Read the full judgment text of CACV 000149/1997 on BabelCite. This Court of Appeal judgment was delivered on 18 November 1997 before Nazareth, V.P., Mortimer, V.P. and Liu, J.A..
Administrative law – judicial review – New Territories Ordinance (Cap. 97) s.15 – registration of manager of t'ong or t'so – two registered managers of t'so land died in 1973 and 1974 – no successor managers appointed – application by member for order of mandamus to compel District Officer and Secretary for Home Affairs to cancel registration of deceased managers and appoint new managers – whether s.15 second limb extends to cancellation of appointment of deceased manager – held, no: office of t'so manager appointed under s.15 terminates on death, so there is no subsisting appointment to cancel and no incumbent to be displaced – whether 'may' in s.15 should be read as 'shall' imposing a duty to act – held, no: in context 'may' bears its ordinary permissive meaning, and risk of forfeiture does not convert discretion into duty – whether refusal to act was Wednesbury unreasonable – held, no: public officers reasonably required updated information, family tree, list of members and evidence of consents before exercising any power – purposive construction of s.15 considered but rejected for the second limb in this context – Farrow v. Wilson (1860) LR 4 CP 744 and Stubbs v. Holywell Railway Co. (1867) LR 2 Exch 311 applied on termination of personal appointments by death – first limb of s.15 not engaged as no t'so appointment was presented for approval and registration – way forward lies in members of t'so themselves appointing a manager under the first limb – appeal allowed, order of Yeung J set aside – order nisi as to costs in favour of appellant, with applicant's own costs to be taxed under the Legal Aid Regulations.
Legal issues: Construction of s.15 New Territories Ordinance – cancellation of appointment of deceased manager · Whether 'may' in s.15 New Territories Ordinance means 'shall' · Wednesbury unreasonableness of refusal to exercise s.15 power
Outcome: Appeal allowed; the order of Yeung J granting declarations and an order of mandamus was set aside.