Fa 37311
"
HKA 373/1
From:
Miss S Brooks
Legal Counsellor
58
Ms Paris LAUG 1993
HKD
COLONIAL REGULATIONS
1.
£39
Date:
6 August 1993
In my minute to you of 2 July headed "Amendments to the Letters Patent in Colonial Regulations", I suggested at paragraph 6 that there was a conflict between Letters Patent XIV (1) which provides that judges, JPs and other public officers hold their offices subject to the pleasure of the Crown and certain provisions of the Colonial Regulations (the CRs). CR 54 (6) provides that CRS 54-66 shall not apply to judges of the Supreme Court or District Court; accordingly CR 55 which provides for an officer to hold office subject to the Crown's pleasure does not apply to judges of the Supreme and District Courts. I noted that it was further proposed to exclude from CR 55 the list of judicial officers in the Hong Kong Government suggested amendment to CR 54(6). I suggested that in the event of the conflict between the CRS and Letters Patent XIV (1) the Letters Patent provision should prevail because of its superior status to the CRS.
2.
The Hong Kong Government take the view that there is no conflict between the CRS and Letters Patent XIV (1) because the Letters Patent provision contemplates derogation from itself by containing the words "unless provided by law". In other words, judicial officers no longer hold office at the Crown's pleasure if there is legislative provision as to their tenure of office. They have suggested that the CRS and their new Judicial Officers (Tenure of Office) Ordinance would qualify as law.
3. It is very doubtful that the CRS do amount to law. Sir Kenneth Roberts-Wray in his book "Commonwealth and Colonial Law" discussed this point in the very context of dismissal of Crown servants (see page 240). He concluded that:
"The Regulations regarding the procedure for dismissal of public officers certainly cannot have the force of law since by Regulation 56, the right of the Crown to dismiss its servants at pleasure without formalities is expressly preserved."
4. A Hong Kong Ordinance would, of course, be law but, as regards the judicial officers to be excluded from Letters Patent XVI, there are problems as to the timing of the bringing into force of the Letters Patent amendment, the Judicial Officers (Tenure of Office) Ordinance and the amendment to the CRS excluding those officers from CR 55. Unlike Letters Patent XIV (1), the CRS do not allow for any derogation from CR 55 (holding of office subject to the Crown's pleasure) in the case that there is other provision in legislation. Given, however, that the Letters Patent provide that a person holds office at the Crown's pleasure unless there is provision regulating this in a law, it may be argued that these judicial officers may
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