TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 326

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It will be noticed that "in force from time to time" relates only to

Departmental instructions. The typical memorandum of conditions of service includes, under heading "General Conditions of Service".

"The officer is subject to Colonial Regulations,

Government Regulations, Departmental Instructions

and to any Special Ordinances or Regulations ...." etc.

Do the words "you would be required to conform to" and "the officer is subject to", in that context, inevitably mean "bound in contract"? One form of memorandum in present use, after stating that the officer is subject to orders and regulations of the Government etc., and to any special Ordinances or Regulations which apply, and to Colonial Regulations, adds - "These regulations do not constitute a contract between the Crown

and its servants." I think probably that is meant to apply only to Colonial Regulations, but it is difficult to deny the ambiguity. Applying the contra proferendum rule, as the Crown made the document, and, so to speak, perpetrated the ambiguity, that would almost certainly be construed against the Crown. The phraseology seems to have been borrowed from Colonial Regulations. C.R. 15 (1977 Ed.) states :-

"The Regulations as to appointment to public

offices do not constitute a contract between the

Crown and its servants."

It appears that this was inserted for information some time after the decision of the Privy Council in Shenton v. Smith (supra).

I consider it doubtful if (insofar as the matter was expressly considered) the Government ever actually intended to make the CRS and GRS binding in contract. But strictly speaking, the actual subjective intentions of the parties are irrelevant. As Lord Reid (quoting Gloag On Contract:) observed in McCutcheon v. David MacBrayne Ltd. 19647

1 WLR 125, "the judicial task is not to discover the actual intentions of each party: it is to decide what each was reasonably entitled to conclude from the attitude of the other." The question is rather: whether

a party considering the documents would find such intention shown? The typical words "subject to" and "would be required to conform to" are

capable of 2 reasonable interpretations :-