Hong Kong Ordinances

PENSION BENEFITS (JUDICIAL OFFICERS) ORDINANCE - SECT 21

Death gratuity or ex gratia payment

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 26 of 1999 s. 3

(1) Where an officer-

   (a)  who has completed not less than 2 years' qualifying service, dies
        other than as specified in paragraph (b); or

   (b)  irrespective of the length of the period of his qualifying  service,
        dies as a result of injuries received-

        (i)    in the actual discharge of his duty;

        (ii)   not due to his own serious and wilful misconduct; and (Replaced
               3 of 1993 s. 65)

        (iii)  on account of circumstances specifically attributable to the
               nature of his duty, while in service under the Government,
               there shall be paid a death  gratuity of an amount calculated
               in accordance with subsection (2).

(2) A death gratuity payable under subsection (1) in respect of the death of
an officer shall be an amount not exceeding the greater of-

   (a)  his annual pensionable emoluments; or

   (b)  the commuted pension gratuity which he would have received had he
        retired at the date of his death and exercised an option for reduction
        of his pension by 50% under section 26(1).

(3) In computing a commuted pension gratuity for the purposes of subsection
(2), the officer's service shall be deemed to include any period of untaken
vacation leave for which an ex gratia payment corresponding to the salary for
that period has been granted.

(3A) Where an officer who is not on agreement and has completed less than 2
years' qualifying service dies while in service under the Government other
than as specified in subsection (1)(b), there shall be paid an ex gratia
payment of an amount equal to-

   (a)  where the officer has completed less than 1 year's qualifying 
        service, one fourth of his annual pensionable emoluments; or

   (b)  where the officer has completed not less than 1 year's
        qualifying service, half of his annual pensionable emoluments. (Added
        3 of 1993 s. 65)

(4) Where a pensioner, other than a person referred to in subsection (5), dies
after retirement from service under the Government, there shall be paid a
death gratuity of an amount equal to the greater of-

   (a)  his annual pensionable emoluments; or

   (b)  the commuted pension gratuity which he would have received had he
        exercised an option on his retirement for reduction of his pension by
        50% under section 26(1), less any pension benefits already paid or
        payable to him but excluding any additional pension granted under
        section 15(1).

(5) Where an officer, who has been granted a deferred pension-

   (a)  dies before a deferred pension is paid to him, there shall be paid a
        death gratuity of an amount not exceeding the maximum commuted 
        pension gratuity which he would have received had he retired at the
        date of his retirement under section 7(1)(da), (e) or (f), or his
        resignation under section 7(1)(j), as the case may be, and exercised
        an option for reduction of his pension by 50% under section 26(1),
        plus any authorized  increase; or (Amended 79 of 1995 s. 50)

   (b)  dies after a deferred pension is paid to him, there shall be paid a
        death gratuity of an amount equal to the maximum commuted pension 
        gratuity which he would have received had he exercised an option for
        reduction of his pension by 50% under section 26(1) plus any
        authorized  increase on it up to the time when the deferred pension
        was paid to him for the first time, less any pension benefits already
        paid or payable to him and any authorized increase on it up to the
        time when the deferred  pension was paid to him for the first time,
        but excluding any additional  pension granted under section 15(1).

(6) Subject to subsections (7) and (8), in the case of an officer, other than
an officer referred to in subsection (5), who dies in the circumstances
described in subsection (1) and whose period of qualifying  service is-

   (a)  not less than 5 nor more than 22 1/2 years; or

   (b)  more than 22 1/2 years but whose pensionable service is less than 22
        1/2 years, the pensionable service which may be taken into account for
        the computation of death gratuity shall be calculated by deeming his
        pensionable service to be the lesser of-

        (i)    twice the period of pensionable service, including any deemed
               increase under section 25, that would have been taken into
               account for the computation of his pension benefits had he
               retired on the day he died

(subject to a maximum of 22 1/2 years); or

        (ii)   the period of pensionable service, including any deemed
               increase under section 25, that would have been taken into
               account for the computation of his pension benefits had he
               retired on reaching the normal  retirement age.

(7) Subsection (6) shall apply in the case of an officer who is eligible for,
or is granted, a pension, and who is re-appointed to service under the
Government, irrespective of the length of qualifying service completed during
the re-appointment.

(8) In the case of an officer to whom subsection (7) applies, the deemed
increase of pensionable service under subsection (6) in respect of the final
period of service of the officer shall not exceed the lesser of-

   (a)  the deemed increase of pensionable service for which the officer would
        have been eligible under subsection (6) had his total period of
        service been continuous; or

   (b)  the actual period of his service after his re-appointment, and an
        officer who has been granted a deemed increase of pensionable  service
        under regulation 18 of the Pension Benefits Regulations ( Cap 99 sub.
        leg.) or regulation 19A or 26(9) of the Pensions Regulations ( Cap 89
        sub. leg.), or both of those regulations, in respect of his previous
        period of service shall only be eligible for a further deemed increase
        of pensionable service under this section for any subsequent period of
        service to the extent that the total of these deemed increases of
        pensionable service does not exceed the maximum deemed increase of
        pensionable service specified in subsection (6).

(9) In respect of an officer who has more than one period of continuous
pensionable service, there shall be paid a death gratuity in respect of each
period of continuous pensionable service under this section; but the total sum
of the death gratuities payable in respect of more than one period of
continuous pensionable service shall not exceed the sum of the death gratuity
that would have been payable had the officer's whole period of
pensionable service been continuous and had his highest pensionable emoluments
or notional highest pensionable emoluments, whichever is the greater, been
taken for the calculation of the death  gratuity, less any pension benefits
already paid or payable to him but excluding any additional pension granted
under section 15(1).

(10) A death gratuity or ex gratia payment shall be paid as soon as possible
after the death of the officer or pensioner to-

   (aa) where he had made a nomination under subsection (10A), his surviving
        spouse; (Added 98 of 1994 s. 13)

   (a)  where he had not made a nomination under subsection (10A), his legal
        personal representative and shall form part of the estate of the
        officer or pensioner for the purposes of distribution but no estate
        duty is payable in respect of the death gratuity or ex gratia payment
        and its addition to the principal value of the estate shall not be
        taken into consideration for the purpose of increasing the rate at
        which estate duty on the remainder of the estate may be payable; or

   (b)  where the death gratuity or ex gratia payment does not exceed an
        amount determined by the Chief Executive, a person named by the Chief
        Executive to be the recipient. (Amended 3 of 1993 s. 65; 26 of 1999 s.
        3)

(10A) An officer may by a notice in writing to the Secretary for the Civil
Service nominate his spouse to be the recipient of the death  gratuity or ex
gratia payment payable under this section in respect of his death. (Added 3 of
1993 s. 65)

(10B) An officer who makes a nomination under subsection (10A) may at any time
revoke the nomination by a notice in writing to the Secretary for the Civil
Service. (Added 3 of 1993 s. 65)

(11) This section does not apply in the case of a death of an officer or
pensioner where benefits corresponding to a death gratuity are paid or payable
under the Oversea Superannuation Scheme in respect of the death. (Enacted
1988)