TNAG-0409-FCO40-455-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 146

189. I am aware that in 1969 the Attorney General recommended that the Governor should be empowered to order disciplinary proceedings for the same offence of which an officer may have been previously acquitted by a criminal court; but this did not find favour with the legal advisers to the Secretary of State.

190. With respect, I entirely agree with the Attorney General, and disagree with the legal advisers to the Secretary of State. I see no reason at all why an officer should not be charged under disciplinary proceedings for the same offence of which he has been acquitted. As matters stand at the moment, an officer guilty of something not amounting to a criminal offence may well be dismissed from the service. But the criminals (and these include the corrupt) stand a very good chance of acquittal in a criminal court for the reasons which I have given; and the Governor's hands are then tied-thanks to Colonial Regulation 62.

191. I recommend that regulations 61 and 62 be revoked. I see no reason why disciplinary proceedings, in respect of conduct which may amount to a criminal offence, should not be instituted irrespective of whether criminal proceedings are in contemplation; and I see no reason why such proceedings should not be instituted despite the fact that the officer has been acquitted of the criminal charge.

Officers not on the pensionable establishment-contract officers

192. As I have said, Government contracts provide for termination by either party upon giving a certain period of notice or salary in lieu. If a contract officer wishes to terminate his services, all he need do is to write to the Establishment Secretary saying:

"In accordance with clause-of my contract I hereby give you-months notice of termination" or words to that effect. The same applies if Government wishes to terminate the officer's contract. But, a practice has grown up in recent years of giving the officer reasons why his services are being dispensed with. What usually happens then is that the officer questions the correctness of the reasons and insists on being disciplined in accordance with C.R.57. Government refuses to be bullied in this way. A lengthy argument between the Establishment Secretary and the officer then begins-sometimes lasting several years-with threats of legal action. I seem to remember one case in which the officer took the matter up with his member of Parliament. The local press got hold of the news; and Government was made to look high-handed and unjust in the eyes of the public.

193. I recommend that this practice of giving reasons for termination of contract should cease. A contract officer is not entitled to be told why his services are being terminated. When he signs a contract of this nature, he does so with his eyes open. It is for Government to say whether he shall be disciplined in accordance with Colonial Regulations or whether he shall be given notice of termination, as in the case of an ordinary employer.

Officers on probation

194. When one reads Establishment Regulation 303, one realises why the public criticise Government for carrying security of tenure to ridiculous lengths. "The iron rice bowl", they say, gives the Government officer far too much protection.

195. I entirely agree. It is up to the officer on probation to “make the grade” and satisfy his employers that he is fit in all respects to be taken on to the pensionable establishment. The grounds for not confirming an officer should not be confined to

"general unsuitability of temperament, personal characteristics, misconduct, or the inefficient performance

of his duties."

The slightest suspicion of corruption during this initial probationary period should be ample ground for Govern- ment not confirming the officer to the pensionable establishment; and if Establishment Regulation 303 cannot be re-drafted in such a way as to include matters of this kind, I recommend that it be revoked.

Compulsory Retirement-current arrangements

Colonial Regulation 59 and the Pensions Ordinance Cap. 89

196. Colonial Regulation 59 is at annexure “G” to this report, and the relevant provisions of the Pensions Ordinance, and the regulations made thereunder, are contained in annexure “K” to this report. Compulsory retirement is not a "punishment" as defined in C.R.54(3); and an officer retired compulsorily will receive his full pension, provided he has served for at least 10 years [Pensions Reg. 4], is over 45 [section 8(2) of the Pensions Ordinance], and he has not been guilty of any negligence, irregularity or misconduct [section 5(2) of the Pensions Ordinance]. In certain circumstances, the Governor may grant a pension or a gratuity without all these require- ments being fulfilled [section 7 of the Pensions Ordinance].

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