TNAG-0409-FCO40-455-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 147

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197. As regards C.R.59, an officer may be retired compulsorily if the Governor is of the opinion that this is "in the public interest". But there is a complicated procedure to be gone through. Firstly, the Governor is required to call for a report on the officer from the heads of all the departments in which the officer has served. Secondly, the officer must be informed of the grounds on which his retirement is contemplated and he must be given an opportunity of submitting a reply to those grounds. If, having considered the report and the officer's reply, the Governor forms the opinion that

"having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer's service is desirable in the public interest"; the Governor is then required to consult the Public Services Commission [C.R.65]; and if the officer

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

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

the Governor is also required to refer the matter to the Secretary of State. The Public Services Commission have no power to veto the Governor's wishes; but the Secretary of State has this power as regards the 3 classes of senior officer mentioned in C.R.66. The Governor may not dismiss such officers "save with the prior approval of the Secretary of State."

198. If, after considering the record of an investigation held under C.R.57, or the proceedings of a court which has convicted the officer of some criminal charge, the Governor is of the opinion that no punishment, or further punishment, is called for, but that

"the investigation or proceedings disclose grounds for requiring (the officer) to retire in the public

interest"

the Governor may, after consulting the Public Services Commission in the case of a junior officer, require him to retire; but, again, in the case of senior officers, the Governor is required to obtain "the prior approval" of the Secretary of State.

199. Section 8(2) of the Pensions Ordinance applies only to officers over 45 years.

Unlike C.R.59, it says nothing about calling for reports and entering into a discussion with the officer. It simply says that before requiring the officer to retire, the Governor must consider the advice of the Public Services Commission. He is not bound to accept their advice. But he may not retire senior officers except with the approval of the Secretary of State.

200. Naturally, the Public Services Commission cannot be expected to give any useful advice unless they know what the whole case is about; and equally the Secretary of State argues that he should not be asked to approve or disapprove of the proposed retirement unless he is given full information about the case. Therefore, as C.R.59 applies to all officers (not only those over 45) a practice has grown up of giving the officer prior warning of the intention to invoke section 8(2) and the reasons therefor.

Compulsory Retirement-C,R. 59 should be revoked and section 8(2) of the Pensions Ordinance should be amended

201. In paragraph 191 of this report I have recommended that C.R. 61 and 62 should be revoked so that disciplinary proceedings may be instituted irrespective of whether criminal proceedings are in contemplation and despite the fact that the officer may have been acquitted by a criminal court. But I go further. I recommend that C.R. 59 be revoked in toto and that section 8(2) of the Pensions Ordinance be amended by the deletion of the words "after he attains the age of 45 years".

202. A corrupt officer may have been acquitted on some technicality or because of a mistake on the part of the judge or magistrate. It may be obvious from the judge's, or magistrate's, reasons or the judgment of the appellate court, why an accused officer has been acquitted; and in certain cases it may be possible to fall back upon C.R. 59 with a view to retiring him compulsorily. On the other hand, experience has shown that any attempt to use C.R. 59 to retire an officer after he has been acquitted of a criminal charge leads to difficulties. It is necessary to go through the procedure in paragraphs (1) and (2) of C.R. 59; and, of course, the Public Services Commission has to be consulted in all cases, and in the case of a senior officer, the prior approval of the Secretary of State to the officer's retirement must be obtained. Despite all that has been said in paragraphs 181-190 above, the officer usually claims that his acquittal was tantamount to establishing his innocence and that the attempt to retire him is indicative of malice on the part of the head of his department. This line of argument may not appeal to the Governor; but it may appeal to the Public Services Commission or to the Secretary of State.

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