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Case 12
Neglect of Duty – Unsubstantiated
Neglect of Duty – Unsubstantiated
Police Procedure – Substantiated Other Than Reported |
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| 6.107 |
The complainant (COM) was the driver of a Public Light Bus (PLB). On the material day, a passenger lodged a traffic complaint with the 999 console against COM as COM did not reduce speed when driving past the road humps, thus causing injury to his neck. Police Constable A attended the scene and classified the case as ‘Traffic Accident with Person Injured’ (TAPI) after initial enquiry. Police Constable B (PC B) of the Accident Investigation Team was called to the scene to take over the investigation. The passenger was sent to hospital for medical treatment whereas COM’s PLB was towed away by the Police for Motor Vehicle Examination (MVE) due to suspected defects on its suspension system. |
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| 6.108 |
COM lodged the following allegations against PC B: |
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| (a) |
PC B failed to serve a ‘Vehicle Examination Notice’ (Pol 566) to him at the scene (‘Neglect of Duty’); and |
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| (b) |
PC B failed to tell him the telephone number for enquiry and the relevant case reference (‘Neglect of Duty’). |
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| 6.109 |
In their initial investigation, CAPO explained that under Section 80 of the Road Traffic Ordinance (RTO), Cap 374, a police officer might examine a vehicle which was being used on the road, for the purpose of ascertaining whether the vehicle complied with the RTO. If the police officer had reason to believe that the vehicle had been involved in an accident or the vehicle was not road-worthy, he might cause the vehicle to be detained at a vehicle examination centre for not more than 72 hours for MVE. Though the RTO required the Police to serve a notice on the driver, it did not specify ‘when’ the notice must be served. Similarly, the Traffic Procedures Manual did not specify when the notice must be served on the driver. |
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| 6.110 |
PC B claimed that he was unable to serve a Pol 566 on COM as he had to leave the scene for other duty commitments before the arrival of the tow truck. The relevant Standing Order issued by PC B’s Formation Commander stipulated that “when the tow car arrives at the scene, the accident investigator, if available, will issue a Pol. 566 to the driver/owner and hand over the vehicle to the I/C towing team or the I/C authorized commercial/private agent and will make an entry in his notebook to this effect”. CAPO was of the view that since PC B did not actually see the removal of the PLB, he was not wrong in not issuing the Pol 566 to COM at the scene. In fact, PC B had, after making the towing arrangement, informed COM that he would serve the Pol 566 to COM when the latter attended his office to give a statement later. Under the circumstances, CAPO classified allegation (a) (‘Neglect of Duty’) as ‘No Fault’. |
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| 6.111 |
On allegation (b) (‘Neglect of Duty’), PC B denied that he failed to provide the telephone number and the case reference to COM. He stated that he had given his name card which contained the required information to COM and his friend at the scene. However, COM’s friend said that he did not see PC B giving any reference card to COM and he had never received the same from PC B. Given the relationship between COM and his friend and in the absence of any independent and corroborative evidence to support either version, CAPO found it appropriate to classify the allegation as ‘Unsubstantiated’. |
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| 6.112 |
In examining the case, the IPCC expressed reservations over CAPO’s explanation regarding allegation (a) (‘Neglect of Duty’). Firstly, the IPCC noted that the wordings in the Pol 566 clearly indicated that a Pol 566 should be served on the driver on the spot and before the vehicle was towed away to the vehicle pound for examination. There was no specification in the Pol 566 or in any section of the law that a verbal notification made to the driver at the scene could substitute a written notice. Secondly, the Standing Order quoted by PC B presupposed that the accident investigator would wait for the arrival of the tow truck and issue the Pol 566 at the scene. It did not stipulate that the notice could be issued after the vehicle was towed away. Besides, if the MVE in the vehicle pound was not given a duplicate copy of the Pol 566 when COM’s vehicle was towed to the pound, the MVE would have no directive as to which part of the vehicle he should examine. CAPO was also asked to explain if PC B who left the scene before the arrival of the tow truck was in breach of the said Standing Order. |
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| 6.113 |
The IPCC also drew CAPO’s attention to Section 70 of the Interpretation and General Clauses (IGC) Ordinance which specified that ‘Where no time is prescribed or allowed within which any thing shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises’. As far as the issue of Pol 566 was concerned, the IPCC considered that it should be served ‘as soon as practicable’. This was important as the notice also served as a documentary record of the Police having taken possession of a piece of private property. While PC B’s decision to serve the notice to COM when COM attended the Accident Investigation Office later to give a statement, or his final act to post the notice to COM as COM did not turn up for statement taking, was an arrangement convenient to PC B, it did not meet the ‘as soon as practicable’ requirement. |
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| 6.114 |
In response, CAPO explained that according to Section 80(3) of the RTO, the intended purpose of a Pol 566 was to notify the driver of a vehicle, under the circumstances as described at Section 80(2)(a)-(c), that a police officer believed there was the need to exercise the power pertaining to vehicle examination under Section 80(1). Hence the Pol 566 was merely a notice and a statement of fact specifying COMEE’s belief that COM’s PLB was involved in an accident. The Pol 566 itself did not carry legal powers. |
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| 6.115 |
While agreeing with the IPCC that a Pol 566 should be served to the driver as soon as practicable, CAPO added that it was not uncommon that a Pol 566 could not be served to the driver on the spot. In this case, PC B considered it appropriate to serve the Pol 566 to COM in the next available opportunity when the latter attended his office to give a statement. PC B’s Formation Commander considered the action taken by PC B in the prevailing circumstances was adequate and no breach of the relevant Standing Order was observed. |
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| 6.116 |
Finally, regarding the IPCC’s point of contention made with reference to the IGC Ordinance, CAPO sought clarification with the Department of Justice (DoJ). In gist, the DoJ advised that the law required that the notice (i.e. Pol 566) be served on the driver immediately after a directive that the vehicle be towed away for an MVE was given. PC B should have so served the notice irrespective of whether the tow truck had arrived. If the conditions prevailing precluded the service of the notice on the spot, it should be served “without unreasonable delay”. In the DoJ’s view, the fact that PC B posted the Pol 566 to COM some four days after the incident did not, as a matter of fact, appear to be service of the notice “as soon as practicable”. |
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| 6.117 |
After reviewing the case in the light of the legal opinion, CAPO held the view that PC B genuinely believed that by following the relevant Standing Order issued by his Formation Commander, he was not required to effect the serving of the Pol 566 at the scene under the prevailing situation whereby the tow truck had not yet arrived prior to his departure. In all fairness, PC B had adopted a practice sanctioned by the Standing Order although it transpired that the Standing Order was not in line with the legal advice. Therefore, CAPO did not regard it as a fault on the part of PC B but a flaw of the said Standing Order. Accordingly, CAPO concluded that it was more appropriate to classify allegation (a) against PC B as ‘Unsubstantiated’ while registering a ‘Substantiated Other Than Reported’ count in respect of the flaw in procedures against the concerned Traffic Formation. Arising from this case, CAPO asked the Traffic Headquarters to look into the issue and devise necessary procedures to avoid recurrence in future. |
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| 6.118 |
The Council endorsed CAPO’s revised investigation results. |
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