HKA 016/1
Miss Williams HKD
p.a. pls or 2413
16
FROM:
Miss S Brooks Legal Counsellor
DATE:
10 March 1992
HONG KONG: DELEGATION OF POWER UNDER COLONIAL REGULATIONS (CRS)
71992
File"
1. In the letter of 20 November 1991 the Hong Kong Government are seeking the Secretary of State's approval under Colonial Regulation 54(5) (Appendix II Colonial Regulations) for the delegation of some of the Governor's powers in relation to disciplinary procedure. The particular proposals concern the authority to dismiss officials under Regulations 57 and 58. I am not altogether happy by what is being proposed.
2.
Regulations 57 and 58
Is it not his "power to award punistine ¦
other than
dism scal
under CAS
56,5788 for the
It is proposed that the Governor's power to dismiss officials under Colonial Regulations 57 and 58 should be delegated to the Secretary of the Civil Service Branch in respect of senior officials and to Heads of Department in respect of junior officials. Regulation 57 is about inflicting punishment including dismissal on compulsory retirement of officials. Regulation 58 is about inflicting punishment which could include dismissal. I am unclear whether the Hong Kong Government wish the power to dismiss or compulsory retire to be delegated or the general power to inflict punishment.
3.
I am concerned about Regulation 57 cases in which an officer is serving in the Civil Service Branch when the question of his dismissal or compulsory retirement or other punishment arises. In such a case the Civil Service Branch Secretary 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.
4.
In these cases there would be an appearance of bias. The risk is that these decisions could be challenged on the basis that they were contrary to natural justice. In order to mount a successful challenge, it is not necessary to prove actual bias. 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.
النظر
proposal concerns.
delegation io Heads &
is
Dept.?
AELAHI