24 March 1992
BY FAX
Ms Lolly Chiu
Civil Service Branch
Government Secretariat Lower Albert Road
HONG KONG
HKA 016/1
03 APR 1992
DIEU
FILE
Foreign & Commonwealth
Office
17
p.a.pls
How
24/3
London SWIA 2AH
Telephone: 071-270 2652
Dear Lolly,
DELEGATION OF POWER UNDER COLONIAL REGULATIONS (CRs)
6
15
1. Thank you for your letters of 10 January and 28 February. I am sorry it has taken until now to be able to comment substantively on your proposals but we had to consult our
Legal Advisers.
2. We are slightly concerned about one aspect of your proposal for cases of dismissal under CR 57 (1). You have proposed, inter alia, that the Governor should delegate to the Secretary for the Civil Service (SCS) the authority of dismissal under CRs 57 and 58 in respect of Category A officers remunerated below Master Pay Scale (MPS) Point 14. But in cases covered by CR 57 (1) which involve an officer serving in CSB, the SCS will be both the Head of Department in which the official is serving and the official who decides to punish and decides on the punishment.
3.
Our Legal Adviser has pointed out that there are two applicable principles of natural justice which give us cause for concern, if the Secretary of State were to approve the proposal. Firstly, in these cases there would be an appearance of bias. For example, the SCS may take a personal dislike to a particular officer in CSB. There would be a risk that the decisions could be challenged on the basis that they were contrary to natural justice. It is not necessary to prove actual bias for a challenge to be successful. The natural justice 'bias' principle looks to external appearances rather than to actual improper exercise of power. Justice has to be seen to be done. Secondly, the 'nemo iudex' principle (that no-one can be a judge in his own cause) is also relevant. There is no doubt that these principles apply to the exercise of disciplinary functions.
4.
In view of this, you may like to seek your own legal advice on the proposal concerning cases covered by CR 57 (1).
REGABN
SLM