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Case 7
Neglect of Duty – No Fault
Neglect of Duty – Not Fully Substantiated |
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| 6.66 |
The complainant (COM), who was a tourist, reported a ‘rip-off’ case to the Police when he met Auxiliary Sergeant X (ASGT X) on the street in midnight. COM alleged to Police Constables (PCs) A and B, the officers who subsequently took over the case, that when he went to a dispensary for money exchange, the dispensary staff persuaded him to buy ‘Viagra’ and gave him 15 tablets of ‘Viagra’ (10 of which were cut into halves) at a price of $2,100. When COM refused to buy all the 15 tablets, he was forced by the staff to accept all the tablets against his will. He requested the Police to assist him in getting a refund by returning the intact tablets to the dispensary. |
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| 6.67 |
PCs A and B accompanied COM to the dispensary for enquiry but found that it had closed for business on that day. In view of COM’s possession of the tablets, PC A arrested him for ‘Possession of Part 1 Poison’. COM was then holding charge with the offence pending further investigation and the court adjourned the case with bail granted to COM. Inspector C (IP C), the Officer-in-charge of the case, subsequently proceeded with the charge against COM but the prosecution later withdrew the charge and COM was discharged by the court accordingly. COM then lodged a complaint against PC A and IP C. He alleged that PC A failed to conduct a thorough investigation before arresting him (‘Neglect of Duty’) and IP C failed to consider his explanation before proceeding with the charge against him (‘Neglect of Duty’). |
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| 6.68 |
When interviewed by CAPO, PC A explained that since COM was in possession of the ‘Viagra’ tablets (i.e. Part 1 Poison) without any medical prescription and his version could not be verified at the scene, PC A could not release COM and had to arrest him for further investigation. CAPO noted that prior to the arrest, PC A had already established that COM knew that the tablets he bought were ‘Viagra’. Since the possession of Part 1 Poison without medical prescription was an offence and the officer was unable to ascertain the facts of the case as reported by COM, CAPO considered PC A’s decision of arresting COM justified and appropriate under the prevailing circumstances. CAPO classified the first allegation of ‘Neglect of Duty’ against PC A as ‘No Fault’. |
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| 6.69 |
In response to CAPO’s enquiry, IP C explained that he had conducted follow-up investigation with the dispensary staff who denied having any dealings with COM. He noticed from a signboard hanging outside the dispensary indicating the provision of money exchange service, which corroborated with part of COM’s account. Suspecting that COM’s report of the ‘rip-off’ case could be genuine, he instructed PC A to report the alleged unscrupulous dispensary business to the District Intelligence Section for necessary action. Nevertheless, he considered COM’s version of being forced to buy the ‘Viagra’ tablets doubtful and unreasonable. In view of the positive results of the chemical examination of the drugs and the absence of independent or corroborating evidence supporting COM’s claim, he decided to proceed with the charge against COM and let the court make a fair judgment. However, prior to the court proceedings, the prosecutor suggested IP C not to proceed with the charge as the prospect of getting COM convicted was minimal. After consideration, IP C applied to withdraw the charge and the case was dismissed by the court. |
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| 6.70 |
CAPO considered that IP C’s judgment to proceed with the charge was not meticulous and classified the second ‘Neglect of Duty’ allegation against him as ‘Substantiated’ for the following reasons: |
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| (a) |
The location where COM met ASGT X was full of vice establishments. COM was found in possession of ‘Viagra’ tablets and a bottle of sex oil when he first lodged a complaint with ASGT X. Coupled with the officers’ corroborating versions that COM expressed dissatisfaction with the price and quantity of the tablets, CAPO tended to postulate the incident to be a possible business dispute over scrupulous fraud on tourist, which was not uncommon in the district; |
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| (b) |
Mere possession of the ‘Viagra’ tablets in this case could not be regarded as conclusive evidence to support IP C’s decision. Taking into account that it was COM who initiated to report the case to the Police and the money exchange signboard hanged outside the dispensary corroborated with COM’s claim of his purpose of being there, CAPO considered that COM’s version was not entirely unconvincing; and |
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| (c) |
With suspicion on the dispensary and the fact that there was no refuting evidence to discredit COM’s version, IP C should have considered seeking legal advice on the weight of evidence or conducted further investigation before making a final decision to proceed with the charge. |
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| 6.71 |
Upon examination of the complaint, the IPCC informed CAPO that it had reservation on the ‘Substantiated’ classification against IP C for the following reasons: |
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| (a) |
The evidence of PC A and the chemical examination result did support a prima facie case that COM was knowingly in physical possession of ‘Viagra’ tablets; |
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| (b) |
COM’s claim of being forced to take possession of ‘Viagra’ tablets was in fact refuted by firstly the unequivocal statements of the dispensary staff and secondly ASGT X’s version that COM initially complained that he was persuaded (but not forced) to buy ‘Viagra’ tablets, which indicated that his possession of the tablets was voluntary; and |
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| (c) |
IP C’s decision to proceed with the charge was not blatantly wrong, although the obviously better and simpler alternative would have been to seek legal advice. |
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| 6.72 |
In response, CAPO accepted the IPCC’s views and re-classified the ‘Neglect of Duty’ allegation against IP C from ‘Substantiated’ to ‘Not Fully Substantiated’. IP C was to be advised without an entry in his divisional record file on the need to ensure sufficiency of evidence before proceeding with a charge and to seek legal advice whenever in doubt. |
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| 6.73 |
The Council endorsed CAPO’s revised investigation results. |
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