but in itself has no force in law, will only be legally effective if the
Governor has the right or power to control the matter covered by the
regulation. It is well recognised that the position of a Colonial Governor is not that of viceroy he does not possess all of the povers of the Sovereign within a territory. The Governor's pover to dimiss or
suspend or disciplins Government servants derives from Article XVI of
the Letters Patent
4.
"the Governor may, subject to such instructions as may
from time to time be given to him by Us through one of Our Principal Secretaries of State, upon sufficient cause
to him appearing, dismiss or suspend from the exercise of
his office any person holding any public office within
the Colony, or, subject as aforesaid, may take such other
disciplinary action as may seem to him desirable."
This does not specifically say whether the Governor, sithar personally, or via the Secretary for the Civil Service on his behalf, pursuant to this power may suspend without pay civil servants taking part in labour disputes. The crucial issue in the Dispensers' Appeal is therefore likely to be whether "suspend from the exercise of Mis office" affords the pover of suspension without pay. Some earlier authorities relied upon by counsel for the Dispensers distinguished between the exercise of an office, and the benefits of the office. Cons J. preferred the Crown's authorities; in particular Wallwork v. Fielding
1922 7 2 K.B. 66, and Vaillancourt v. the King [1927] Ex. C.R. 21 which held that a pover to suspend included the right to withhold pay. You have already seen a copy of Cons J.'s judgement, but a copy is nevertheless attached for your convenience. Notwithstanding Cons J.'s judgement, we feel that on this point the Hong Kong Government may possibly be vulnerable in the Court of Appeal. The rationale of the Vallwork decision is seen from Lord Sterndale's observation at p.71:
"I should have thought that power to suspend the operation
of a contract necessarily suspended its whole operation including not only the performance of duty but also the
right to pay during the period of suspension."