TNAG-0991-FCO40-1210-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 340

Articles XIV (appointment) and XVI (suspension) appear to contemplate

that the Governor will exercise these rights or powers personally. This is apparently recognized in Royal Instruction X ("In the execution of the powers and authorities granted to the Governor by Our said recited Letters Patent, he shall in all cases consult with the Executive Council, excepting only in cases relating to the appointment, disciplinary control or removal from office of a public officer or in cases etc.")

Article XIII, providing for disposal of lands, specifically provides that the powers conferred upon the Governor "may be exercised on behalf of the

Governor by any person authorized, whether by name or by reference to an office, the exercise of] those powers by the Governor and such authorization shall be notified in the Hong Kong Government Gazette". This, in my submission,

provides a simple method for the delegation of a specific power, but it would be wrong to conclude that this is the only power under the Letters Patent which the Governor may delegate. In the present case, I am instructed that Sir Jack Cater (as acting Governor) personally approved the decision to suspend the Dispensers, so it could therefore reasonably be argued that no question of delegation arises. Viewed this way, the Secretary for Civil Service is simply acting as a functionary of the Governor in communicating notice of

suspension.

(5)

If this is not so, I believe a power to delegate must be implied,

or on the facts, taken to have been granted. The general rule is delegatus

non potest delegares: the holder of powers which have been delegated may not,

without authorisation further delegate. The usual view is that authorisation must be statutory or deriving from the delegative instrument. In my view this is a moot point. CAP 1 does not help us. Reg. 62(1) provides where any

Ordinance confers a power or imposes a duty on the Governor

the exercise

of that power or the performance of that duty may be signified under the hand of any public officer specified in the 6th schedule. Letters Patent are not

an Ordinance.

questionable.

In any event, I should have thought this provision constitutionally

With respect, it is difficult to see why it is for the legislature

of Hong Kong to decide how the Royal command should be signified.

(5)

It is interesting to compare the C. S. R.s with the 'old edition' of the General Orders. These were in effect around 1912. I have not yet been able to establish exactly when they came into being or when they were superceded. G.R. 25 (referring to "C.O. Rule 28") provides that "all appointments to public offices in the Civil Service in the Colony are made by letter signed by the Governor or written by his direction The old G.O.s also provide a procedure for suspensions as a disciplinary provision. There is, of course, no equivalent in the present C.S. R.s or Colonial Regs.

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