15-JUL-1992 12:19
PAUL FIFOOT
From: PAUL FIFOOT
FAX TRANSMISSION
Tel No.: (0372) 723755 Fax No.: 0372 723755
Date: 15th July 1992
To: EMMA WILLIAMS
Hong Kong Department, FCO
Fax No.: 071 270 3387
Pages: 2
0372723755
File
ENROLMENT OF JUDGES IN HMOCS: FUAD AND KEMPSTER JJA
Your fax of 14th July 1992
1. Both judges are past normal retiring age (65) for the purposes of the Pension Benefits (Judicial Officers) Ordinance and Article XVIA (2)(a) of the Letters Patent and
Under were so when they applied for membership of HMOCS. Article XVIA(2)(b)(ii) of the Letters Patent, their term of office may be extended for up to five years, i.e. until they reach the age of 70; this does not affect their notional (or statutory) retiring age.
In
2. Even if their service is extended until they are 70, both will cease to be in the Hong Kong service before the appointed day in the Compensation/Inducement Scheme or even the scheme proposed by the Hong Kong HMOCS Association. any event any compensation scheme would exclude officers who have reached retiring age. What then would be the purpose of their being admitted to HMOGS ?
The only element in the White Papers from which they might seek to benefit would be the safeguard of pensions (para 6(2) of the 1954 White Paper), but (a) for what it is worth, that is provided for in the Joint Declaration and (b) if it were to be separately provided for, it would be in whatever is substituted for the traditional Public Officers The traditional Agreement (i.e. a possible UK guarantee).
POA was not confined to HMOCS, see my minute of 11th June to Mr Cox on the subject and, under the traditional criteria, these two judges, if admitted to the pensionable establishment, would be covered. So long as the Treasury would not depart from the traditional criteria but seek to confine a sterling guarantee to members of HMOCS, there would be no purpose in admitting these judges to HOCS.
4. Membership of HMOCS is a matter for the Secretary of State. As a matter of good administration, he should not seek to change his practice without good reason or notice, but is there any practice as regards admitting applicants for membership who are then past the normal retiring age? I very much doubt it.
(I suspect Hong Kong is unique in admitting persons who are past retiring age into the pensionable establishment.) The purpose of HMOCS was to provide for an ongoing career to normal retiring age and for what should happen if the expectations of that career should be defeated. None of this is relevant to Fuad and Kempster JJA. Unless there is some evidence in the past of persons who have been admitted
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