Report of the IPCC 2004



Case 8 Neglect of Duty – Withdrawn Fabrication of Evidence – Unsubstantiated Misconduct – Substantiated Neglect of Duty – Substantiated Neglect of Duty – Substantiated Other Than Reported Neglect of Duty – Substantiated Other Than Reported

6.74	The complainant (COM), a bus driver, was involved in a traffic accident in which his bus scraped against a light goods vehicle while cutting lanes. About one month later, Police Constable X (PC X), who was the officer handling the accident at the scene, gave a statement which mentioned that COM had made a verbal remark of ‘’ (‘As my car is so big, I would not be aware even if there is a collision.’) at the scene. COM was subsequently summonsed for ‘Careless Driving’. During the trial, COM denied having made that verbal remark. PC X testified in court that he recorded COM's verbal remark in his police notebook but forgot to bring it to the courtroom. COM was convicted after trial and the Magistrate found all the police witnesses, including PC X, reliable.

6.75	Before the trial, COM lodged a complaint against Police Constable Y, the investigating officer of the case, for his failure to investigate the case thoroughly before summonsing him (‘Neglect of Duty’). Since COM withdrew this allegation after the conclusion of the trial, CAPO classified it as ‘Withdrawn’. COM also lodged three other allegations against PC X. He alleged that the verbal remark was fabricated as he never made that remark at the scene (‘Fabrication of Evidence’), and PC X gave false evidence in court by claiming that he (PC X) had recorded COM's verbal remark in his police notebook (‘Misconduct’). He further complained that PC X failed to bring along his police notebook to the courtroom (‘Neglect of Duty’).

6.76	CAPO's investigation revealed that PC X did fail to record the verbal remark in his police notebook. PC X explained that he did not make that record in his notebook at the scene because he was busy looking after the safety of the road users thereat. He forgot to record the verbal remark when he later made a post-entry in his notebook. He then included, according to his memory, the verbal remark in his statement which he gave about a month later. Although CAPO considered that PC X's explanation was unconvincing and it was doubtful whether the officer could, based on sheer memory, remember that verbal remark when he gave a statement about a month after the accident, there was no independent evidence which proved that COM never made that remark. Under such circumstances, CAPO classified the allegation of ‘Fabrication of Evidence’ as ‘Unsubstantiated’. Nevertheless, a ‘Substantiated Other Than Reported’ count of ‘Neglect of Duty’ was registered against PC X for his failure to make a detailed entry in his police notebook regarding the accident. He was to be advised without an entry in his divisional record file on the need and importance of making adequate and detailed notebook entry.

6.77	As regards the allegation of ‘Misconduct’, PC X explained that he noted the verbal remark recorded in his own statement when he read it over to refresh his memory before attending court. Thinking that the statement was based on his notebook entry, he testified in court that he had recorded the verbal remark in his police notebook. CAPO considered that although the evidence that PC X gave in court was not necessarily fabricated as he might genuinely believe that it was true at the time of giving the evidence, it was an indisputable fact that the evidence given was untrue. CAPO therefore classified the allegation of ‘Misconduct’ as ‘Substantiated’ and legal advice was sought on the criminal and disciplinary liability of PC X. The subsequent legal advice did not recommend laying any criminal charge against PC X as it was difficult to prove beyond reasonable doubt that the officer deliberately lied to the court, but supported a disciplinary charge of ‘Conduct Calculated to Bring the Public Service into Disrepute’ instead. Formal disciplinary action was to be initiated against the officer in view of the seriousness of the matter.

6.78	PC X admitted the allegation of ‘Neglect of Duty’ against him regarding his failure to bring along the police notebook when attending court. As his failure contravened the relevant provision in the Police Manual which gives detailed guidelines on the preparation for attending court, CAPO classified the allegation as ‘Substantiated’. PC X was to be warned without an entry in his divisional record file regarding the need for and the importance of bringing with him the relevant police notebook when giving evidence in court.

6.79	In addition, CAPO noted that PC X had apparently failed to adequately prepare himself for his court attendance. His failure to refresh his memory by referring to the relevant entry in his police notebook contravened the relevant guidelines laid down in the Police Manual. Moreover, CAPO considered that PC X should not have made a bold presumption and testified in court that he had made a record of COM's verbal remark in his police notebook when he (PC X) was in fact uncertain about the evidence that he was giving. Another ‘Substantiated Other Than Reported’ count of ‘Neglect of Duty’ was therefore registered against PC X. He was to be warned without an entry in his divisional record file regarding the need to adhere to the relevant provision in the Police Manual and to prepare himself adequately prior to giving evidence in court.

6.80	While endorsing CAPO's investigation results of this case, the IPCC noted that COM's guilty verdict stood inter alia on PC X's untrue evidence regarding his notebook entry. The IPCC therefore raised its concern with CAPO on whether the Police or the prosecuting authority should undo or mitigate the damage done by taking up the matter with the Judiciary. In response, CAPO referred the IPCC's query to the relevant Traffic Formation for consideration. According to the legal advice sought in this matter, COM might apply for an appeal against his conviction in accordance with Sections 114A(1) and 118(b) of the Magistrates Ordinance. The Traffic Formation subsequently issued a letter to notify COM of the background and result of the legal advice and his rights of appeal. The IPCC agreed with the follow-up action taken by CAPO.


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