M
For this reason we have not
had to get rid of his under CR 59. described the suspension of superannuation benefits as a "punishment" under CR 54.
19.
CR 59(4) specifies that where an officer is retired in the public interest he may be granted a pension or gratuity in accordance with the l'ensions urdinance; Section 7 of the Ordinance provides for the grant of superannuation benefits to an officer who is retired in the public interest under the age of 45.
20. It should be noted that an officer who is over 45 can be compulsorily retired in any case under section 8(2)(a) of the Pensions Ordinance (in which case he would be eligible for pension under section 6(aa)). This section should be used in preference to CR 59 when it is desirable to enforce the retirement of an officer over the age of 45, and no question of misconduct arises.
21. Because the withholding of superannuation benefits is a punishment it cannot in any case be imposed in the special circumstances in which CR 59(3) is invoked. In cases where you wish to suspend all or part of such benefits until retiring age, it might also be better to proceed under CR 59(1) and (2) rather than C 59(3). The difficulty in the Lloyd case was not, as you
Ck suggest in paragraph 4 of your telegram no 77, that compulsory retirement under Ca 59 could not be associated with reduction of pension, but that Lloyd was dealt with under CR 59(3) which specifically excludes punishment. If instead he had been dealt with under CR 59(1) and (2) this difficulty would not have arisen. But this comment is, of course, overtaken by the new doctrine enunciated in paragraph 2 and developed in paragraphs 11 - 18 above.
22. To sum up this part of this letter, CR 59 can be used in appropriate circumstances to retire a corrupt officer, but normally on full earned superannuation benefits unless he has not reached retiring age, in which case it is possible to freeze his benefits until he reaches that age without "punishing" him. This is consoment with the need, expressed by the Governor when he discussed the matter here last year, to get rid of this kind of officer as quickly and quietly as possible. But where it is appropriate to punish the officer by reduction of benefits he should be dealt with under CR 57 or CR 38 (or exceptionally under CR 55).
CR 62 (para 4(A) of your telegram no 1446)
23. This CR provides that an officer acquitted of a criminal charge shall not be punished in respect of any charges on which he has been acquitted, but may be punished on other charges arising out of the matter which do not raise substantially the same issues. Thus, despite the acquittal of an officer on a specific criminal charge, if the proceedings revealed shortcomings in his conduct or efficiency not directly related to the charge, the Gover. or might well be justified in taking disciplinary proceedings to enforce his compulsory retirement under da 57 and to withhold part of, or suspend his pension or gratuity under section 5(2) of the Pensions Ordinance since the issues would be different.
5. CONTD)
/ 24.