Reference........
CONFIDENTIAL
NICKLY
See
рала S
MR STUART (HKIOD)
of ou tu No 1000.
c. Mr Rushford (Legal Advisers)
See new subunision
PLA
AMENDMENTS TO COLONIAL REGULATIONS IN HONG KONG AND THE CASE OF
A
1. I have the following comments on the proposal for the amendment of Colonial Regulation 62 in paragraphs 5, 6 and 7 of Hong Kong telegram No. 1180. The Governor still appears confused about the scope of CR 62, which is confined to the case of the punishment of an' officer who has been acquitted on a criminal charge. Under CR 54 (3) retirement in the public interest under Regulation 59 is not a punishment. It follows that in
any case the words "or is required to retire in the public interest" in the redraft suggested by the Governor in paragraph 7 of his telegram should be deleted.
2. Provision for the punishment of an officer for misconduct is made in Regulations 56 and 57. When we discussed this subject last with Mr Rushford, I under- stood his view to be that it is improper to use the provisions of Regulation 59 to enforce the retirement of an officer who is acquitted of misconduct and should be punished for it. Such an officer should be dealt with under Regulation 57. In the case of an officer acquitted on a criminal charge it may be proper to call on him to retire under Regulation 59 on the grounds that, irrespective of any question of guilt or misconduct, his reputation is so impaired that his continued employment is not in the public interest, but Regulation 59 cannot be used as an alternative to a charge of misconduct.
3. I can understand the argument in the Blair Kerr Report that the standard of proof required to obtain a criminal conviction is not the same as that required to justify punishment for misconduct under Colonial Regulations, but what the Governor is now proposing is in effect again the deletion from the existing Regulation 62 of the words "which do not raise substantially the same issues as those on which he has been acquitted"; and, as discussed with Mr Rushford before we issued telegrams 1000 and 1001, I do not believe that we can agree to this. Unpalatable though this may be in Hong Kong, to do so runs against the principle of autre fois acquit which is very deeply enshrined in British tradition and practice. if the Governor cannot accept the suggestion in our telegram 1001 (which I agree will not be easily workable in practice) I am afraid that I must recommend that Regulation 62 should remain unamended.
Therefore,
/SUPERINTENDENT
CONFIDENTIAL
(17293) Dd.897465 400m 1/73 G.W.B.Ltd. Gp.863