CO129-616-3 Prevention of Corruption Ordinance- 1948 7-8-1948 - 21-10-1948 — Page 3

There is, in my opinion no legal objection to subjecting Crown employees to these provisions and it was apparently considered in Hong Kong that they should be in no better a position in this respect than other public servants see paragraph 2 of the Objects and Reasons of the Bill. But there already exist provisions whereby a Crown employee who is convicted of a criminal offence can be dismissed or deprived of his pension by administrative action (see Article XVI of Hong Kong Letters Patent of 1917 as inserted by the Letters Patent of 1938; the Hong Kong Pensions Ordinance, 1932, s.5(1) ( No. 21 of 1932 ); and Colonial Regulations 66, 68 and 71) and it occurs to me that there may in certain circumstances be practical objections to vesting a similar power in a court or magistrate. To take three examples of what I have in mind

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(1) A court on convicting an officer

disqualifies him for appointment to any public office for seven years and orders him to forfeit his existing appointment. The case is a border-line one and the Governor feels that, had the question of dismissal been left to be dealt with under Col. Reg. 71, he would not have recommended dismissal, but he cannot take any action in the matter since the officer has by law been dismissed from his appointment and there can be no question of reinstating him as he has by law been declared incapable of being appointed to public office for seven years.

(ii) A court on convicting an officer omits

to disqualify and dismiss him. The Governor thinks that the circumstances warrant the officer's dismissal under Col. Reg. 71 and it would legally be open to him to take this course but might he not feel some hesitation in doing so in view of the fact that the court did not see fit to dismiss? I have no doubt that it would be urged on behalf of the officer that the court's omission to dismiss him was a reason why the Governor should not do so by administrative action on the grounds that this would be imposing a punishment which the court had not seen fit to impose; yet the court might have omitted tò dismiss not on the merits of the case but solely because it thought that the question of dismissal would be better left to administrative action.

In fact I do not think that this is as serious an objection to S.5 as is (i) above,as the Governor could no doubt ascertain the reasons which actuated the court and dismissal under Col. Reg. 71 is not strictly a punishment for a crime but an administrative measure taken in the interests of the efficiency of the Service. There is a parallel in the Army where, even if a Court martial omits to sentence a soldier to dismissal from the service, he can still be dismissed as an administrative measure under Kings Regulations on the grounds that His Majesty has no further use for his services.

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(iii)