2 Dec 2020
To avoid potential ultra vires consequences and collateral litigation on jurisdiction, the listing judge exercised administrative powers to list the substantive jurisdictional argument before a designated judge pursuant to the requirement in Article 44(3) of the National Security Law and the judiciary's responsibility for assignment of judges.
2 Dec 2020
The listing judge exercised administrative power over case assignment and, to avoid potential ultra vires challenges and collateral litigation, directed that the substantive jurisdictional argument be heard by a designated judge; the decision was administrative and did not construe the National Security Law, leaving substantive determination to the designated judge.
22 Apr 1991
Article XIV power to appoint magistrates is delegable in principle, and appointments under section 5 are delegable under section 63 Cap.1; however the 1974 minute did not evidence a valid delegation of the Governor's Article XIV power to the Chief Justice and there is no evidence the Governor intended to delegate the Letters Patent power; therefore Mr. Line was appointed by the wrong person and his appointment is invalid. The de facto judge doctrine exists but is not applied on these facts because the challenge is not collateral and the applicants have not been finally dealt with by the magis…
22 Apr 1991
The court held that Article XIV does permit delegation of the Governor's power to appoint public officers including magistrates in principle, and statutory mechanisms (s63 Cap.1) permit delegation of the section 5 power, but the specific 1974 minute did not evidence a valid sub-delegation of the Article XIV power to the Chief Justice; therefore Mr Peter Line's appointment by the Chief Justice was invalid. Although the de facto judge doctrine exists, it did not bar the applicants' challenge on the facts because their challenge was not merely collateral and the applicants had not been committed…
22 Apr 1991
Although Article XIV powers to appoint public officers including magistrates are in principle delegable, the court found the 1974 minute did not effect a valid delegation of the Governor's Article XIV power to the Chief Justice; consequently Mr. Line's appointment by the Chief Justice was invalid; the de facto judge doctrine exists but on these facts it did not bar the applicants' direct challenge because proceedings were not collateral and the applicants remained under magistrate jurisdiction and had active judicial review rights.
22 Apr 1991
Court held Article XIV power to appoint public officers (including magistrates) is in principle delegable and section 5 appointments are delegable under s.63 Cap.1, but the 14 February 1974 minute did not evidentially or legally effect a delegation of the Governor's Article XIV powers to the Chief Justice; therefore Mr. Line was not validly appointed and his appointment is invalid. The de facto judge doctrine exists but on these facts (challenge not merely collateral; applicants not committed for trial and judicial review pending) it did not save the appointment or orders made by Mr. Line.
22 Apr 1991
Court held that although the power to appoint magistrates under Article XIV is in principle delegable and local law (Magistrates Ordinance s.5 read with Cap.1 s.63) permits sub-delegation, the 14 February 1974 minute did not evidence a lawful sub-delegation of the Governor's Article XIV power to the Chief Justice; accordingly orders made by Mr Peter Line were made by a person not properly appointed and his appointment is invalid; the de facto judge doctrine did not save the appointment in the circumstances because the challenge was not merely collateral and the applicants' proceedings were on…