Read the full judgment text of CACV 000044/1980 on BabelCite. This Court of Appeal judgment was delivered on 28 November 1980 before Roberts, C.J., McMullin and Li, JJ.A..
Administrative law – Crown servants – contract of service – Hong Kong Letters Patent – Article XVI – suspension without pay – Civil Service Regulation 611 – Colonial Regulations – prerogative power to legislate for ceded territory – dismissal at pleasure – unilateral variation of contract – trade dispute – work-to-rule. Twenty-six dispensers employed by the Hong Kong Government took part in a work-to-rule campaign in November 1979 over grading, pay, and duties, and were suspended from duty without pay under C.S.R. 611. They sought a declaration that C.S.R. 611 did not form part of their contract of employment, that it was in breach of such contract, and that they were entitled to salary during the period of suspension. Cons J. dismissed the action and the dispensers appealed. Held, dismissing the appeal: (1) Hong Kong is a ceded territory in which the Crown enjoys full legislative authority (Campbell v. Hall), and the Letters Patent Articles XIV and XVI are an exercise of that authority. Inherent in the power to establish and discipline a public service is the power to make regulations for its control and administration, which the Governor has exercised through Government Regulations. (2) The power of suspension conferred on the Governor by Article XVI carries with it the right to suspend without pay, following Wallwork v. Fielding, since suspension simpliciter means the whole contract is suspended, including obligations on both sides. (3) Colonial Regulations are Instructions within the meaning of Article XVI, are subordinate legislation, bind the Governor, but do not form part of the contract of service of public officers (Shenton v. Smith); the only remedy for breach is by declaration or injunction (Rediffusion (H.K.) Ltd. v. Attorney General of Hong Kong). (4) C.S.R. 611 does not conflict with the Col. Regs. on interdiction (Col. Reg. 60), since suspension and interdiction are distinct, and C.S.R. 611 applies only to trade-dispute situations outside the Col. Regs. 54-66 disciplinary framework. (5) There is a contract of service between the Crown and its public officers, mutually enforceable, following Kodeeswaran v. Attorney General of Ceylon, with G.Rs. (including C.S.Rs.) incorporated into the contract by the standard memoranda of conditions of service. (6) The Crown may unilaterally vary the conditions of service of public officers by virtue of an express term in the memoranda reserving that right to the Government, and such a clause does not destroy the contractual relationship, however vulnerable the public officer may be. Accordingly, C.S.R. 611 became a condition of service of every public officer on its promulgation in October 1977, and the appellants were not entitled to the declarations sought. Appeal dismissed.
Legal issues: Crown's power to legislate for control and discipline of public officers · Power of suspension without pay under Article XVI · Status and effect of Colonial Regulations · Whether C.S.R. 611 conflicts with Colonial Regulations · Existence of a contract of service between the Crown and public officers · Unilateral variation of contract by the Crown
Outcome: Appeal dismissed. The court held that C.S.R. 611 was a valid exercise of the Governor's power under Article XVI of the Letters Patent and, by virtue of the unilateral variation clause in the standard memoranda of conditions of service, formed part of the appellants' contract of employment as a condition of service from October 1977.