TNAG-0992-FCO40-1211-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 101

WELL RECOGNISED THAT THE POSITION OF A COLONIAL GOVERNOR IS

MRT THAT OF VICEROY

-

HE DOES NOT POSSESS ALL OF THE POWERS OF THE SOVEREIGN WITHIN A TERRITORY. THE GOVERNOR'S POWER TO DISMISS OR SUSPEND OR DISCIPLINE GOVERNMENT SERVANTS DERIVES FROM ARTICLE XVI OF THE LETTERS PATENT -

''THE GOVERNOR MAY, 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 FROM THE EXERCISE OF HIS OFFICE ANY PERSON HOLDING ANY PUBLIC OFFICE WITHIN THE COLONY, OR, SUBJECT AS AFORESAID, MAY TAKE SUCH OTHER DISCIPLINARY ACTION AS MAY SEEM TO HIM DESIRABLE^^.

4. THIS DOES NOT SPECIFICALLY SAY WHETHER THE GOVERNOR, EITHER PERSONALLY, OR VIA THE SECRETARY FOR THE CIVIL SERVICE ON HIS BEHALF, PURSUANT TO THIS POWER MAY SUSPEND WITHOUT PAY CIVIL SERVANTS REFUSING OR FAILING TO CARRY OUT THEIR USUAL DUTIES. THE CRUCIAL ISSUE IN THE DISPENSERS' APPEAL IS THEREFORE LIKELY TO BE WHETHER SUSPEND FROM THE EXERCISE OF HIS OFFICE'' AFFORDS THE POWER OF SUSPENSION WITHOUT PAY. SOME EARLIER AUTHORI- TIES RELIED UPON BY COUNSEL FOR THE DISPENSERS DISTINGUISHED BETWEEN THE EXERCISE OF AN OFFICE, AND THE BENEFITS OF

THE OFFICE. CONS J. PREFFERED THE CROWN'S AUTHORITIES: IN

PARTICULAR WALLWORK V. FIELDING (1922) 2 K. B. 66, AND VAILLANCOURT V. THE KING (1927) EX. C. R. 21

WHICH HELD THAT A POWER TO SUSPEND INCLUDED THE RIGHT TO WITHHOLD PAY. YOU HAVE ALREADY SEEN A COPY OF CONS J. ́S JUDGEMENT. NOTWITHSTANDING CONS J. ́S JUDGEMENT, WE FEEL THAT ON THIS

POINT THE HONG KONG GOVERNMENT MAY POSSIBLY BE VULNERABLE IN THE COURT OF APPEAL. THE RATIONALE OF THE WALLWORK DECISION IS SEEN FROM LORD STENDALE'S OBSERVATION AT P. 71: ''I SHOULD HAVE THOUGHT THAT POWER TO SUSPEND THE OPERATION

OF A CONTRACT NECESSARILY SUSPENDED ITS WHOLE OPERATION

INCLUDING NOT ONLY THE PERFORMANCE OF DUTY BUT ALSO THE

RIGHT TO PAY DURING THE PERIOD OF SUSPENSION^^.

IT WILL BE APPARENT THAT WHERE A GOVERNMENT SERVANT IS

SUSPENDED UNCER CSR 611 THE OPERATION OF THE CONTRACT IS IN PRACTICE

NOT IN FACT SUSPENDED AS THE RIGHT TO HOUSING AND EDUCATION

ALLOWANCES CONTINUES. WE DO NOT THINK THIS NECESSARILY

ALTERS THE NATURE OF THE QUESTION, BUT IT CERTAINLY AFFORDS

AN ERSY BASIS ON WHICH WALLWORK V. FIELDING MIGHT BE DISTINGUISHED.

ALTHOUGH WE ARE HOPEFUL OF BEING ABLE TO SUSTAIN ON APPEAL

THE DECISION OF THE HIGH COURT, WE MUST RECOGNISE THE VERY

REAL POSSIBILITY THAT THE WITHHOLDING OF PAY MAY BE HELD TO

BE WITHOUT LEGAL AUTHORITY. WE THINK IT WOULD BE EMBARRASSING

TO ARGUE THAT SUSPENSION WITHOUT PAY IS EMBRACED BY THE WORDS

^^MAY TAKE SUCH OTHER DISCIPLINARY ACTION IN VIEW OF THE CLEARLY STATED INTENTION THAT SUSPENSION UNDER CSR 611 SHOULD NOT BE REGARDED AS SUCH. DOUBTLESS THIS LINE OF ARGUMENT WILL ALSO BE INVOKED BY COUNSEL FOR THE DISPENSERS ON THE GENERAL

POWER OF SUSPENSION: VIZ. THAT ARTICLE XVI DEALS ONLY WITH

SUSPENSIN AS A DISCIPLINARY MEASURE.

CONFIDENTAL

15. IF THE