TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 323

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The Letters Patent

The Letters Patent empower the Governor "to do and excute all things that belong to his said office". He is empowered to appoint public officers who shall "unless otherwise provided by law hold their offices at pleasure". Thus in Hong Kong, the Crow's right to dismiss its officers at pleasure does not depend upon an implied term, pace Cons J. Article XVI empowers the Governor :-

"subject to such instructions as may from time to time be given to him by us through one of our Principal Secretaries of State, upon sufficient cause to him appearing dismiss or suspend .... any person holding public office .... or subject as aforesaid, may take other disciplinary action as may seem to him

desirable."

The Governor thus has a residual power to dismiss, suspend and discipline all public officers. There has been considerable academic discussion as to whether Colonial Regulations are instructions as to discipline etc. which must be acted upon by the Governor. They are described as "Directions to Governors for general guidance given by the Crown" a phrase not without difficulty. A direction given to a Governor by the Crown has,

"For general one might think, an unmistakeably peremptory quality. guidance" is of weaker connotation, and seems to admit exceptions and

4 flexible, if not discretionary application. Sir Kenneth Roberts-ray enquires whether Colonial Regulations are to be regarded as "instructions" for the purposes of provisions in a Colonial Constitution which direct a Governor to perform his functions in accordance with Her Majesty's instructions. He finds that the term "instructions" in that context virtually a term of art and as it is not used in Colonial Regulations, finds

one supposes, they it must be assumed this was deliberate. Therefore,

are not instructions and not binding. The learned author goes on, however, to say that in one case instructions are required, and as there are no instructions at all except in Colonial Regulations "it is an inescapable conclusion that the reference in Letters Patent (which have statutory

4. Commonwealth and Colonial Law p.239