TNAG-0992-FCO40-1211-Policy-on-salaries-and-pensions-for-civil-service-in-Hong-Ko-1980 — Page 55

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If we are correct in our conclusion that Col. Regs. are

Instructions, are a form of subordinate legislation and are mandatory, it becomes necessary to decide whether they form part of the terms of service of a public officer, and whether the latter could institute

proceedings against the Governor for breach of contract for non-

compliance with them.

(7)

Shenton Va Smith supports the argument that Col. Regs.

do not form part of any contract between the Crown and its servants,

a proposition with which Roberts-Uray agrees. Furthermore, Col. Reg. 15 states that "the Regulations as to appointment to public offices

I do not constitute a contract between the Crown and its servants".

We are not prepared to read into this disclaimer an inference that

the remainder of Col. Regs. are intended to constitute a contract.

We do not think that an instrument which gives directions

+

to the Governor as to how the public service should be regulated

can itself become, in the absence of specific words to such effect,

part of the terms of service of persons to whom the directions are

not addressed. In any event, we are bound, in this respect, by

Shenton v. Smith.

From this conclusion, it must follow that the only remedy

open to the public servant who is aggrieved by the failure of the

Governor to conform with Col. Regs. would be to seek a declaration

or injunction against the Attorney General (representing the

Governor) in the manner to which approval was given by the Privy

Council in Rediffusion (H.K.) Ltd. v. Attorney General of Hong Kong

To summarize our conclusions as to the status and effect

of Col. Regs.

(a) They are "Instructions" within the meaning of Article XVI.

(b) They are subordinate legislation.

(c) They bind the Governor.

(d) They do not, per se, form part of the contract of service of

public officers.

(e) The only remedy open to a public officer, if there is a breach

of them, is by way of declaration or injunction.

(8)

ព

(7) 1695 A, C. 229 at p.235

(8) 1970 A.C. 1136