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Reference......
5. Brooks
PTO
HKA
016/1
Miss Brooks
Legal Counsellor
P.a.pls
Qu
12/6
HONG KONG: DELEGATION OF POWERS UNDER COLONIAL REGULATIONS
(CRs)
1.
I should be grateful for your comments on the attached draft submission on this subject, which takes account of further correspondence we have had with HKG. The background is as follows.
A
2.
B
C
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In your minute to me of 10 March, you expressed concern about certain aspects of the Hong Kong Government's proposals to delegate some of the Governor's powers in relation to disciplinary procedure, set out in Mr Yeung's letter of 20 November 1991. Your main concern was the possibility of an appearance of bias in cases of dismissal under CR 57(1) involving officers in Civil Service Branch (CSB). HKG have responded on your concerns Mrs Chiu's letter of 2 April.
3.
It is worth noting that the potential number of staff in CSB who would be affected by the proposed delegated authority of dismissal involving cases under CR 57(1) is small: officers below Master Pay Scale (MPS) Point 14 are relatively junior. Besides, HKG are satisfied that sufficient checks and balances exist within the system to uphold the two principles of natural justice (the 'bias' and 'nemo iudex' principles) this was your particular concern.
4.
Briefly, once it is established that on the basis of the evidence available there is a prima facie case of misconduct, an investigating committee is appointed to conduct a hearing. The officer has the opportunity to cross-examine witnesses presented at the hearing and can call his own witnesses. In addition, the Attorney General's Chambers examines the report of the investigating committee to check that the proceedings were in order and that there was sufficient evidence to support the committee's findings. It would not be for the Head of Department nor the Secretary for the Civil Service but the investigating committee to decide whether the officer is guilty of misconduct.
5. Under CR 65, the Secretary for the Civil Service is required to seek the advice of the Public Service Commission before deciding on the appropriate form of punishment. It would seem therefore that, even in the potentially small number of cases involving officers serving in CSB, the Secretary for the Civil Service would not be responsible for finding an officer guilty under CR 57 (1) nor solely for deciding on the form of punishment, as the PSC would advise him on this.
CODE 18-77
LESADP SLM
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