TNAG-0409-FCO40-455-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 143

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(a) holds an office, the appointment to which is subject to the approval of the Secretary of State; or (b) was selected for appointment by the Secretary of State; or

(c) has pensionable emoluments exceeding $3,500 per month,

the Governor, before inflicting any punishment, is required to get the prior approval of the Secretary of State [C.R.66].

174. An officer who has been dismissed forfeits all claims to pension, gratuity and such-like benefits [C.R.63].

Termination of service--officers not on the pensionable establishment

175. This is regulated by the Establishment (Disciplinary) Regulations [annexure "J" to this report]. An officer on contract may be dismissed in the same manner as an officer on the permanent establishment; but the contract may also be terminated in accordance with its terms. Such contracts usually provide for termination on notice or on payment of salary in lieu of notice by either side.

176. Staff who are neither on the pensionable establishment or on contract may terminate their service, or have it terminated, on giving one month's notice or on payment of one month's salary in lieu of notice. This class of employee may be dismissed for misconduct without any formalities. Indeed, the master-servant relation- ship is the same as in the case of a private employer.

177. Finally, as regards officers on probation, termination of service is dealt with by Establishment Regula- tion 303. The services of such an officer may be terminated by one month's notice, or salary in lieu

"if general unsuitability of temperament, personal characteristics, misconduct, or the inefficient per-

formance of his duties make it undesirable that the officer should continue to hold office."

Establishment Regulation 303 provides that the officer must be informed of the intention to terminate his services; and he must be given in writing the reasons therefor; and he must be invited to submit any representations which he may wish to make.

Disciplinary Procedure-suggested amendments

178. In a memorandum to the Establishment Secretary dated 9th May 1972, the Solicitor General wrote as follows:-

"It has long been a cardinal principle that Government does not institute disciplinary proceedings in

respect of criminal offences which it cannot prosecute for lack of evidence."

This so-called cardinal principle has been the subject of much public criticism. Admittedly, Government officers who commit crimes should not be treated favourably. They should be tried and punished by the courts like other members of the community. But, for the same reasons as I shall give presently in support of my recom- mendation that Colonial Regulations 61 and 62 should be revoked, I strongly recommend that Government should not act on the principle stated by the Solicitor General. I can well imagine a case in which the evidence in support of an allegation of corruption would be amply sufficient to satisfy a disciplinary tribunal, although such evidence might not be strong enough to satisfy a criminal court; and it seems utterly wrong that Government, well knowing that the officer is corrupt, should feel compelled to permit him to continue in the public service. This is carrying security of tenure ("the iron rice bowl", as the public call it) to ridiculous lengths.

Suggested amendments to Colonial Regulations

Officers on the pensionable establishment

179. Colonial Regulations 61 and 62 read as follows:

"61. If criminal proceedings are instituted against an officer, disciplinary proceedings based upon any grounds involved in the criminal charge shall not be taken pending the determination of the criminal proceedings.

62. An officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he has been acquitted but he may nevertheless be punished on any other charges arising out of his conduct in the matter which do not raise substantially the same issues as those on which he has been acquitted and the appropriate proceedings may be taken for the purpose.”

180. In regard to these regulations, I cannot do better than quote the views of a former Chief Justice who, when Colonial Regulations 54–66 were being re-drafted in 1969, said:---

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