TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 321

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time he enters the service of the Crown, how far is he affected by subsequent regulations promulgated by the Crown? The disingenuous (and unsupported) conclusion is that in contracts of service with the Crown there is an implied term enabling the Crown to alter the conditions of service.2

Turning to Hong Kong; in Choi Sum & Ors v. A.G. [1978]

HKLR 609, Cons J. boldly asserts :-

"it is now well settled that the relationship

between the Crown and its servants is one of simple

contract. The comments of the Privy Council in Kodeeswaren v. A.G. of Ceylon 1970 AC 1111 have

put this beyond doubt. But each contract is subject to the overriding power of the Crown to dismiss

at will. It is a term implied by law, unless that

term is expressly excluded."

With all deference, in my submission that finding can be attacked on several fronts. Presumably the learned Judge's reference to "simple contract" means exclusively by contract, or in other words, that the prerogative powers have no part in the relationship. Such must have been his finding because, of course, if the regulation there in question did have prerogative force the plaintiffs would not have been entitled to their declarations. In the first place, although Kodeeswaren established that the appellant, a Ceylonese civil servant, did have a contract of service under which he could sue, that case certainly did not decide that the relationship between the Crown and its servants is exclusively contractual. Again the learned Judge betrays a degree of incertitude when he says "each contract is subject to the overriding power of the Crown

to dismiss at will it is a term implied by law etc.".

...

2.

See also: Peter W. Hogg "Liability of the Crown in Australia New Zealand & the United Kingdom" (published 1971) p.150 "The rule of the common law is that Crown Servants are dismissable at pleasure ... The legal basis of this rule is still obscure". cf. p.154 "Civil Servants, unlike military servants, have a contractual relationship with the Crown, and are not subject to prerogative powers of control". Another, largely theoretical, conception is that of L. Blair, "Civil Servant a status relationship?" (1958) 21 M.L.R. 265, where it is postulated that status is the true basis of the civil servant's relationship with the Crown.