Report of the IPCC 2004



Case 14 Neglect of Duty – Substantiated Police Procedure – Substantiated Other Than Reported

6.126	The complaint stemmed from a ‘Theft’ case in which the complainant (COM)’s domestic helper stole a Rolex watch and some gold ornaments from her and pawned them to three pawnshops. After Police investigation, all the stolen items were retrieved from the pawnshops and COM’s domestic helper was charged with and convicted of the offence of ‘Theft’. COM claimed that although she had indicated after the trial her intention to redeem the stolen items, Police returned all the items to the pawnshops and as a result she was unable to redeem most of the items. COM subsequently lodged a complaint against Detective Senior Inspector A (DSIP A), the Officer-in-charge of the case, for failing to make appropriate arrangements for her to redeem the stolen items from the pawnshops (‘Neglect of Duty’).

6.127	CAPO’s investigation revealed that the legal provision for disposing of goods unlawfully pawned was contained under Section 23 of the Pawnbrokers Ordinance, which stipulated that the court might order the return of unlawfully pawned goods to the owner on payment or without payment to the pawnbroker of the loan advanced. Nevertheless, under the Force practice, a court order was not always required provided that the parties concerned had come to an agreement for the disposal of such items.

6.128	Upon CAPO’s enquiry, DSIP A claimed that he instructed Detective Senior Police Constable B (DSPC B) after the trial to contact COM to see if she could reach any mutual agreement with the three pawnbrokers for the disposal of the stolen items. DSPC B later told him that agreement had been reached between COM and the three pawnbrokers. DSIP A then instructed Detective Sergeant C (DSGT C) to brief the pawnbrokers that the stolen items should only be returned to COM and not to be sold to any other person. He also asked DSGT C to inform the Property Office of the police station to return all stolen items to the respective pawnshops, so that the pawnbrokers could deal with COM directly in accordance with their agreement. Unfortunately, two pawnbrokers revoked their verbal agreement with COM and disposed of the returned items according to their own will. As a result, COM could only redeem two items from one of the pawnshops but not the remaining six items.

6.129	CAPO sought advice from the Police Legal Advisor (PLA) on the sufficiency of evidence for a disciplinary charge of ‘Neglect of Duty’ against DSIP A. In this connection, the Divisional Commander (DVC) advised PLA that the “current practice” in the Force was to return stolen items to the pawnshops in the first instance, that the victim had to contest for the ownership if an agreement was not forthcoming, and that the Force procedures in this regard were inadequate and caused misunderstanding. Based on DVC’s comments, PLA concluded that DSIP A’s act to return the stolen items to the pawnshops in the first instance did not seem to be a neglect of duty and the real cause for the undesirable consequence was the pawnbrokers’ breach of their agreement with COM.

6.130	Having regard to PLA’s advice, CAPO classified this allegation of ‘Neglect of Duty’ against DSIP A as ‘Unsubstantiated’. Nevertheless, CAPO proposed that DSIP A, DSGT C and DSPC B be advised without an entry in their divisional record files to be more alert on pawnbrokers not honouring their verbal agreement with the victims and of the need to seek a court order under Section 23 of the Pawnbrokers Ordinance if in doubt. On the other hand, in view of the inadequate procedure on the disposal of pawned property being the subject of a theft case as commented by DVC, CAPO registered a ‘Substantiated Other Than Reported’ count in respect of the flaw in procedure against the Hong Kong Police Force. Police’s Support Wing undertook to review the relevant provisions in the Force Procedures Manual.

6.131	In examining the case, the IPCC noted that PLA’s advice that DSIP A’s act did not constitute neglect of duty was based on the “current practice” described by DVC. However, the “current practice” as detailed by the Clerical Assistant of the Property Office of the police station concerned was different from that described by DVC. In her statement to CAPO, the Clerical Assistant described that the practice was that in the absence of a court order, the property would be returned to either the victim or the pawnbroker, as specified by the Officer-in-charge of the case. If the property was returned to the pawnbroker, the victim would be present, and the pawnbroker would be required by the Police to sign an agreement to confirm how much money the victim would have to pay to redeem the property. The property would then immediately be redeemed there and then. The IPCC considered that the “current practice” as described by the Clerical Assistant was indeed consistent with the spirit behind the approach described in the relevant provision of the Force Procedures Manual, which stipulated that “In any case where the property has been recovered from a pawnshop, the Property Officer should confirm the instructions for disposal with the Officer-in-charge of the case to ensure that the owner is given the opportunity to be present when or if the property is to be returned to the pawnshop.” The IPCC was of the view that if the “current practice” was other than what was described by DVC, the legal advice was based on a different factual basis and might not be able to support the conclusion that DSIP A was not in neglect of duty. The IPCC thus requested CAPO to consider seeking further legal advice on the matter. Besides, CAPO was asked to consider if there was any criminal liability of the two pawnbrokers for having knowingly sold the stolen properties instead of honouring their verbal agreement with COM.

6.132	CAPO sought further advice from PLA. On the basis of the descriptions of “current practice” given by the Clerical Assistant and a Detective Chief Inspector of another district who had relevant experience, PLA concluded that there was prima facie evidence to initiate a disciplinary charge of ‘Neglect of Duty’ against DSIP A under the above-mentioned provision of the Force Procedures Manual having regard to his responsibility as the Officer-in-charge of the case. Furthermore, DSIP A also failed to act in accordance with the relevant provision of the Police General Orders regarding the handling of case property, which stipulated that “the case shall not be considered completed until he (Officer-in-charge of the case) has ensured such property has been finally disposed of in accordance with Police General Orders/Force Procedures Manual or a court order.”

6.133	CAPO consequently re-classified the allegation of ‘Neglect of Duty’ against DSIP A as ‘Substantiated’. Formal disciplinary action was instigated against DSIP A for his failure to exercise the required degree of care and attention to ensure that the mutual agreement between COM and the pawnshops was honored, resulting in COM’s failure to redeem the property as agreed. DSGT C and DSPC B were advised without an entry in their divisional record files to be more alert on pawnbrokers not honouring their agreement with the victims and of the need to seek a court order under Section 23 of the Pawnbrokers Ordinance if in doubt.

6.134	As regards the two pawnbrokers’ liability for not honouring their agreement with COM, Department of Justice advised that there was no reasonable prospect to secure the conviction of any theft related offence. Nevertheless, CAPO had notified Superintendent (Licensing) in writing of the matter for his consideration of any future licensing applications from the two pawnshops.

6.135	As an outwith matter, DSIP A was advised without an entry in his divisional record file to be more cautious in preparing property disposal instructions as he had mistakenly ordered the return of two stolen items to a wrong pawnshop. These items were later returned to the pawnshop where they were originally seized.

6.136	Arising from the complaint investigation and PLA’s advice, CAPO decided to make it a mandatory requirement for a court order to be applied for the disposal of pawned property where the ownership was in dispute, regardless of whether the claimants had entered into any agreement. Police’s Support Wing undertook to amend the relevant provisions in the Force Procedures Manual accordingly.

6.137	The IPCC endorsed CAPO’s revised investigation result of this case.


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