grafting is done pursuant to the powers to legislate under Article VII.

(3)When exercising the power to delegate it was natural to refer to the flesh rather than to the bare bones.

(4)The Crown's case is that before the amendment in 1974 section 5 restricted delegation.  The 1974 amendment was to remove the fetter.  Hence, after the removal, it was understandable that reference was made to the amended section 5."

74. Mr. Lee accepted quite rightly that no local legislation including section 5 of the Magistrates Ordinance can overrule or derogate from Article XIV of the Letters Patent.  Therefore if contrary to his submissions I was to hold that Article XIV prohibited delegation, then the only delegation in question would be unlawful

Conclusions

1.                I am satisfied having regard to the changes in language and based on the other arguments addressed to me that the Governor's power to appoint public officers (including magistrates) under Article XIV is sub-delegable.

2.                I am also satisfied that in fact the Governor has purported to sub-delegate his powers under section 5 of the Magistrates Ordinance by virtue of the 1974 minute which signifies the then Governor's intention to sub-delegate under that Ordinance.

3.                I am further satisfied that the section 5 power to appoint magistrates is sub-delegable in law by virtue of section 63 of Cap. 1.

4.                I do not think that the effect of section 63 of Cap. 1 is avoided either by the terms of section 5 of the Magistrates Ordinance itself or by reason of the terms of the Judicial Services Commission Ordinance, Cap 92.  In other words, I reject the submission that these two matters indicate a contrary intention to section 63 within the meaning of section 2 of Cap. 1.

5.                I reject the submission made by Mr. Lee that the purported sub-delegation under section 5 of the Magistrates Ordinance is a sufficient sub-delegation in law of the powers of the Governor contained in Article XIV.  I am not prepared to construe the February 1974 minute as an effective sub delegation of the Article XIV power to appoint magistrates

Reasons

75. There is not a shred of evidence before me that when the Governor signed the minute in February 1974 under section 5 of the Magistrates Ordinance, that anyone had applied his mind to Article XIV of the Letters Patent.  I am satisfied that the Governor intended to delegate his section 5 powers and for all I know he may have had the provisions of Cap. 1 well in mind.

76. However, I cannot bring myself to conclude that it can be proper to deal with powers delegated by the Sovereign to the Governor in such a casual manner.  It would have been simple for the Governor to have been asked to sub-delegate both the Article XIV powers and the section 5 powers.  It was not done and I do not see why any court should be forced to speculate as to what he had in mind at the relevant time.  It may be said that this is a very technical approach.  Yet, here, we are dealing with matters of high constitutional importance which in my judgment deserved to be dealt with properly.  It does not appear that the Governor had his mind directed to the source of the power he was being asked to delegate and I cannot ignore such a lacuna.

77. Although Mr. Keane quite fairly conceded that he knew of no principle that required that a sub-delegation of this nature had to be in writing I agree with him when he submitted that it is highly desirable for such matters to be recorded.  How would anyone know what had been done if both the donor and donee of the power were no longer with us.  Surely it cannot be in the public interest for such matters to be dealt with by a telephone call or at an unrecorded meeting.  The donor of the power must in my judgment also communicate that fact to the donee.  There is no evidence whatsoever, that the Chief Justice was ever told that he was being asked to exercise the Governor's Article XIV power.  Had he been so told he too might have given the matter some further thought.

78. I reject Mr. Lee's submission that once one sees as he says one does in the February 1974 minute, a clear intention by the Governor to sub-delegate the general power to delegate under Article XIV is exercised even though only the specific section 5 power is referred to.  The fallacy in this argument is that it involves 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".  I find it difficult to see how the two answers are the same, as a matter of law.

79. I find little assistance in paragraph 926 in Volume 36 of Halsbury's Laws of England nor from Bruce v. Bruce [1871] L.R. 11 Eq 371 which deals with co existing powers under testamentary dispositions If a donee has more than one power, the exercise of one "will not without more, show an intention to exercise the rest" (Halsbury).  Nothing has been pointed to which enables me to hold that as a matter of construction, the February 1974 minute effectively delegated the Article XIV powers to the Chief Justice.

Colonial Laws Validity Act 1865

80. Although this statute appeared as the first item on Mr. Keane's list of authorities neither side mentioned it during the course of their original submissions and neither accepted a later invitation from the court to make submissions upon it.  In those circumstances I have not considered what bearing (if any) such Act might have upon the wide ranging submissions placed before me.

Result

81. It follows from the foregoing that I have concluded that whereas the Governor was able to delegate his powers of appointment in relation to magistrates under Article XIV of the Letters Patent he has not, in fact.  so delegated these powers to the Chief Justice.  In those circumstances it must follow that Mr. Line s appointment is invalid as having been made by the wrong person.  I hasten to add again that this is no reflection upon Mr Line in any shape or form and it is of course no reflection upon the work that he has faithfully carried out during the nearly three years that he has sat as a magistrate in Hong Kong

82. However, that is not the end of the matter because Mr Lee on behalf of the Attorney General has submitted that even if Mr. Line has not been properly appointed by reason of the lack of delegation above referred to Mr. Line should, for all other purposes, be treated as a magistrate under what has been termed the de facto judge principle.  I have heard wide ranging arguments upon the very existence of this doctrine and its applicability to the facts of this case and it is now to this part of the case that I must turn my attention

De facto Judge Submission

83. I have to decide firstly whether such a doctrine exists in English law; secondly if it does what part it can play in criminal cases; and thirdly if satisfied that it has a part to play what limitations (if any) are to be placed on the doctrine.

84. Sir Owen Dixon defined the doctrine thus;

"... the acts of an officer de facto done in the apparently regular execution of his office have equal force and effect with those of an officer de jure when they concern the rights and duties of the subject.  There are questions outstanding as to the limits of this principle or the conditions controlling its operation."

[Contributed to Res Judicata (Vol. 1 No. 4 October 1938 pages 229 237) the magazine of the Law Students Society of Victoria reprinted in Jesting Pilate]

85. Sir William Wade in his book on Administrative Law (6th edition) refers to the doctrine in the following terms between pages 336 & 338.

"Officers and judges de facto

In one class of cases there is a long standing doctrine that collateral challenge is not to be allowed: where there is some unknown flaw in the appointment or authority of some officer or judge.  The acts of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all.  The logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so.  In such a case he is called an officer or judge de facto as opposed to an officer or judge de jure.

The House of Lords applied this principle to an administrative authority so as to uphold a rate levied by a vestry although a number of the vestrymen had not been duly elected Lord Truro LC described them as vestrymen de facto and said:

"You will at once see to what it would lead if the validity of their acts when in office depended upon the propriety of their election.  It might tend if doubts were cast upon them, to consequences of the most destructive kind.  It would create uncertainty with respect to the obedience to public officers and it might lead also to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers taking the law into their own hands...."

The decisions indicate that the doctrine will apply only where the office holder has colourable authority or some colour of title to the appointment.  Where the registrar of the Bedford Level company employed a deputy to register land titles within the Level, it was held that registrations effected by the deputy after the death of the registrar was known were invalid: the deputy's authority expired on the death of his principal and once the death was generally known the deputy could not be taken to have any colour of authority to act.  Lord Ellenborough CJ said:

"An officer de facto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law..."

The de facto doctrine has a long history and has been applied to a wide variety of officers.  It was even said to have applied to the monarchy, so that it might validate acts done in the names of kings whose title to the throne was considered illegitimate and who were kings in fact and not in law.  At the other end of the scale the doctrine was invoked from an early date to uphold copyhold titles enrolled by stewards of manors who were not properly appointed Offices were long considered to be a form of property and wrongful possession of an office may be compared with wrongful possession of land: just as a wrongful occupier of land may validly exercise an owner's powers (to convey, sue for trespass etc) against all but the true owner merely on the strength of the fact of possession so the wrongful occupier of an office may validly exercise its powers as against members of the public merely on the strength of his authority de facto Both titles to land and unlawful administrative acts are subject to a similar principle of relativity.  In many legal situations it is a mistake to suppose that the consequences of invalidity should be worked out with rigid logic and without regard to facts.

In a number of reported cases the possibility of authority de facto does not seem to have been argued, for example where the Privy Council set aside penalties for bribery imposed by the Bribery Commission in Ceylon because the commissioners had not been appointed by the proper body and where the High Court declared a trial void because the deputy recorder was a solicitor and not a barrister as required by statute."

86. Dr. Rubinstein in his book entitled Jurisdiction and Illegality sets out at page 206 the definition of this doctrine from the Corpus Juris Secundum

"A judge de facto is one acting with colour of right and who is regarded as and has the reputation of exercising the judicial function he assumes; he differs on the one hand from a mere usurper of an office who undertakes to act without any colour of right; and on the other from an officer de jure who is in all respects legally appointed and qualified to exercise the office."

87. The origin of the doctrine appears to date from the turbulent times of the Wars of the Roses where such a rule was perhaps needed to give de facto recognition to the results of shifts of power caused by armed conflicts.  The rule has been described by a New York Court as

"essential to the preservation of order the security of private rights and the due enforcement of the laws"

[Curtin v. Barton (1893) 139 N Y 505 at 511.]

The doctrine is perhaps viewed as the child of necessity.

88. The earliest example of the doctrine appears to be the case of the Abbot of Fountains in 1431 (Y.B 9 H VI 72 PL.3).  That case turned on technical pleading points.  The Abbot for the time being was sued on an obligation under the seal of the Abbey and made by a certain person as Abbot.  The Abbot was a corporation sole and one Abbot could bind his successors.  The defendant s answer to the suit was that the person who placed the seal upon the obligation was improperly inducted and occupied the office as usurper.  Under the rule of pleading a plea in confession and avoidance "should give colour" Colour meant an apparent or prima facie right.  Without going into any more details of the case, it is sufficient to conclude that the case is the origin of the limitation to the doctrine namely that a de facto officer should have a colourable title or authority.

89. I propose to refer to three more recent cases from New Zealand.  Australia and England all of which considered the doctrine and all of which made reference to a leading American authority.  I shall then consider the cases that Mr. Keane relies upon to show that no such theory exists or does not exist in the context of criminal cases.

90. In Re Aldridge [1893] 15 NZLR 361 the applicant had been sentenced to a term of imprisonment by a judge who had been improperly appointed.  There had been statutory provision for four Supreme Court judges and this gentleman was the fifth.  After the time for appealing had expired the prisoner commenced proceedings for habeas corpus.  The application was dismissed and in his judgment Richmond J. dealt fully with this doctrine and cited both English and American authorities.  It is clear from the judgment that the judge in question continued in office until quo warranto proceedings were commenced against him and such proceedings ended in the Privy Council which affirmed the invalidity of his appointment (See Buckley v. Edwards [1892] A.C. 387)

Richmond J. held that

"The prisoner having been tried at a sitting of the Supreme Court held by one who was a judge de facto his conviction is lawful and irreversible."

91. The learned judge recognised the historical research which had gone into the judgment of Butler C J. of the Supreme Court of Connecticut in State v Carroll 9 American Rep. 409.  Although Butler, C.J. started his analysis of cases with the Abbot of Fountains case (supra) Richmond J. placed more reliance on Bagot s case 9 E.IV 1 & 9.  When Edward IV acceded to the throne the three preceding Lancastrians kings were declared usurpers.  This raised questions as to the validity of acts done by them and by their appointees, including judges.  An act was therefore passed in the first year of the reign of Edward IV which declared valid judicial and other acts and processes in any court held in the times of Henry IV. Henry V and Henry VI (described as "lately kings de facto sed non de jure").  This act also confirmed the commissions of the judges appointed by these three kings.  The act was declaratory and in Bagot s case both parties and the court treated the act as merely affirming the common law (See the doubts of Sir Jocelyn Simon in Adams v. Adams infra.)

92. Richmond J. quoted Buller, J. in Milward v. Thatcher 2 TR 81. 87 who says;

"The cases cited are cases of writs of error brought in civil actions and the objection was taken to the competency of the judge below; but in such case the question whether they be properly judges or not can never be determined; it is sufficient if they be judges de facto.  Suppose a person was even criminally convicted in a Court of Record and the Recorder of such court were not duly elected, the conviction was still be good in law he being the Judge de facto."

93. This citation is of interest when I come to consider R v. Cronin [1940] 1 AER 613 a case heavily relied upon by Mr. Keane.

94. It is important to note that in Aldridge the court proceeded on the basis that the office to which the judge had been purportedly appointed did in fact exist.  It was said that because there was already a full complement of four Supreme Court judges no vacancy existed.  A distinction appears to exist between improper appointments due to lack of oath no vacancy or appointment by the wrong person on the one hand, and cases on the other where a person is purportedly appointed to a non existent post.  In this instance there may be no scope for the de facto theory.  Usurpers are clearly not to be assisted by such a theory.

95. Denniston, J. also cited some observations of the United States Supreme Court in Norton v. Shelby County 118 US Rep 425. 441 where it was stated;

"Offices are created for the benefit of the public and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions.  For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law their title is investigated and determined.... Where an office exists under the law, it matters not now the appointment of the incumbent is made so far as the validity of his acts are concerned.  It is enough that he is clothed with the insignia of the office and exercises its powers and functions."

96. Relying neavily on State v. Carroll and Norton v. Shelby County Richmond Dennistion and Conolly JJ held that the judge in question was a judge de facto both as acting under colour of right and otherwise.  All five judges of the New Zealand Court of Appeal held that the validity of the conviction and sentence could not be called into question in such a proceeding

97. In Adams v. Adams [1971] P. 188 Sir Jocelyn Simon president of the Probate Divorce and Admiralty Division had to consider a claim by a wife that her Rhodesian divorce was valid.  The judge who granted the decree had been appointed by the post U.D.I. government.  The wife conceded that the 1961/4 constitution was the only valid constitution but contended that the judge s decree should be recognised either under the doctrine of necessity or under the de facto judge principle.

98. The learned President dismissed the petition on the basis that;

"It would be a constitutional anomaly for our courts to recognise the validity of the acts of Macaulay J. as a de facto judge, while the executive acts of those appointing him (which must include his very appointment) are refused recognition de facto by the executive here."

99. Mr. Blom Cooper Q.C., who intervened on behalf of the Attorney General, submitted that the de facto judge principle had never been received into English law.  He relied upon the fact that if it had R. v. Cronin (infra) would have been decided differently.

100. At pages 211 et seq the learned President considered State v. Carroll (supra) re Aldridge (supra) and Sir Owen Dixon s article in Res Judicata (supra).  He accepted that Cronin was inconsistent with the doctrine but added that;

"It is of the essence of the common law that its rules even though fallen into disuse may be revived if circumstances develop in which they may prove to be again of value."

101. The learned President was satisfied that the doctrine extended to the acts of a judicial officer.  However he refused relief on the basis that Macaulay J s appointment "was a known one and the circumstances which rendered it invalid in the eye of English law must have been notorious".  In effect what he said was that there was a notoriously known defect in the appointment of this judge, and thus there was no colour to his appointment

102. Adams v Adams is the most recent English autnority of great weight in support of the existence of the doctrine, even though on the very special facts of that case it did not assist the wife.

103. Queen v. Cawthorne [1977] 17 S A S R 321 raised issues relating to the validity of the appointment of Industrial Registrars (including deputies) under the provisions of the Industrial Conciliation and Arbitration Act 1972-5.  Under that Act all applications for registration were required to be dealt with by the Industrial Registrar which term included the Deputy Industrial Registrar.  At the time that this application was made there was an Industrial Registrar and two deputies but all three of them were members of the Public Service Association and as that Association was involved in the dispute they took the view that they were disqualified from hearing the application.

104. Mr. Cawtnorne was an Industrial Magistrate and he was accordingly appointed by the Public Service Board to be a "temporary Industrial Registrar" in order to hear this application.  He started hearing the application and heard evidence and submissions and reserved his judgment.  Before he had given any decision the validity of his appointment as a "temporary Industrial Registrar" was challenged, and he took no further action in the matter.  At this point the Deputy to the Governor created a new office of a third Deputy Industrial Registrar and the Public Service Board purported to engage Mr. Cawthorne as a Deputy Industrial Registrar pursuant to the Public Service Act 1967 1975 for the purpose of hearing the application.  Mr. Cawtnorne told the parties that he accepted that his first appointment was invalid and therefore a nullity, but he regarded his second appointment as valid and effective.  He treated the evidence and submissions of the parties which he had heard during his first appointment as evidence and submissions for the purpose of the second hearing, and after giving the parties the opportunity of calling further evidence and making further submissions he granted the application for registration.

105. An application was made to the Supreme Court for an order of certiorari to quash his decision.  The Suprems Court consisting of Bray C J. and Sangster and Jacobs JJ held;

"(1)That upon the principle of necessity the Industrial Registrar and the two Deputy Industrial Registrars in office at the time of the making of the application were not all disqualified from hearing the application and the application should have been heard by one of them.

(2)That the first appointment of C. as "temporary Industrial Registrar" was invalid there being no power to appoint a temporary Industrial Registrar when there was already a duly appointed Industrial Registrar in occupation of his office.

(3)That the second appointment of C., pursuant to s. 108 of the Public Service Act 1967 1975, was not authorised by that section and was also invalid.

(4)     That although C s acts done under the authority of his first invalid appointment could not be regarded as valid as being those of a de facto public officer done in the apparently regular execution of his office because the validity of that appointment had been challenged before he had given any decision his acts done in the execution of his office under the second invalid appointment had equal force and effect with those of an officer de jure and were valid.

The doctrine of the validity of the acts of de facto public officers considered and discussed

In re Aldridge (1893) 15 N.Z.L.R. 361 and Adams v. Adams [1971] P. 136 followed."

106. At p. 329 Bray. C J. remarked that it was the first time in his experience of the law that "the venerable principle of the common law that the acts of a de facto officer done in the apparently regular execution of his officer done in the apparently regular execution of his office have equal force and effect with those of an officer de jure" had been invoked.  He went on to state that the title of the office can only be challenged "in some proceeding directly impeaching it, such as quo warranto".

107. Bray C J. was satisfied that the principle was part of the common law and was still in force.  He agreed with Sir Jecelyn Simon P in Adams v. Adams decided only six years previously

108. Bray C J. identified three circumstances in which the doctrine may not apply Firstly it does not apply to the purported exercise of an illegal office.  The office must exist de jure.  Thus it was necessary to pass legislation to deal with Cromwell and the Procterate because unlike the king the office of Lord Protector did not exist (See the Act for Confirmation of Judicial Proceedings 1660.)

109. Secondly it is doubtful that it applies if the record itself disclosed the invalidity of the appointment

Thirdly, the doctrine does not apply to a mere usurper without colour of any right.

110. Bray C J. then referred to Butler C J. s statement of the principles involved in State v Carroll which were described by the United States Supreme Court as "an elaborate and admirable statement of the law" Butler C.J. put the matter thus;

"A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: An officer de facto is one whose acts though not those of a lawful officer, the law upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

First, without a known appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action supposing him to be the officer he assumed to be.

Second under colour of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition as to take an oatn give a bond or the like

Third under colour of a known election or appointment void because the officer was not eligible or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility want of power or defect being unknown to the public.

Fourth under colour of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such.

Any thing less comprehensive and discriminating will, I think, be imperfect and deceptive as a definition."

111. As in Cawthorne the present case would appear to fall within the third class of case referred to by Butler C J. Bray C J. made one qualification to the Butler classification.  At page 333 he said;

"Despite apparent authority to the contrary (see Ellis v. Bourke) it seems to me that if the validity of the appointment is challenged by a party to the proceedings then and there before the officer in question when the matter comes on before him and before he has given any decision, he ought to, desist from hearing the matter to allow an application for quo warranto to be made.  If despite the objection he goes on and decides the case and subsequently judgment of ouster is given against him on quo warranto.  I refuse to believe that there would be no way of obliterating the decision or its effects.  A judgment of ouster clearly has no retrospective effect.  This appears from Aldridge s case where the appointment of the purported Judge in question had been previously declared invalid by the Privy Council in the equivalent of quo warranto proceedings (Buckley v. Edwards)

And if instead of desisting he purported to decide the question of validity and decided it in his own favour.  I am not convinced that a court with appellate jurisdiction ought not to take cognizance of the point and decide it despite logical difficulties about appeals against nullities.  I discuss this matter in Reg v.  The Industrial Commission of South Australia; Ex parte Public Service Association

The answer probably is that if the validity of the appointment is challenged before the officer when the matter arises he no longer has such a reputation of lawful appointment as is referred to in the first proposition of Butler C J. and the defect has been made known to the public within the meaning of the third proposition - and this qualification must in my view impliedly apply to the second proposition as well so that the rule about the validity of the acts of de facto officers would no longer apply."

112. In Cawthorne when the application came on after the second appointment no objection was then and there taken to the validity of that appointment.  At p 340 Sangster C J. in noting that Mr. Cawthorne had not handed down any decision when the validity of his first appointment was questioned did add that had Mr Cawthorne already handed down his decision "other considerations may well have applied".  I will have to return to this point later when applying such principles as I find to exist to the facts of the present case.

113. Mr. Keane, in submitting that the doctrine no longer existed or that it did not apply to criminal cases, referred to a number of cases which would or should have been decided differently had the doctrine in fact existed.  To a great extent this submission involves contending that the principle has been rejected sub silentio even though it was never argued.  If that indeed, is the submission then it cannot stand to the light of R. v. Hughes [1865] L.R 1 P.C 81 at 92. a Privy Council decision binding upon me.

114. Mr. Keane relied heavily on R. v. Cronin [1940] 1 AER 618 & 56 T.L.R. 457.  In that case the Municipal Corporation s Act 1882 permitted a Recorder who was unable to attend to appoint a barrister of five years standing to act as his deputy Cronin was convicted at quarter sessions presided over by a person appointed to act as a deputy Recorder by writing under the hand of the Recorder but unfortunately that person was not, and never had been a barrister.  The court of criminal appeal consisting of Charles.  Humphreys and Tucker JJ held that the proceeings were void ad initio that the conviction should be set aside and annulled and that the appellant should be ordered to appear at the next quarter sessions to answer the indictment against him.  It is clear from both reports that counsel for the Crown referred the court to the case of Margate Pier Co. v. Hannam [1819] 3 B & Ald 266.  That was a case which certainly supported the de facto doctrine.  However the judgment of Charles J. simply states "it is perfectly clear that that error having been made the court of quarter sessions was never so constituted as to be empowered to try anyone at all for anything and the proceedings were void ad initio." The rest of the judgment is taken up with a consideration of the proper course that should be taken in order to remedy the unfortunate mistake.  In none of the reports does the court give any consideration to the de facto doctrine but Mr Keane says that if such a doctrine existed then surely it would have been sufficient to dispose of the matter in that case.

115. Mr. Keane goes on to cite three Privy Council decisions which he says ought to have gone the other way if this doctnine existed.  These cases are Gahan v Lafitte [1842] 13 E.R 155; Butler v R [1939] A C 484 and Bribery Commissioner v Ranasinghe [1965] A C 142.  There is also the High Court of Australia decision in Presley v Geraghty [1921] 29 C L R 154.

116. As to that submission.  I agree with Bray, C J. in Cawtnorne that the silence of these courts cannot be tantamount to rejection of the doctrine.  Sir Jocelyn Simon, P. in Adams at page 212 disposed of Cronin by making the point that this doctrine was not drawn to the attention of the court and I think he is right on that even though the Margate Pier case seems to have been mentioned by counsel for the Crown.  It is surprising that Milward v. Thatcher was not cited (supra).  However the point does not appear anywhere in the judgment and it is impossible to take this decision as being a proper analysis of the non existence of the doctrine.  In any event the decision is not binding upon me and if, it is said that this decision is in fact contrary to the doctrine then I decline to follow it.

117. Mr. Keane s general submission was that if such doctrine existed it seems strange that none of the able minds who had to consider problems in this area never thought of this doctrine.  However in my judgment when it comes to a choice between cases where the doctrine could have been considered, but was not on the one nand and cases such as Adams Cawthorne and Aldridge on the other where the doctrine was carefully considered and found to exist I prefer unhestitatingly the latter approach.  Not only do these cases support the existence of the doctrine but so do Sir Owen Dixon Sir William Wade and Dr Rubenstein as can been seen by passages already cited.

118. Having concluded as I do that the doctrine exists and is applicable in criminal cases as well as in civil cases I now have to decide how to apply the doctrine to the facts of this case.

Application of doctrine to facts of this case.

119. As I made clear earlier in this judgment, both Applicants have not yet been committed for trial.  They are both on bail.  The application to stay the criminal proceedings was heard in September and October 1990 and Mr. Line s decision refusing the stay was given on 17th October 1990.  It was not until five months later in March 1991 that the point was first raised.

120. Mr. Lee submits that because as in Cawthorne the point was not raised before Mr. Line gave his decision, the doctrine should apply and it is now too late to raise issues as to the invalidity of Mr. Line s appointment.  For the doctrine to apply Mr Lee submits that the point must be raised before the very judge trying the case and before he reaches a decision.

121. Mr Keane submits that if contrary to his submission the doctrine does exist then it only prevents a collateral challenge, but not a direct challenge, such as he says is raised here.  By collateral challenge he means for example that if a person were to be cross examined about a previous conviction it would not be possible for them to argue that they had not been so convicted due to any invalidity in the appointment of the tribunal before whom they were in fact convicted.  He would seek to classify Aldridge as a collateral attack because he had been sentenced and the time for appedling had expired and it was thus too late to raise the issue.

122. Dr. Rubenstein deals with the question of collateral challenge at page 208 where he says;

"The rule is that acts of de facto officers cannot be collaterally impeached but collateral proceedings have in this context a particularly wide meaning: every proceeding which does not seek to remove the judge including any attack upon the decision is deemed to be collateral."

123. Mr. Keane also submitted that as this point had been raised by Dr. Clark in his article in 1989 which itself had gained coverage in the press the invalidity of the appointment had been made apparent and that therefore from that time Mr. Line s appointment lacked any colourable authority.  He went further to submit that as Mr. Line and indeed everybody else should have known that the Governor could not, or had not delegated his Article XIV powers there never was any colour to his appointment I reject this submission as being wholly unrealistic.  In any event I have concluded that the powers were delegable and nobody knew about the 1974 purported deleyation or its effect in law.

124. It seems to me that there are two crucial points on the facts of this case.  Firstly the Applicants have not yet been committed for trial and will have to make regular appearances before the magistrate.  Even though he has ruled against them on the stay application he is not functus officio in any way and in normal circumstances may well have other matters to consider such as whether there is sufficient evidence upon which either one of them can be committed for trial.  Further there is nothing to stop the Applicants renewing their application for a stay of the proceedings if new matters were to arise or if perhaps the delay about which they originally complained became substantially longer.  There may be applications concerning the terms of bail although this seems unlikely.

125. Secondly it has to be borne in mind that in the judicial review proceedings which have been taken challenging Mr. Line s decision not to grant a stay leave has been given to the Applicants to raise the very point concerning the validity of Mr. Line s appointment.  That part of those judicial review proceedings is before me so that if I were with the Applicants I could deal with that aspect of the matter at the same time as dealing with the habeas corpus matters.

126. Bearing these two points in mind I have to ask myself whether this is in fact a collateral challenge or a direct one.  I bear in mind that Mr Keane and Mr. Chang have sought injunctive relief under section 21J of the Supreme Court Ordinance which in effect replaces relief by way of quo warranto.  I gave them leave to apply on the basis that they would accept a declaration in lieu of injunction if I were with them.

127. Had the Applicants raised this matter before Mr. Line gave his decision on the stay matter and had the court found that his appointment was unfortunately invalid I fail to see how the de facto doctrine would have assisted the Crown.  That would have been a full frontal attack which would have been decided one way or the other.

128. Is the delay of five months fatal to the Applicants position on this point? Had they been committed for trial I would have been inclined to apply the doctrine and to hold that it was too late for them to raise matters pertaining to Mr. Line s appointment.  However because they are still as it were in the charge of the magistrate having to appear before him from time to time and have not been committed for trial and are judicially reviewing his decision on grounds which include an attack on his appointment I cannot conclude that the attack is collateral, and is thus defeated by the de facto judge doctrine.  It is of course regrettable that this point was not taken in September or October 1990 especially since Dr. Clark wrote about it in 1989.  But it has now been taken and tempting though it is for any judge to apply it to preserve the status quo.  I do not think that on the facts of this case it would be right to do so.  It is a doctrine which clearly exists and which has many uses but I am not able to extend it to the facts of this case and nor does any authority cited compel such a conclusion.  The doctrine may well apply so as to prevent defendants in cases concluded before Mr. Line (or other magistrates) from now raising the question of this invalidity.  However I do not have to decide that point.

Final Result

129. Because I am not able on the facts of this case to apply the de facto judge principle it follows and I so hold, that Mr. Line's appointment is invalid in law I will now hear counsel on the form of relief that is appropriate, on the question of costs and on any other matters that arise consequent upon my decision.

130. It only remains for me to thank all counsel for the very helpful submissions made to me, many of which were usefully reduced into writing I would also like to thank them all for their assiduous industry in providing such interesting and, at times, entertaining materials.

Representation:

Mr. Denis Chang Q.C. Mr. Johnny Mok & Miss Winnie Tam instructed by Cheng Yeung & Co. for 1st Applicant

Mr. Desmond Keane Q.C. Mr. Paul Loughran & Mr. Gerard McCoy instructed by K.K. Chu & Partners for 2nd Applicant

Mr. Martin Lee Q.C., Mr. Joe Pethes & Mr. Y.L. Wong instructed by Crown solicitor for the Attorney General and Mr Peter Line.