Case Detail

HCA000507A/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 507 OF 1968

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BETWEEN:
	Rediffusion (Hong Kong) Limited	Plaintiffs
	AND
	The Attorney General of Hong Kong for and on behalf of himself and all other members of the Legislative Council of Hong Kong.	First Defendant
	Geoffrey Catzow Hamilton	Second Defendant

Coram: Hogan, C.J., Huggins, J.

Date of Judgment: 7 June 1968

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RULING

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1. These proceedings began in open court on May 27th because we then had before us not only two Summonses but a Notice of Motion. Motions are normally heard in open court and, at the time, it seemed that it might be desirable to hear these three applications together, although Summonses are normally dealt with in Chambers.

2. There was also a question as to whether under our new rules the possibility of a Full Court sitting in Chambers which was recognized in the older practice still prevailed.

3. In the upshot, it was thought desirable to deal separately with the Summons and the Motion and attention was drawn to the fact that as the Summonses would presumably have been heard in Chambers if taken by a single judge the order putting them before the Full Court should not result in a departure from the normal practice of taking Summonses in Chambers.

4. Last week, we heard the first of these Summonses filed by the defendants, which requested us to set aside the Writ through lack of jurisdiction.

5. On Saturday last we gave our ruling on that Summons in favour of the plaintiffs and our reasons for it and indicated, at the time, that we proposed to make the ruling and the reasons available for publication in the Law Reports and otherwise.

6. We then heard argument on the second Summons which asked us to strike out the endorsement on the Writ or, alternatively, part of it and we indicated that we would propose to give our ruling on that Summons in open court if it had the effect of finally disposing of the action. We have now adjourned to open court for that purpose but before proceeding to our decision and the reasons for it, we would mention that since the hearing began application has been made to replace by the Attorney General the representatives originally named as first defendants and this has been allowed. Although the application was said to have been prompted by an observation coming from a member of the Bench, the court would not wish it to be taken as expressing the view that the Attorney General can, in these proceedings, properly be sued by the name of his office. This question was not fully argued before us when we allowed the amendment, which was not opposed by the defendants.

7. We now proceed to deal with the Summons to strike out.

8. In the form in which it was originally filed, the Writ which we are asked to strike out sought a declaration that it would not be lawful for the Legislative Council of Hong Kong to pass an Ordinance provisionally entitled "a Bill to modify the Copyright Act 1956 in its application to Hong Kong and to make further provision with respect to the 'opyright law in Hong Kong". The declaration was sought on the grounds that such an Ordinance would be ultra vires the Legislative Council of Hong Kong "having regard to the terms of Section 31(3) of the United Kingdom Copyright Act 1956 as extended (or proposed to be extended) to Hong Kong and repugnant to the provisions of that Act as so extended (or proposed to be so extended)." The Writ also sought consequential relief in the form of an injunction and unspecified "further or other relief."

9. Whilst the Writ remained in this form, the claim for relief rested, in effect, on the contention that the Bill to which it referred contains or would contain provisions which, when enacted in the form of an Ordinance, would conflict with and be repugnant to the law contained in the United Kingdom Copyright Act 1956, as extended to Hong Kong, and that, because of this repugnancy and conflict, the Ordinance would be void and inoperative under the terms of the Colonial Laws Validity Act 1865 and that, consequently, the passing of the Bill from which that Ordinance emerged or resulted would be an unlawful act.

10. In the course of argument question was raised as to the extent, if any, to which the 1956 Copyright Act could be regarded as currently operative in Hong Kong and, presumably because of this, the plaintiffs amended, as they were entitled to do under Order 20 rule I, the endorsement on the Writ so as to insert the words "Section 27 of the United Kingdom Copyright Act 1911" before the reference to Section 31(3) of the 1956 Act and replace the words "that Act" by "those Acts".

11. As we understand it, the basis of the Writ, as amended, is that the copyright law in force in Hong Kong is the law as prescribed in the 1911 Act of England; that this law can only be altered or modified in pursuance of the powers conferred by Section 27 of the 1911 Act and Section 31(3) of the 1956 Act as and when the latter is extended to Hong Kong; that the Bill at which the Writ is striking would purport, when enacted as an Ordinance, to alter and amend that law in a manner not authorized by the United Kingdom statutes and that since the enactment would, to that extent, be void, the passing of the Bill would itself be unlawful.

12. We are not concerned on this Summons with any question as to whether the terms of the Bill in question, if enacted as an Ordinance, would conflict with the substantive provisions of the 1911 Act or even the 1956 Act, if and when it applies. The Solicitor General has conceded for the purposes of this Summons that we may proceed on the assumption that the Bill, if it becomes an Ordinance, would so conflict and would, to the extent of such conflict, be void. But he maintains that the introduction of a reference to the 1911 Act makes no difference to the grounds and arguments on which he relies for his application under O.18 r.19 that the Writ or, alternatively, portions of it be struck out.

13. The grounds stated in the Summons read as follows:-

	(a)	that the writ of summons herein be struck out upon the grounds that the said writ discloses no reasonable cause of action in that the said writ seeks reliefs designed to prevent members of the Legislative Council from proceeding with a lawful part of the Legislative process of Hong Kong; and further and in the alternative,
	(b)	that the first relief claimed in the indorsement on the writ of summons herein be struck out upon the grounds that the said first relief discloses no reasonable cause of action, in that the said first relief sought is a declaration as to hypothetical and future questions; and further and in the alternative,
	(c)	that the second relief claimed in the indorsement on the writ of summons herein be struck out upon the grounds that it discloses no reasonable cause of action in that the said second relief sought is an injunction the granting of which is prohibited under section 16 of the Crown Proceedings Ordinance.

14. There is no real dispute as to the principles upon which an order to strike out may be made under O.18 r.19. The rule is "only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the court": Nagle v. Feilden⁽¹⁾. We are concerned only with what appears on the face of the writ and affidavit evidence is not admissible: O.18 r.19(2). A case is said not to be "plain and obvious" where it "raises a question of general importance or serious question of law" (Dyson v. Attorney General⁽²⁾), but this means not merely that the question is important but that it is also one which is capable of, and ought to have, full argument: where the answer to the question, though important, is too clear to deserve argument the action may be struck out: Vacher & Sons Ltd. v. London Society of Compositors⁽³⁾. Where it is sought to strike out a writ as distinct from a pleading it behooves the court to be particularly careful before applying this summary remedy: Electrical Development Company of Ontario v. Attorney General for Ontario⁽⁴⁾. The procedure under this rule must not be used to resurrect the abolished procedure of demurrer. That was a very technical form of procedure based upon the old rules of pleading. Nevertheless we incline to the view that in every case where a pleading may properly be struck out under the rule, as not showing a sufficient cause of action, it would have been demurrable under the old practice. One must, however, go further: it is now open to the court to permit amendment, which would not have been allowed on demurrer. If such amendment will save the pleading the summary remedy is not available. The Court must be satisfied that the action is doomed to failure from the start so that no possible injustice can result if the action is stopped in limine.

15. Is this a plain and obvious case? The defendants say that it is. The contention put forward by the Solicitor General is, in short, (a) that the Legislative Council, which derives its existence and powers from the Letters Patent and Royal Instructions does not pass Ordinances at all and in effect that we are bound to treat the writ as though the words "pass a Bill" were substituted for the words "pass an Ordinance": (b) that the passing of a Bill which, if assented to by the Governor, would become an Ordinance - and an Ordinance repugnant to an Imperial statute applicable in Hong Kong - is not ultra vires the Legislative Council. In other words, it is immaterial that the acts of the Legislative Council in relation to the Bill are necessary steps towards the enactment of the Bill: those acts are to be considered as separate and distinct from the act of enactment and unaffected by any invalidity which may subsequently appear. There is, he said, no question of failing to comply with some statutory prerequisite or requirement for the passing of the Bill, and so no question arises under Section 5 of the Colonial Laws Validity Act; section 2 of the Act on which the plaintiffs must rely strikes only at the enacted law. It reads as follows:-

"Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.".

From this it is apparent, the Solicitor General said, that the conflict which would make the Ordinance void and ineffective could only arise as and when the law was made, i.e. as and when the Bill was assented to by the Governor and became an Ordinance; up to that point there could be no conflict because the Bill and the statute are not things of a like kind; consequently, the conflict contemplated by the Colonial Laws Validity Act could not arise between them.

16. Attention was directed, briefly, to the possibility that a Bill might contain some provisions that would be in conflict and some that would not, but, for the purpose of his argument, the Solicitor General was content to let it be assumed that the whole contents of the Bill in question would, if it became an Ordinance, be in conflict.

17. At the head of his interesting argument to the contrary, counsel for the plaintiffs put the propositions that the copyright law in force in Hong Kong could only be altered or modified in specified ways of which the Ordinance in question was not one and that consequently the anterior steps leading up to the enactment of that Ordinance would in themselves be unlawful; put more simply, that the Bill leading to the Ordinance would be tainted meat which the Legislative Council should not partake of or help to cook by passing it or giving it a first, second and third reading; that the subsequent invalidity would relate back to the proceedings in the Legislative Council and that therefore it is ultra vires the Legislative Council to pass and to present for the Governor's assent any Bill which would be invalid if assented to. To put the argument in a slightly different form, he said that the enactment of such a Bill would be ultra vires the Legislature, that the Legislative Council is a constituent part of the Legislature and that therefore the passing of the Bill by the Legislative Council would be ultra vires the Legislative Council.

18. We will return in a moment to the argument expressed in this latter form but, first, it is desirable to notice the main authorities on which plaintiffs' counsel relied to support his propositions, although, as some have already been noted in more detail when dealing with the earlier summons, they may now be mentioned more briefly.

19. He placed reliance on the principle endorsed by the Privy Council in the case of The Bribery Commissioners v. Pedrick Ranasinghe⁽⁵⁾. an appeal from Ceylon. The respondent in that case had been convicted and sentenced by the Commissioners, who had been appointed by the Governor General on the advice of the Minister of Justice. The conferment of judicial powers on these Commissioners was alleged to be invalid on the ground that, under the Ceylon Constitution, such powers could only be given to judicial officers appointed by the Judicial Service Commission. One side maintained that the statute authorizing their appointment was a valid amendment of the Constitution. The other side argued that it had not been enacted in accordance with the special procedure required for an amendment of the Constitution. In the course of their judgment the Privy Council, whilst distinguishing the matter before them from that which came under consideration in the Australian appeal to the Privy Council in McCawley v. The King⁽⁶⁾, quoted from the opinion in the earlier case a passage which read:

"The Legislature of Queensland is the master of its own household, except in so far as its powers have in special cases been restricted. No such restriction has been established, and none in fact exists, in such a case as is raised in the issues now under appeal.".

The Board in the Ceylon case went on to say:

"The passage just quoted ............ commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law.".

That principle is not, we think, contested in our case. The contention is that no conditions have been contravened.

20. Another Australian case on which plaintiffs' counsel relied is Attorney General for New South Wales v. Trethowan⁽⁷⁾, which was also concerned more with the manner and form of the legislative process. The Constitution Act 1902 of New South Wales was amended in 1929 by the addition of a section 7A which provided that no Bill for abolishing the Legislative Council (or repealing the section itself) should be presented for the Royal Assent until it had been approved by a majority of electors voting on a submission to them made in accordance with the section. Since the Acts of 1902 and 1929 were Acts of the local legislature, they were confined, so far as legislative power was concerned, by the Colonial Laws Validity Act. Without complying with the requirements of section 7A both Houses passed Bills to repeal the section and abolish the Legislative Council. Although other questions were canvassed in the lower courts, the appeal to the Privy Council was limited to the question "whether the Parliament of New South Wales has power to abolish the Legislative Council of the State, or to alter its constitution or powers, or to repeal section 7A of the Constitution Act, 1902, except in the manner provided by the said section 7A". In holding that Bills could not lawfully be presented until the requirements of that section had been complied with, the Privy Council relied on section 5 of the Colonial Laws Validity Act, 1865, which provides that:

"every representative legislature shall, in respect to the colony under its jurisdiction, have ............ full power to make law respecting the constitution, powers and procedure of such legislature; provided their such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony.".

The question in issue was whether, when a legislative power is given subject to compliance with a prescribed manner and form, that power exists only when the manner and form is complied with. The Privy Council endorsed the view that, unless the prescribed manner and form was complied with, the legislation would be ultra vires by virtue of Section 5 of the Colonial Laws Validity Act.

21. That, of course, is not the section in question in the present case, nor is it really contended that manner and form have not been met. The question in issue here is not merely whether Section 2 of the Colonial Laws Validity Act, which deals with the content of the legislation and not with the manner and form of its enactment, will operate to invalidate a law which may emerge from, or as a result of, a legislative process in Hong Kong but whether it will also operate to invalidate, and render (retrospectively) unlawful, steps taken at an earlier stage when the contents of the proposed legislation are in the form of a Bill, prior and leading up to its enactment.

22. Counsel for the plaintiffs argued that for the purpose of the present proceedings it was immaterial whether the alleged defect was attributable to a faulty step or failure in a particular part of the legislative process or to the contents of the legislation itself. We find difficulty, however, in accepting this argument and Section 2 and Section 5 of the Colonial Laws Validity Act seem to emphasize the difference between these two types of defect. It may also be noted here that Section 7A in the Constitution Act of New South Wales expressly prohibited the presentation of the legislation in question until it had been approved by a majority of electors. This, it may be thought, goes further than merely invalidating the subsequent enactment.

23. The Writ in our case does not suggest that there is a positive prohibition which is being or is about to be violated, as in the Trethowan⁽⁷⁾ case, nor is it suggested that there is failure or will be failure to comply with a particular procedure, form or manner which alone will give validity to the step which is being taken and the enactment which will follow it.

24. The legislation on which the plaintiffs rely purports not to prescribe, limit or control the action of which the plaintiffs complain but merely to render ineffective the measure or law which will emerge or result if, at a later stage, the Governor exercises the power vested in him by the constitution and takes the step of assenting to the measure which has been the subject of advice and consent by the Legislative Council but which, up to that moment of assent, does not purport and, indeed, could not purport to be anything more than a proposal for legislation which the Governor may or may not accept.

25. As an illustration of the distinction which we believe exists between a Bill and an Ordinance, we put to counsel for the plaintiffs the position which could arise if, when a Bill had been passed by the Legislative Council and presented to the Governor for Assent, it was discovered that it conflicted with the substance of a United Kingdom statute applicable to Hong Kong and, as a result of making representations or otherwise, the statute was amended by United Kingdom legislation so as to be no longer in conflict with the contents of the Hong Kong Bill and, thereafter, the Governor assented to the Hong Kong Bill. To the question whether the Ordinance which resulted would or would not be invalid because the Bill for it had been passed when the potential for conflict still existed, counsel indicated that the answer depended on whether the amending United Kingdom legislation expressly or by implication validated the Hong Kong legislation. We should have thought that the correct answer would be that if, at the moment when the Hong Kong Bill became an Ordinance, there was no repugnancy between the Imperial legislation and the Ordinance because the conflicting provisions of the Imperial Act no longer applied, the Hong Kong enactment would be valid and effective without any need for an express or implied validation.

26. It seems to us that the difference between the subject matter of the Trethowan⁽⁷⁾ case and the Ranasinghe⁽⁵⁾ case and the subject matter of the present proceedings emerges clearly from the passages and circumstances just mentioned and renders them less relevant to the point in issue. More relevant in its subject matter would appear to be the case of Hughes and Vale Proprietary Ltd. v. Gair⁽⁸⁾ which is probably better known for the question there raised by the Chief Justice, Sir Owen Dixon, as to the validity and limits of the decision in the earlier Trethowan⁽⁷⁾ case; but it also contained a statement by him, with which the other judges of the Australian High Court agreed, that "An application for an injunction restraining the presentation of a Bill for the Royal Assent is,

"not unprecedented but it is at least very exceptional. We do not think it should be granted on this occasion or later or in any case.".

The basis on which the court was asked to intervene was, apparently, that the content of the Bill was objectionable in that it sought in one state to regulate inter-state trade: it was not a case where there was a failure to comply with any particular step. This would seem to be borne out by the reference to the case in the Article at 71 L.Q.R. at p.340.

27. Returning to the less relevant field of cases where the alleged illegality flows from failure to take a prescribed step in the legislative process, there are, we think, certain general statements of value in the lengthy, and in some ways difficult, Australian case of Clayton and Others v. Heffron and Others⁽⁹⁾. The principal ground of alleged invalidity was based on the absence of certain contacts between the two houses of Parliament and the absence of power in the Governor to convene a joint sitting of the two houses which, it was contended, must precede any submission of the legislation in question to a referendum. Declarations were sought as to failure to fulfil the conditions precedent to such submission and injunctions to restrain the holding of the referendum. The main weight of the majority decision of the High Court of Australia fell on the issue whether the alleged deviations from procedure invalidated any resulting "statute" but there are passages in the judgment of the majority which illustrate the distinction which we see between an enactment having the force of law and a Bill or the substance of a Bill which, prior to the assent of the Governor, is not law but merely a proposed law or measure undergoing the process involved in the production of legislation. Having referred to the concession made by the defence in the suit before them for the purpose of securing a decision on the constitutional questions raised, the majority said:-

"	Upon the basis of this concession the Supreme Court entertained the suit and considered all the points submitted on behalf of the plaintiffs against the holding of the referendum. There is an ambiguity about the expression 'unconstitutional for the Bill to proceed to a referendum', but it seems almost certain that it was meant to cover only such a want of constitutional authority or such a defect of constitutional procedure as would result in its being impossible that the Bill should become a valid law even if approved by a majority of the electors voting at the proposed referendum. Even so, (if the concession is given full effect) the Court in acting upon the concession must go beyond its function of deciding whether an Act of Parliament assented to by the Crown does not go beyond the legislative power of the Parliament so that it cannot form part of the law of the land and must enter upon an inquiry into the lawfulness and regularity of the course pursued within the Parliament itself in the process of legislation and before its completion. It is an inquiry which according to the traditional view courts do not undertake. The process of law-making is one thing: the power to make the law as it has emerged from the process is another. It is the latter which the court must always have jurisdiction to examine and pronounce upon. Of course the framers of a constitution may make the validity of a law depend upon any fact, event or consideration they may choose, and if one is chosen which consists in a proceeding within Parliament the courts must take it under their cognizance in order to determine whether the supposed law is a valid law; but even then one might suppose only after the law in question has been enacted and when its validity as law is impugned by someone affected by its operation.
	It is not easy to escape the impression that if we had been considering the validity of a statute actually adopted in purported pursuance of s.5B of the Constitution Act and assented to by the Crown, some of the points taken in the present suit in support of the plaintiffs' case would have been seen in a truer perspective and put on one side as matters belonging to the legislative process which could not be entertained as grounds for invalidating a statute duly authenticated as enacted by the Legislative Assembly and approved by the electors under s.5B and assented to by the Governor.".

28. As we read the judgment, the majority held that they would not inquire into the procedure in Parliament or at least that they would not do so unless there was some allegation of a failure to observe a statutory requirement: such a statutory requirement would be part of the general law of the land, while the courts would recognize the right of Parliament to adopt any procedure it thought fit so long as it did not conflict with the general law.

29. Whilst the Australian cases we have mentioned are, of course, not binding on us they serve to illustrate the problem now before us and are persuasive both in the principles they recognised and endorsed and in their illustration of the approach adopted by the Australian courts to the question of interference with a non-sovereign legislature. Whilst some of the passages we have mentioned were pressed upon us in connection with the argument on jurisdiction, we do not regard them as necessarily and solely referable to jurisdiction. They have, we think, a bearing on the question whether the relief, which we have held lies within our jurisdiction, should be granted in the circumstances of the present case.

30. We turn back then to consider the plaintiffs' argument expressed in the form that, as the enactment of the Bill in question would be ultra vires the Legislature and as the Legislative Council is a constituent part of the Legislature, therefore, the passing of the Bill by the Legislative Council would be ultra vires the Legislative Council. This argument rests on the assumption that the Legislative Council is part of the Legislature in Hong Kong and, at once, it must be said that the action has not been brought against the Legislature but against the members of the Legislative Council. The Legislature in Hong Kong is "the Governor, by and with the advice and consent of the Legislative Council": Letters Patent Article VII. The Governor has a discretion either to declare or to withhold his assent, a discretion which is subject to instructions from the Principal Secretaries of State. The enacting words are prescribed by Clause XXV(1) of the Royal Instructions and are as follows:-

"enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof." .

This is a form slightly different from the wording of the Letters Patent and different also from the form used in relation to acts of the Imperial Parliament -

"Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same." .

The form of words which appears in the Letters Patent is traditional and when applied to the enactment of an Imperial statute is entirely grammatical. When applied to the granting of legislative power to a dependent Legislature the grammar is perhaps questionable. An ordinance in Hong Kong is not enacted "by" the Legislative Council nor does the Governor make laws "by" the Legislative Council. However, we think the time honoured form of words is used to convey the meaning that the Legislative Council, although not in the same position as Parliament, is nonetheless a participant in the legislative process and as such is a part of "the Legislature". In Hong Kong there is no definition of "Legislature" as there is for example in Section 3 of the Constitution Act 1902 of New South Wales, but the Legislative Council plays a part in the legislative process in that no ordinance may be passed without its consent. But even assuming that it is a constituent part of the Legislature and not merely a purely advisory body but a body whose decisions are (to use the Solicitor General's phrase) "powerfully permissive", it does not, in our view, follow that it is necessarily ultra vires the part to advise what would be ultra vires the whole. The Legislative Council is concerned to advise the Governor what is desirable in the interest of public policy and one may readily conceive of a matter upon which the Legislative Council, which prima facie should be closer to public opinion and the domestic problems of the Colony than Her Majesty's advisers in England, would think it desirable that an ordinance should be enacted which was ultra vires the local Legislature. We see no reason why the Legislative Council should not pass a Bill accordingly and ask the Governor to seek the necessary power to enable him to assent or to seek the removal of any obstacle to assent. That may not be an ideal way of achieving the desired end but we do not see that it involves any illegality. No repugnancy could arise until the Governor assented to a Bill which was ultra vires the Legislature to pass. We see no justification for relating back to the proceedings in the Legislative Council any invalidity which may subsequently affect an enacted Bill. One would indeed hesitate to apply to the Legislative Council the rules of the criminal law relating to principals in the second degree and accessories before the fact, or the doctrine of trespass ab initio.

31. We hold that the relief requested in the first paragraph of the endorsement on this Writ cannot be granted because it is not, in our view, "unlawful" for the Legislative Council of Hong Kong to pass a Bill that contains provisions which, if and when the Bill is assented to and becomes an ordinance, will be in conflict with the provisions of the Copyright Act of 1911 and such provisions of the 1956 Act as may apply in Hong Kong. Whilst the provisions of the ordinance would, in such circumstances, be void and inoperative in Hong Kong, as a result of Section 2 of the Colonial Laws Validity Act, the actions of the Legislative Council in entertaining such a Bill and giving it a first, second and third reading would not, in themselves, be unlawful though they might well be a waste of time.

32. For these reasons we would strike out the first paragraph of the endorsement and it is clear that if the first paragraph is struck out as affording no ground of action, the relief prayed in the second and third paragraphs could not be granted. Consequently, they should also be struck out.

33. In conclusion on this aspect of the case, we would add that we rest our decision on the constitutional basis that there would be nothing unlawful in the Legislative Council's doing what is complained of and we do not concern ourselves with the motive of the plaintiffs. The summons alleges that the reliefs were "designed" to interfere with the legislative process. Nothing has been said which leads us to believe that this suggestion could be established but it is sufficient that the reliefs would so interfere and, more important, that there is no legal justification why the court should intervene.

34. The conclusion we have reached on the first ground of this Summons makes it unnecessary to deal with the other two grounds but it may be desirable if, as we understand is likely, this matter is to be taken to a higher tribunal that we should endeavour to deal very briefly with them although the virtual vacuum created by our finding on the first ground makes it difficult to assess and determine the precise nature of the hypotheses which would underlie the second ground. Nevertheless, we think it may be helpful to indicate briefly how we would have approached this issue if we had thought that the passing of a Bill by the Legislative Council could be "unlawful" on the grounds stated in the Writ.

35. In the case of Hughes and Vale Proprietary Ltd. v. Gair⁽⁸⁾, already mentioned, the High Court of Australia dealt very forcefully with a claim to an injunction which was sought on grounds similar to those in respect of which a declaration and injunction are sought in the present instance, when they said:-

"We do not think it should be granted on this occasion or later or in any case".

We do not think we would be prepared to go quite so far. Moreover we appreciate that judicial pronouncements on the extent to which the courts will regard the presence of a hypothetical element as a bar to relief have been closely identified with or related to the historical reluctance of the courts to give judgments that were merely declaratory without the accompaniment of any other relief: a reluctance which is tending to melt before new currents of legal opinion and under the impact of new rules of court which make declaratory judgments more readily available. It may be that, in such circumstances, the limits which the courts have hitherto imposed on themselves or observed in regard to dealing with hypothetical issues may be somewhat relaxed. Nevertheless, we are satisfied that we would go beyond the limits which the courts have hitherto observed if, on the grounds set out in the Writ, we were to make, whether in the exercise of discretion or otherwise, the declaration sought by the plaintiffs and that it would be wrong to make it or to issue the injunction they request.

36. We would be disposed to re-echo the words of Lord Justice Cohen in dealing with an analogous question in the case of Re Barnato⁽¹⁰⁾ where he said:-

"Counsel for the plaintiffs and counsel for the beneficiaries submitted that it was not really a question whether or not this was the type of case in which the court could entertain proceedings against the Crown, but was really a question of discretion. I do not think that is true, but, even if it were true, I am by no means satisfied that we ought to allow the proceedings to go on if it were abundantly clear as, in my opinion, it is in the present case, that the court would not make a declaration after the case had been heard."

We appreciate the distinction drawn by counsel for the plaintiffs between a case where, as in Barnato's⁽¹⁰⁾ case, the hypothetical nature of the issue depended on possible action by the person claiming relief and a case where the hypothesis was that some other person would act in a particular way. We do not think that that distinction is material since the basis of the dictum was that the action was manifestly doomed to failure from the start. We nerely say that, as at present advised, we cannot conceive of circumstances in which a court would be willing to grant a declaration against the Legislative Council which would inhibit either the passing of a Bill or its presentation for the Governor's assent on the ground of its contents.

37. We come finally to the contention that the claim to injunctions should be struck out upon grounds that the proceedings are either against the Crown or against officers of the Crown and the effect of granting an injunction would be to give relief against the Crown which could not have been obtained in proceedings against the Crown. The contention that the case falls within sub-section(1) of Section 16 of the Crown Proceedings Ordinance has been touched upon earlier. The Solicitor General argues thus: the Sovereign has delegated the power to legislate for the Colony to the Governor "by and with the advice and consent of the Legislative Council"; the Governor is appointed as an instrument of the prerogative power and the Legislative Council is created as an instrument for helping the Governor to make law; therefore the Legislative Council would be itself exercising a prerogative power and is a part of the Crown. We have already considered the constitutional position of the Legislative Council but although we think the council is properly to be regarded as part of the Legislature we do not think it follows that the members of the Legislative Council are themselves the Crown within the meaning of the statute. In Attorney General for New South Wales v. Trethowan⁽⁷⁾ one has an example of some members of a Legislative Council suing for relief against other members of that Legislative Council. Is it to be said that that was an action by the Crown against the Crown? Yet if the Legislative Council as part of the Legislature is the Crown, it would seem to follow that every member of the Legislative Council, as part of such part, must be the Crown in relation to his acts as a member. Nor are we persuaded that the part played by the Legislative Council in the legislative process is the exercise of a prerogative power. The task committed to it is to give the Governor advice and consent and the giving of such advice and consent is not a function of the prerogative: the Crown has no prerogative to advise and authorize itself.

38. The matter can be looked at in another way. In Metropolitan Meat Industry Board v. Sheedy⁽¹¹⁾ the question was whether a debt due to the Board from a company in liquidation was:

"one due to the Crown, so that it falls within the prerogative right of the Crown to priority of payment as against the general creditors of the debtor. If it does so this can only be on the footing that the prerogative of the Sovereign extends to a body such as the appellant Board." .

The board was the creature of statute and not of the prerogative but fo our purpose that is irrelevant and the important issue was whether what the board was doing was an exercise of the prerogative. It was decided that because the powers conferred upon the board were "given to it to be exercised at its own discretion and without consulting direct representatives of the Crown" it ought not to be held that the board were acting mainly, if at all, as servants of the Crown acting in its service. Equally we think the Legislative Council, and the members of the Council as such, cannot be said to be servants of the Crown or otherwise caught by the definition of "officer" in Section 2(2) of the Ordinance and that, in this connection, there is no material distinction between "servant" and "officer". Even if one regarded the function of the Legislative Council as being more than the giving of advice and consent and as being the making of laws the same reasoning would preclude the Council's being regarded as servants of the Crown.

39. Does the case then fall within sub-section (2) of section 16 of the Ordinance? It has not, as we understand it, been seriously contended by the Solicitor General that the defendant is, for the purposes of this action, in any different position from an Unofficial Member of the Legislative Council who does not hold an office of profit under the Crown. He is sued as a councillor but it is said that in such capacity he is an officer of the Crown in that he is one of the "working and speaking parts" of an instrument set up under the prerogative. We find difficulty in accepting this argument. " An officer of the Crown " must, as it seems to us, be a person who holds office under the Crown and there is, we think, significance in the distinction drawn in Clause 13 of the Royal Instructions between those who are to be styled "Official Members" of the Legislative Council and those who are to be styled "Unofficial Members", The Clause prescribes that the former, apart from the exofficio members, shall be "other persons holding office under the Crown in the Colony". It is not expressly provided that those styled "Unofficial Members" shall be persons who do not "hold office under the Crown in the Colony" although the style itself may imply such a distinction. What is more significant is that an Official Member who shall "cease to hold office under the Crown in the Colony" vacates his seat upon the Council under the provisions of the second paragraph of Clause 13 and, if he holds office under the Crown by virtue of his membership of the Council, the paragraph would be meaningless. The same phrase does not necessarily have the same meaning in different pieces of legislation but we see no reason to think that a different connotation was intended here.

40. This leads us to the conclusion that members of the Legislative Council as such are not officers of the Crown by virtue of their membership and that is enough to defeat the application under the third paragraph of the summons. It is further argued for the plaintiffs that the order asked would not have the effect of giving relief against the Crown. This, we think, is more questionable. The consent of the Legislative Council is a condition precedent to the making of laws in the Colony and the granting of an injunction against the Legislative Council would effectively prevent the exercise of the legislative power. Assuming we are wrong in holding that members of the Legislative Council are not officers of the Crown and again assuming that the Crown includes the legislature for the purposes of the Ordinance, we would hold that the case falls within Section 16(2). As it is, against the first defendants we would not strike out the second relief claimed in the Writ on the ground set out in paragraph (c) of the summons.

41. That leaves the claims against the second defendant. We think we may and should take judicial notice of the fact that he is the Deputy Colonial Secretary. He is not sued as a member of the Legislative Council and in so far as relief is claimed to prevent the passing of a bill or ordinance it could not be granted against him. What is apparently sought against him is an injunction to prevent him, either as a private citizen or as an officer of state, from conveying a bill from the Legislative Council and presenting it to the Governor for his assent. The grounds for claiming such relief are the same as those which have already been considered in relation to members of the Legislative Council and we think the claim against him must fail for substantially the same reasons as the claims against the first defendants. To the extent that he is an officer of state, there is however an additional ground that he is an officer of the Crown within the meaning of Section 16(2) of the Crown Proceedings Ordinance and an injunction could not be granted against him. Nevertheless a declaration could have been made if it had been appropriate. To the extent that the second defendant might be sued as a private citizen it is inconceivable that the injunction asked for would be granted against him. As against the second defendant, therefore, we would make an order striking out the second relief claimed.

In conclusion, we would emphasize that the effect of this ruling is only to indicate that the present proceedings are, in our view, premature and questionable in form. If ever a Bill of the nature indicated in the Writ comes to be enacted into law and to conflict with the United Kingdom legislation extended to Hong Kong, the plaintiffs, in the words used by the Chief Justice of Australia in the Hughes and Vale Proprietary Ltd. v. Gair case(8) will have their remedy and, if they think fit to apply, the courts would not be slow to intervene when a case has been made out.

Representation:

Wells Q.C., Skone James and Wright (Brutton and Co.) for Plaintiffs.

Sneath S.G., Hogg and Hoosen C.C. for 1st and 2nd Defendants. Ruling read on 7.6.68.

(1) (1966)2 Q.B. 633

(2) (1911) 1 K.B.D. 410.

(3) (1913) A.C. 107.

(4) (1919) A.C. 687.

(5) (1965) A.C. 172

(6) (1920) A.C.691

(7) 44 C.L.R. 394 at 425

(7) 44 C.L.R. 394

(8) 90 C.L.R. 203

(9) 105 C.L.R. 214: (1961) Australian Argus Law Report,.

(10) (1949) 1 A.E.R.515 at 520

(11) 1927 A.C. 899 at 902

HCA000507/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 507 OF 1968

-----------------

BETWEEN
	REDIFFUSION (HONG KONG) LIMITED	Plaintiffs
	AND
	SIR DAVID C.C. TRENCH K.C.M.G., M.C.M.D.I. GASS, C.M.G., J.P.D.T.E. ROBERTS, O.B.E., Q.C., J.P. for and on behalf of themselves and all other members of the Legislative Council of Hong Kong	1st Defendants
	GEOFFREY CATZOW HAMILTON	2nd Defendant

Coram: Hogan, C.J., Huggins, J.

Date of Judgment: 1 June 1968

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Decision on Summons to set aside Writ under o.12 r.8

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1. In this case the plaintiffs sought relief set out in their writ, issued on the 10th April, 1968, in the following terms:-

	"1.	A declaration that it would not be lawful for the Legislative Council of Hong Kong to pass an Ordinance provisionally entitled 'A Bill to modify the Copyright Act 1956, in its application to Hong Kong and to make further provision with respect to copyright law in Hong Kong' such Ordinance being ultra vires the Legislative Council of Hong Kong having regard to the terms of Section 31(3) of the United Kingdom Copyright Act 1956 as extended (or proposed to be extended) to Hong Kong and repugnant to the provisions of that Act as so extended (or proposed to be so extended).
	2.	An injunction to restrain the First Defendants and each of them and every other member of the Legislative Council of Hong Kong and the Second Defendant by themselves their respective servants or agents or otherwise howsoever from passing the said Ordinance and from presenting it to the Governor of Hong Kong for his assent.
	3.	Further or other relief.
	4.	Costs.".

2. The plaintiffs are a company registered in Hong Kong (hereinafter called "the plaintiffs" or "the Company") and a wholly owned subsidiary of a United Kingdom company. According to an affidavit (hereinafter called "the affidavit") sworn on the 18th April, 1968 by Mr. George Henry Oldridge, the company, of which he is Managing Director, has been carrying on the distribution of broadcast programmes by wire over its distribution system in Hong Kong since about 1947 and the company now distributes sound and television programmes on a commercial basis, the majority of the sound and all the television programmes being originated by the company and certain of the sound programmes being originated by others. The programmes are distributed under licences issued under the Telecommunications Ordinance, issued for sound in 1965 and for television in 1957, both being due to expire on the 13th April, 1973.

3. The sound licence gave to the company:-

"the exclusive right to distribute broadcast messages and programmes, specially intended to be received by the public in general, by means of wires connected to the premises of other persons in the said Colony ........... and to the intent that the subscribers may receive in their respective premises such broadcasts, messages and programmes as transmitted from broadcasting stations included in the official list of broadcasting stations issued by the International Telecommunications Union at Geneva.........".

4. Similarly, the television licence gave to the company:-

"	(b)	the exclusive right to maintain a service to the public consisting of television programmes and matter ... by means of wires connected to the premises of other persons in the said Colony, and
	(c)	the right to establish, maintain and work television broadcast receiving station or stations....... and to relay from the distribution station any television programme broadcast from any broadcasting station included in the official list of broadcasting stations issued by the International Telecommunications Union at Geneva.".

5. In August, 1965 the company applied for a licence to broadcast under Section 7 of the Television Ordinance, 1964 but the application was not accepted and a licence was granted to Television Broadcast Limited (hereinafter called "TVB") another company registered in Hong Kong.

6. According to the affidavit, however, satisfactory reception of television signals cannot, because of the mountainous terrain and density of population with many tall blocks of flats and offices, be achieved in many areas of Hong Kong without transmission through wires or the use of special aerials erected on such blocks of flats and offices and in other shadow locations, such aerials being connected by wires to the television receivers.

7. It is desirable at this point to refer to certain expressions which have played a prominent part in the argument before us.

8. The first of these is "relay". According to the documents annexed to the affidavit, "relay" means the reception by an aerial of broadcast matter, be it sound, radio or television, and the re-distribution of this matter by means of a wired network to the premises of persons who either cannot, through technical reasons (such as "shadows") receive the broadcast matter directly by their own individual receivers, or cannot, or choose not to, bear the expense of purchasing a receiver and aerial. The other is the expression "Communal Antenna Television Systems" (CATV), an expression which is said to have originated in America but is now generally understood in Hong Kong to mean aerial devices placed on the roofs of buildings by means of which broadcast television transmissions are received and then re-distributed by means of wires connected to the television receivers or terminal units of individuals in the various parts of the buildings. The need for CATV systems is said to arise, as it does for any other form of relay, where, for technical reasons (usually "shadow areas"), reception of broadcast television by means of ordinary individual receivers is not possible or practical.

9. It is claimed that "a relay system is for all intents and purposes the same as a CATV system. Conversely, a CATV system is a relay system; so much so that the expression 'CATV' and 'relay' are in practice synonymous, the former expression having greater currency in the United States and the latter in the United Kingdom."

10. It is also desirable to note that the sound and television licences of the company contained references to copyright which, in the latter, are expressed as follows:-

"	17. (1) Except when it is known to be contractually permissible to do so the licensee shall not record, reproduce, publish or otherwise disseminate or allow to be recorded, reproduced, published or otherwise disseminated any matter sent for general reception by any broadcasting station and received by means of the broadcast receiving station.
	(2) It is hereby declared that nothing herein contained authorizes the licensee to do any act which is an infringement of any copyright which may exist in any published programme or other printed matter or in any matter received by means of the broadcast receiving station.".

The plaintiffs maintain that at the date of the licence there was no such station the television broadcasts of which could have been received and distributed by rediffusion; that the rights just mentioned were intended to be exercisable at some future date; and that the opportunity to exercise them has only now emerged with the advent of another broadcasting service.

11. The affidavit points out that the 1956 Copyright Act in the United Kingdom created, for the first time, a separate copyright in a broadcast distinct from the underlying copyright in the works broadcast but, under the provisions of the Act, to relay a broadcast is not an infringement of the copyright in the broadcast itself, though it could, subject to Section 40(3), be an infringement of the copyright in the works broadcast. Causing the broadcast "to be transmitted to subscribers to a diffusion service", is not included in the list specified by Section 14(4) of "restricted acts", which are to be breaches of this new copyright. Consequently in the United Kingdom, the relay of broadcasts is treated in a manner different from the relay of other copyright matter.

12. Section 31 of the 1956 Act empowers the Queen to extend the Act by Order in Council to Hong Kong and other territories, and in that event sub-section (3) authorises the local legislature to:-

"	.................modify or add to those provisions, in their operation as part of the law of that country, in such manner as that legislature may consider necessary to adapt the provisions to the circumstances of that country:
	Provided that no such modifications or additions, except in so far as they relate to procedure and remedies, shall be made so as to apply to any work or other subject-matter in which copyright can subsist unless - .............................................

(d)

in the case of a television broadcast or sound broadcast, it was made from a place in that country.".

13. The affidavit states that about September 1967 the company learned that the United Kingdom Government intended to extend the 1956 Act to Hong Kong by Order in Council and, also, that the Hong Kong Government intended to introduce an Ordinance to modify the provisions of the Act as extended to Hong Kong. To the affidavit are exhibited copies of a draft Order in Council and a draft Ordinance, which had been sent to the company by the second defendant in the course of correspondence which is also exhibited. The Order in Council, as drafted, proposed to extend Sections 14 and 31(3) of the 1956 Act to Hong Kong but not to extend Section 40(3). The provisions of the Ordinance caused great concern to the company because it purported by Clause 4 to define a television broadcast as having the meaning assigned to it by Section 14 of the 1956 Act and also as meaning:-

"visual images transmitted to the premises of subscribers to a diffusion service over wires or other paths provided by a material substance, together with any sounds transmitted along with those images.".

This, the affidavit claims, was clearly an attempt to enlarge the definition in the 1956 Act and neither a modification or addition relating to procedure or remedies nor otherwise consistent with the requirements of the proviso to Section 31(3) of the 1956 Act. Moreover, Clause 4(2) seeks to provide that it should be an act restricted by the copyright in a television broadcast to broadcast it or cause it to be transmitted to the premises of subscribers to a diffusion service over wires or other paths provided by material substances. This is claimed to be an enlargement of the copyright in television broadcasts as such, since it includes an act which is not restricted by Section 14 of the 1956 Act, and to be in excess of the powers conferred by Section 31(3).

14. The affidavit claims that the effect of passing the Ordinance in this form would seriously affect the company's rights under its licence and would create a position different from that in the United Kingdom and one which, so far as Mr. Oldridge is aware, would differ from that in any other country to which the provisions of the 1956 Act have been extended.

15. He was, he said, advised that it would be unlawful for the Legislative Council of Hong Kong to pass such an Ordinance, as being ultra vires and/or repugnant. Consequently, the company entered into correspondence with the second defendant and it is claimed that in the course of that correspondence the Hong Kong Government vacillated, having first indicated an intention to include then exclude and finally to include the controversial Clause 4(2). It is suggested this vacillation resulted from pressure by TVB. It is also said that the correspondence indicated that the Government and its spokesman, the 2nd Defendant, were not fully aware of the significance of what they were purporting to do or the rights they were purporting to alter.

16. The affidavit states that Clause 4, by creating copyright in the broadcasts themselves as distinct from the copyright in the works broadcast would completely change the position so far as the company is concerned, because if Clause 4(2) becomes law the company would need to clear with their rival the copyright in the broadcasts of TVB quite apart from any copyright in the works broadcast. The affidavit claims that there is no justification for thus altering the law of copyright as it is currently enforceable in the United Kingdom; and that if the British broadcaster has no such right it is difficult to see why a Hong Kong broadcaster should be entitled to it: reference is made in this connection to the European Convention on the Protection of Television Broadcasts which the affidavit says has been ratified by the United Kingdom subject to a reservation withholding in respect of television broadcasts the right to the broadcaster to authorise or prohibit the diffusion of such broadcasts to the public by wire.

17. The present proceedings do not purport to seek any relief in regard to the proposed Order in Council and seek only to declare illegal, and restrain action by the Legislative Council on, the draft local legislation.

18. The defendants have taken out a summons in which they seek the following order:-

"	(a)	that the writ of summons herein be set aside upon the grounds that the said writ seeks reliefs outside the jurisdiction of this Honourable Court, namely reliefs designed to prevent members of the Legislative Council from proceeding with a lawful part of the legislative process of Hong Kong; and further and in the alternative
	(b)	that the writ of summons herein be set aside upon the grounds that the said writ seeks reliefs outside the jurisdiction of this Honourable Court, namely -

	(i)	in that the said writ seeks a declaration as to hypothetical and future questions to which declaration the Plaintiffs have no right; and
	(ii)	in that the said writ seeks an injunction the granting of which is prohibited under section 16 of the Crown Proceedings Ordinance.".

19. It is on this summons that we have heard argument by the Solicitor General for the defendants and by Mr. Wells, of Her Majesty's counsel in England, on behalf of the company. In support of his first ground, the Solicitor General referred to the instances in which the Courts in England had been prepared to interfere, or had considered interfering with the Parliamentary process in the United Kingdom. They involved a sovereign legislature - and that is necessarily different from the legislature with which we are concerned here - but, he submitted, they were relevant to the problem before us as indicating how slow the courts should be to interfere with the legislative process. He claimed that interference arose only in two classes of case: the first arose from some allegedly wrong step in the actual legislative process itself, and, as an illustration of that class, he referred us to Harper and Another v. Secretary of State for the Home Department⁽¹⁾.

20. The second class of case in which the courts were, the Solicitor General said, prepared to consider interference in the United Kingdom arose when it was suggested that some individual or body was acting inequitably in seeking the enactment of a private Bill. In such circumstances the courts would be prepared, or at least had been asked, to interfere, and had entertained the possibility of interfering. He referred us to the case of Bilston Corporation v. Wolverhampton Corporation⁽²⁾ as an example of this class of case, and to an article in Vol. 59 of "Law Quarterly Review" by Professor Holdsworth which expressed the view that although there was perhaps such a jurisdiction in regard to private Bills it was a highly suspect jurisdiction. At page 2 of the article, a number of cases where this jurisdiction was said to exist but where in fact no relief was given are conveniently collected. The Professor observed:-

"A principle which the Courts have consistently refused to apply is obviously suspect. In fact it is unsound because it rests on a mistaken analogy to the issue of a common injunction.".

He ended by suggesting that the courts really would have been wiser if, declining to follow earlier dicta, they had finally asserted that there was no such jurisdiction.

21. The Solicitor General then referred to one of the cases mentioned in that article, Heathcote v. The North Staffordshire Railway Company⁽³⁾ where, the jurisdiction having been exercised by the Vice-Chancellor, the Lord Chancellor dissolved the injunction which had been issued but, in the course of deciding to dissolve it, made a statement which is highly indicative of the attitude taken by the courts in England on this question. He said:-

"Upon the first, it has been suggested that this Court could not interfere without infringing upon the privileges of Parliament; so the Courts of Common Law thought at one time; and there is as much foundation for the one as for the other supposition.

In both cases, this Court acts upon the person, and not upon the jurisdiction. In a proper case, therefore, I have said here and elsewhere that I should not hesitate to exercise the jurisdiction of this Court by injunction, touching proceedings in Parliament for a private Bill or a bill respecting property; but what would be a proper case for that purpose it may be very difficult to conceive.".

The Lord Chancellor went on to point out that interference was not justified merely because the Bill in question was seeking an alteration in private rights. Parliament, he said, was supposed to be a place where rights could be altered by legislation, retrospectively if necessary.

22. The Solicitor General also directed our attention to the case of Merricks v. Heathcoat-Amory⁽⁴⁾ where a mandatory injunction was sought commanding the withdrawal from both Houses of Parliament of a draft scheme alleged to be ultra vires the Act under which it purported to be made. Possibly the Solicitor General mentioned this case more for the purpose of illustrating the position through the argument of counsel than for the actual decision itself, because the learned judge, Mr. Justice Upjohn, concluded his ruling by saying:-

"A number of other points of great interest have been argued. Among them was the question whether the court had any jurisdiction and, if so, whether it would be proper in any event to interfere with the proceedings now before Parliament by making an order on the Minister to withdraw the draft scheme or restraining him by order from seeking approval of the scheme.".

He went on:-

"I say no more than this, that I see much force in the arguments put forward by the Attorney General; but in this delicate and difficult branch of the law it is much better not to express an opinion on any matter which does not directly arise for decision.".

The application was dismissed on the ground that the Minister was acting as a Minister of the Crown and no injunction could issue, but the learned Attorney General in the course of his argument in the case had suggested that if the Order sought had been granted, it could amount to an interference with the privileges of Parliament and might indeed be a contempt of Parliament. Mr. Walker-Smith, Q.C., arguing on the other side, said (p.571) :

"To restrain a person from seeking the approval of Parliament, or either House thereof, of a defective scheme, ultra vires the enabling Act, is not to trespass upon or derogate from the sovereignty of Parliament or the right of Parliament to control its own proceedings. In relieving Parliament from the risk of having presented to it for approval by resolution a scheme which is ultra vires, the interference of the court renders a service not only to the parties but to Parliament:".

The case aptly illustrates the conflicting points of view.

23. Mention was made of the Introduction to the 10th Edition of Dicey, by Professor Wade - where he expresses a view on page 44:-

"That the judicial process does not lie where Parliament has exclusive jurisdiction has been recognised by decisions of the courts both in the field of privilege and in Private Bill legislation.".

The Professor went on to claim support for this view from his analysis of the Harper⁽¹⁾ and Bilston⁽²⁾ cases as well as in a passage from Bradlaugh v. Gossett⁽⁵⁾.

24. The Solicitor General then turned to the question of a non-sovereign Parliament, such as the Legislative Council in Hong Kong, and referred us to decisions from New South Wales in Australia as falling into the first category, namely where some improper step was allegedly being taken. In Attorney General for New South Wales v. Trethowan⁽⁶⁾ the applicants contended that failure to refer a Bill to a referendum of the electors in New South Wales would invalidate the next step contemplated, the presentation of the Bill for assent, and they sought to have the respondents restrained from taking that step. Whilst this is a very well-known case, the Solicitor General contended it was not very material to the instant case because, although the questions at issue may, in the lower Courts, have involved one of jurisdiction, they were confined to the merits when the case came to the High Court of Australia and subsequently to the Privy Council. At page 527 of 1932 A.C., the following passage appears:-

"Upon the hearing of the motion, it was demurred to by the defendants upon the grounds (1.) that s.7A, sub-s.6, of the Constitution Act, 1902, was invalid; (2.) that no facts were alleged which gave the plaintiffs any ground for equitable relief; (3.) that having regard to the object of the suit it was not competent.".

The 3rd question was, the Solicitor General said, excluded from consideration by the higher courts. Moreover, he claimed, the value of the case is considerably impugned by subsequent references to it made in Australia, primarily the reference by Sir Owen Dixon, C.J., as he was subsequently, in the case of Hughes and Vale Proprietary Ltd. v. Gair⁽⁷⁾ where he threw doubts on the decision in so far as it can be regarded as a decision at any stage on the question of jurisdiction.

25. The Solicitor General then directed attention to observations on Trethowan's⁽⁶⁾ case and the case of McDonald v. Cain⁽⁸⁾ made by Professor Zelman Cowen in 71 Law Quarterly Review, page 341, where he said:-

"These two recent cases have served only to increase the doubts raised by Long Innes, J. in Trethowan v. Penden⁽⁹⁾ as to the propriety of judicial interference with parliamentary process even where the legislature has itself pointed to the act of presentation as the illegal act. Such a form of drafting might be thought to invite judicial intervention at that stage. Yet if the view put forward by Dixon C.J. in Hughes and Vale Proprietary Ltd. v. Gair⁽⁷⁾ prevails, so that even in such a case a court will refuse to intervene, it would seem to follow that no conceivable form of drafting can empower the courts to intervene by injunction (or presumably by declaration) at this stage of the parliamentary process.".

It was urged that similar doubts as to the propriety of judicial interference are indicated by certain observations made in the subsequent rather lengthy case of Clayton v. Heffron⁽¹⁰⁾, particularly the passage which appears at page 265, where Mr. Justice Kitto said:-

"Considerations of convenience have been thought to justify our expressing our opinions upon that question without staying to decide whether an answer to it favourable to the plaintiffs would have entitled them to any relief in the Supreme Court.".

26. Finally, the learned Solicitor General returned to the English authorities by referring us to the following passage in Hanbury's Modern Equity, 8th Edition page 609:-

"It is submitted that the Court of Appeal was wrong in the Harper⁽¹⁾ case in admitting the possibility of the jurisdiction to restrain a legislative proposal. The cards stacked against it are too strong................................................

(c)

Matters brought before Parliament must be allowed to repose in the legislative sphere, into which the judiciary cannot intrude.

It was consideration (c) that led Holdsworth to deny the jurisdiction to issue an injunction to restrain an application for or opposition to a private Bill, where the proceedings are admittedly akin to judicial proceedings." .

Over the page reference is made to the view expressed by Mr. Justice Simonds, as he then was, in the Bilston⁽²⁾ case, that whilst acknowledging the jurisdiction it was difficult to imagine a case in which it would be exercised. The author suggests that the existence of the jurisdiction is supported by the observations of Evershed, M.R. in Harper's⁽¹⁾ case but adds:-

"It is difficult to avoid the comment that the courts seem determined to keep alive in theory something that it will always be impracticable to use in practice.".

27. Against the background of these authorities, the Solicitor General turned to the precise terms in which the writ in this case sought relief. It requests a declaration that it would not be lawful for the Legislative Council of Hong Kong "to pass an Ordinance, provisionally entitled 'A Bill to Modify the Copyright Act 1956' ". Having stressed that the subject matter of the application is identified only by that description, he went on to argue that the Legislative Council in Hong Kong, under the provisions establishing it, the Letters Patent and the Royal Instructions, does not pass Ordinances: what it does is to pass Bills, which do not by the mere act of the Legislative Council move into the sphere of legislation, but remain in the sphere of advice and permission given to the Governor in Hong Kong to enact legislation in the terms of such Bills if he thinks it appropriate to do so; that the action of members of the Legislative Council in debating a measure of this kind and in expressing their views on it is certainly not an illegal act, because, not until the document, the Bill, reaches the stage of legislation - not until the moment of enactment - could it be alleged that there was any illegality through conflict with the Copyright Act. He stressed the indication in Mr. Oldridge's affidavit that the document in question has not even reached the stage of being a Bill, but is no more than a draft. It will, he said, only become a Bill when it receives a first reading from the Legislative Council. He argued that by seeking a declaration from the court at this stage the plaintiffs are seeking to interfere with a lawful activity of the Legislative Council. When asked how a declaration would interfere, he said that it would inhibit debate in the Council: members would feel impeded if they had "hanging over them" a declaration by this court that this particular measure is or would, at a later stage, become invalid. The court, he said, should make no such declaration because it had no jurisdiction in this field. If we understood him rightly, at a later stage in his case he put his submission in a slightly different form: he said that he was asking us "not to entertain jurisdiction" in this field and emphasized that the proper time for challenging the validity of this measure, if it ever reaches the Statute Book, is after enactment, as shown by the observation of Sir Owen Dixon, C.J. in the Hughes⁽⁷⁾ case.

28. In answer to these arguments, Mr. Wells referred us first to the opinion of the Privy Council in Bribery Commissioner v. Ranasinghe⁽¹¹⁾ on appeal from Ceylon where the Board said:-

"A legislature has no power to ignore the conditions of lawmaking that are imposed by the instrument which itself regulates its power to make law.".

This view was expressed to apply whether the legislature was sovereign or not, but the principle is clearly applicable, Mr. Wells said, to Hong Kong, where the legislature is non-sovereign, and where its powers are limited not only by its own constitution but by the power of the Queen in Parliament to enact laws which the local legislature has no power to alter or change; laws which make void and inoperative any local legislation with which they conflict. He argued that the Trethowan⁽⁶⁾ case provides powerful authority for the proposition that, in dealing with the non-sovereign Legislative Council of Hong Kong, the courts have jurisdiction to entertain the relief sought by the plaintiffs here. He contended that this was implicit in the decisions in that case both of the High Court of Australia and of the Privy Council; because if there had been any question of jurisdiction that point would have been raised.

29. We find some difficulty in ascertaining from the report in 1932 A.C. to what extent this question of jurisdiction figured in the decisions of the various courts concerned. Clearly the judge of first instance must have been satisfied that he had jurisdiction or he would not have entertained the application, and subsequent references in the Hughes⁽⁷⁾ case indicate that the question must have been raised in some form at a higher level, because counsel there said:-

"In Trethowan's⁽⁶⁾ case there were five judges in New South Wales who took the view that jurisdiction existed.".

This seems to be borne out by a reference in 71 L.Q.R. (p.337) where Professor Zelman Cowen said:-

"The case raised a number of important points but the question of the availability of the injunction was considered only in the Supreme Court of New South Wales. The terms on which the High Court permitted appeal precluded further consideration of this question.".

30. Having relied strongly on that decision, Mr. Wells drew attention to Montreal City v. Montreal Harbour Commissioners⁽¹²⁾ as indicating that where relief of the kind in question here is sought it should be sought promptly, lest at a later stage his clients should find themselves faced with a contention that they had waived their rights. He emphasized that, on the present summons, the simple question is whether we have jurisdiction, and that we are not concerned with the issue whether that jurisdiction should, in the circumstances now put before us, be exercised or not.

31. In answer to the Solicitor General's contention that what the Legislative Council would be doing - if and when it considers the document which has been furnished to the plaintiffs as a draft Bill - would be a perfectly legal operation. Mr. Wells argued that although it might not be strictly an error in procedure yet if the Legislative Council should take under consideration, and seek to pass as a Bill, something which if and when it gets to the Statute Book would be illegal, all the proceedings up to that point would be tainted proceedings and, consequently, illegal. He said that the distinction which the Solicitor General was seeking to draw between a step in the legislative process and the consideration of tainted subject matter, i.e. a Bill leading to an illegal Ordinance, was not a distinction which could be supported. He submitted that all preliminary steps would be tainted by the subsequent illegality which would supervene if and when the document came to be enacted as legislation.

32. We do not think that the doctrine of the separation of powers, in so far as it is recognised in England, or any other relevant doctrine compels us to hold that we have no jurisdiction under any circumstances to grant an injunction against the members of the Legislative Council. If we were to be satisfied that the Solicitor General is right in his main contention that nothing illegal on the part of the defendants is in contemplation, that would not mean that we had no jurisdiction to enter upon and determine such an issue but simply that there was no occasion for granting relief; we would be precluded from granting it by the absence of grounds for intervention. Turning to his contention that we should not entertain jurisdiction, it may be that there is only a very fine distinction between holding that there is no jurisdiction to give the relief asked and saying that the relief asked is such that the court is unlikely ever to give it. Yet it seems to us that it is a distinction we must recognize. If, as the Bribery Commissioner's⁽¹¹⁾ case so clearly showed, the validity of the legislative process can be subsequently examined and pronounced upon then, leaving aside for a moment the factor of the "hypothetical question", it would seem illogical to say that there is no jurisdiction to pronounce on its prospective exercise. Consequently, we would not set aside the writ on the first of the grounds set out in the summons.

33. We turn then to the second ground. This is divided into two parts: first that the writ seeks a declaration as to hypothetical and future questions and, secondly, that the injunction sought is prohibited under section 16 of the Crown Proceedings Ordinance.

34. Now, in support of the first of these contentions the Solicitor General drew attention to the procedure and the powers prescribed for the Legislative Council by the Letters Patent and the Royal Instructions under which it operates. He stressed the limited role of the Legislative Council, which he described as being "powerfully permissive" with regard to legislation, in that the Governor could not enact legislation without having received the Council's prior advice and consent although he was not under any obligation to enact a measure because it had passed through the Legislative Council as a Bill; he is given a discretion in the matter and, in certain instances, is enjoined not to pass measures which have come through the Legislative Council. In this connection the Solicitor General drew particular attention to Clause XXVI of the Royal Instructions though we would say in passing that we are doubtful whether his argument on this clause was well-founded as the reference in it to measures repugnant to "the law of England" may embrace law which is not extended to Hong Kong.

35. The Solicitor General referred to the case of Re Barnato⁽¹³⁾ as showing that where the matters put before the court are hypothetical the court has no jurisdiction to enter into them and make a declaration of the rights and obligations which would arise if the hypothetical suppositions should come to pass. He placed particular reliance on the observation by Lord Justice Cohen, as he then was, when he said:-

"Counsel for the plaintiffs and counsel for the beneficiaries submitted that it was not really a question whether or not this was the type of case in which the court could entertain proceedings against the Crown, but was really a question of discretion. I do not think that is true, but, even if it were true, I am by no means satisfied that we ought to allow the proceedings to go on ..............".

Mr. Wells subsequently discounted that passage by saying that it was obiter and merely an expression of doubt and nothing more; a description which could not, however, apply to a subsequent observation by the Master of the Rolls, Lord Greene, who concluded his judgment by saying:-

"In my opinion, if it is desired that these courts should have power to decide hypothetical questions on the construction of taxing Acts for the guidance of the subjects of the King, that power ought to be given by legislation and not by this court arrogating it to itself.".

The Solicitor General argued that the word "power" in that passage should be equated with the expression "jurisdiction", so that the Master of the Rolls was clearly of the opinion that the court did not have jurisdiction to deal with hypothetical questions. He argued that just as in that case the court refused to act as legal advisers to trustees who were seeking advice with regard to a position which might arise in the future, the court in the present instance should not seek to act as legal advisers to the Legislative Council in regard to matters which might be put before them.

36. Reliance was also placed on Nixon v. Attorney General⁽¹⁴⁾ which dealt with an application by civil servants for a declaration of rights with regard to pensions. Clauson, J. said the courts were entitled to make declarations only in regard to legal rights and this view, which was, the Solicitor General claimed, endorsed by the Court of Appeal, would indicate that no declaration in the nature of advice to the Crown could be made where, in the absence of a legal right, "the foundation of the jurisdiction to make such a declaration........is gone".

37. He also referred us to the cases of Draper v. British Optical Association⁽¹⁵⁾ where the refusal of the declaration sought would seem to come close to the circumstances of the present case but where there are difficulties in reconciling the reasons advanced for the refusal with the actual terms of the declaration sought, and to Howard v. Pickford Tools Co. Ltd.⁽¹⁶⁾ where continued performance of a contract by an employee, after the other side had allegedly repudiated it, debarred him from obtaining a declaration as to what his rights would have been if he had accepted the repudiation. Neither case seems to throw much light on the question whether the refusal of relief should have been ascribed to lack of jurisdiction to grant it as distinct from the exercise of a discretion or a decision that the circumstances did not warrant relief. In the Howard⁽¹⁶⁾ case, Lord Evershed, M.R. said, with reference to the legislation which authorises the court to make declaratory judgments,:-

"Although Ord. 25 r.5, is most useful in the jurisdiction which it confers, and I am not anxious to put unnecessary limitations upon it, it is plain that it could not, and should not, be used so as to require the court to answer academic questions..........

I want to confine my observations strictly to the matter in hand, and I therefore prefer to say no more than that in this particular case, I am satisfied that the court ought not in the circumstances to entertain an action for a declaration of this nature..........this particular claim, with all respect to the judge who took a contrary view, is in my opinion beyond what I have called the intendment of the order, and I think that the action is one which the court could not properly entertain.".

Asquith, L.J. said:-

"I agree. An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind. Therefore a declaration that the defendants had repudiated their contract with the plaintiff would be entirely valueless to the plaintiff if it appeared at the same time, as it must appear in this case, that it was not accepted.".

At times the language used seems to suggest a lack of jurisdiction but the substance of the judgment appears to imply a decision on the merits.

38. That the courts have not been entirely consistent in their approach to this question would appear to emerge from the cases collected in a useful work entitled "The Declaratory Judgment" by I. Zamir to which the Solicitor General directed our attention and on which he relied for his contention that any of the following matters, each of which he argued was present in the instant case, would take it out of the jurisdiction of the courts:-

	(1)	that there is no dispute in existence;
	(2)	that the dispute is not attached to specific facts or that, in so far as the dispute is attached to specific facts, these facts are hypothetical, and
	(3)	the issue is not of any practical significance or the declaration can have no practical consequence.

39. Mr. Wells, on the other side, said that he had never seen the rule under which the summons was taken out - Order 12 rule 8 - used to obtain the relief sought in this case on grounds such as those advanced in the present proceedings. He claimed that the court should be very slow to stifle proceedings by using that rule to set aside a writ in any circumstances, and went on to maintain that far from the facts on which reliance was placed in the present case being hypothetical they were very certain; that it had been clearly indicated to the plaintiffs that it was the intention of the officers against whom relief was sought to introduce and pass legislation along the lines shown in Mr. Oldridge's affidavit; that if such legislation was introduced and enacted then the plaintiffs would suffer much damage and that it was of considerable importance to them now to know where they stood so that they would not incur the very heavy additional expenditure currently contemplated by the company but which would not be justified if they were going to be faced at a later stage by an enactment which would destroy the basis on which it had been planned.

40. He relied particularly on the decision in Guaranty Trust Company of New York v. Hannay & Co.⁽¹⁷⁾ for the proposition that the courts would make a declaration even though no cause of action had actually arisen at the time when the declaration was made. He went on to argue that Re Barnato⁽¹³⁾ (supra) was concerned with a remote contingency whereas in the present instance he and his clients are concerned with a very proximate contingency: an immediate prospect of something happening which would seriously damage them. He claimed there is a threat hanging over them and they are entitled to know where they stand in regard to it.

41. We have found this particular issue difficult. Some of the difficulty arises from the history of declaratory judgments themselves and the long standing reluctance of the English Courts to enter into this field. They have been slow to do so although they have been encouraged by the enactment of legislation in the form of rules of Court enabling them to make declaratory judgments in circumstances where they had previously declined to do so because the declaration was not annexed to any other claim for relief. In our consideration of the problem we have derived considerable assistance from Mr. Zamir's recent book⁽¹⁸⁾. It says:-

"The declaratory jurisdiction has sometimes been represented as virtually unlimited. Thus, in a recent case Denning L.J. (as he then was) said: 'I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose upon itself'.".

This observation, which is taken from Barnard v. National Dock Labour Board⁽¹⁹⁾, does raise a question whether a court can arbitrarily limit its jurisdiction as distinct from setting limits on the type of case in which, in its discretion, it will exercise an undoubted jurisdiction. The author goes on to refer to the statement by Mr. Justice Joyce in North Eastern Marine Engineering Co. v. Leeds Forge Co.⁽²⁰⁾ where he said:-

"To the operation of that rule" (i.e. o.25 r.5) "there must be some limitation. It cannot, I think, compel the Court to entertain any and every action for a declaration, and it cannot be that a claim for any declaration whatsoever it may be is a good ground of action.".

The author then proceeds to examine the limiting factors which the courts had observed in dispensing declarations and lists the factors already mentioned by the Solicitor General under the classification of theoretical issues, i.e. absence of a dispute in existence etc. In the layout of his book the author treats that as going to jurisdiction but in his text he says this⁽¹⁸⁾ :-

"Yet, though the courts have so far rejected all claims for declarations on theoretical issues, it is not entirely free from doubt whether they have done so because of lack of jurisdiction, or rather because they have objected, in their discretion and as a matter of practice, to making theoretical declarations.".

In a footnote on the same page, he says:-

"The view that the courts have no jurisdiction to declare upon theoretical issues may be supported by opinions expressed in Re Clay⁽²¹⁾ and in Re Barnato⁽¹³⁾. But in many other cases, e.g. in Re Carnarvon Harbour Acts⁽²²⁾ ............ and in Faber v. Gosworth Urban District Council⁽²³⁾ .................... in which the issues were clearly hypothetical, the courts, though declining to make the declarations, treated the claim as if it was within their jurisdiction and subject to their discretion.".

Elsewhere, in criticising the decision in Faber v. Gosworth Urban District Council⁽²³⁾ on other grounds, he brings out very clearly the great advantage which would have accrued to the plaintiffs in that case if they could have obtained a declaration as to their rights before embarking on heavy expenditure which might prove to be abortive, the question being whether certain sewers if constructed could be joined to the main sewer which was under the control of the District Council. The declaration was refused because "not a brick had been laid, and no step has been taken towards the construction of the sewers.". However inconvenient, this decision would appear to reflect the exercise of a discretion rather than the absence of jurisdiction but both it and the Carnarvon Harbour⁽²²⁾ case are decisions of a court of first instance, whilst Barnato⁽¹³⁾ and Clay⁽²¹⁾ were decisions in the Court of Appeal. However, in Thorne v. Motor Trade Association⁽²⁴⁾ the House of Lords seems to have accepted that there is jurisdiction and even that, in exceptional circumstances, a declaration will be made although the question is hypothetical, at least in the sense that there is no dispute between the parties. Lord Wright said:-

"Whether a declaratory judgment should be made is in any case a matter of the Court's discretion.".

42. Also it appears to be generally accepted that the court will deal by declaration with "future rights". But, as Mr. Zamir points out (p.203), the dividing line between hypothetical issues and future rights is at times very thin and difficult to draw. Anything which is going to arise in the future inevitably involves something hypothetical; no matter how certain it appears at the moment there is always the possibility that it may not occur. In practice, he suggests, the line is drawn if the event in question is reasonably certain to occur. If it is reasonably certain it is a "future right"; if not reasonably certain, then it is hypothetical. There must be considerable practical difficulties in limiting jurisdiction by a line so fine and difficult to draw. Opinions of judges could well differ as to precisely where such a line might lie and such a question seems far more suitable for the exercise of discretion than as a determinant of jurisdiction.

43. We have, as indicated earlier, found difficulty in this particular question but, with some hesitation, we have come to the conclusion that the refusal by the courts to make declarations in particular circumstances because the questions put to them are "hypothetical" does not mean that the courts have no jurisdiction to enter into that field no matter how rare or exceptional their entries may have been in the past, but should properly be regarded as an exercise of discretion by the courts. On that account, we would not uphold the application that the writ should be set aside on the strength of the first contention set out in (b) of the summons. The Solicitor General agreed that he could not succeed on the second alone.

Representation:

Wells Q.C., Skone James and Wright (Brutton and Co.) for Plaintiffs.

Sneath S.G., Hogg and Hoosen C.C. for 1st and 2nd Defendants.

(1) (1955) 1 All E.R. 331

(2) (1942) Ch.D. 391

(3) 42 E.R. 39 at 43; 2 Mac. & G. 100 at 109.

(4) (1955) Ch.D. 567

(5) (1884) 12 Q.B.D. 271

(6) (1931) 44 C.L.R. 394

(7) 90 C.L.R. 203

(8) (1953)Argus L.R. 965

(9) (1930) 31 S.R. (N.S.W.) 183

(10) 105 C.L.R. 214

(11) (1965) A.C. 172

(12) (1926) A.C. 299

(13) (1949) 1 All E.R. 515 at 520

(14) (1930) 1 Ch.D. 566 at 575

(15) (1938) 1 All E.R. 115; 54 T.L.R. 245

(16) (1951) 1 K.B. 417

(17) (1915) 2 K.B. 536

(13) (1949) 1 All E.R. 515

(18) The Declaratory Judgment pages31, 44

(19) (1953) 2 Q.B. 18, 41

(20) (1906) 1 Ch.324,328

(21) (1919) 1 Ch.66,79

(22) (1937) Ch. 72,80

(23) (1903) 88 L.T. 549

(24) (1937) A.C. 797.

REDIFFUSION (HONG KONG) LTD v. ATTORNEY GENERAL AND ANOTHER

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