Case 8
Neglect of Duty – No Fault
Neglect of Duty – Unsubstantiated
Neglect of Duty – Substantiated
Neglect of Duty – Unsubstantiated
   
7.59
 The complainant (COM) and two males had set up an insurance company.  The latter two subsequently started their own business, causing a series of disputes with COM.  Arising from these disputes, COM made two reports to the Police on 'Criminal Damage' and 'Theft' respectively, whereas one of the two males made a report to the Police on 'Dispute'.  However, COM insisted that he was the informant of all three crime cases.  He alleged that the officer-in-charge of the 'Theft' case, DSIP A, had failed to consolidate the three crime cases as promised and investigate them professionally and thoroughly ('Neglect of Duty').  Moreover, he claimed that he had received a letter signed by DSIP A dated 15 January but bearing a post chop of 26 March.  COM considered that the discrepancy in time indicated the unprofessionalism of the officer concerned in crime investigation ('Neglect of Duty').  He therefore lodged a complaint to CAPO against DSIP A.
   
7.60
 In the course of the complaint investigation, SIP B of CAPO issued a letter to COM, stating that SGT C of CAPO had contacted COM earlier by telephone to ascertain his stance.  However, COM alleged that the said description in the letter was wrong.  The telephone call was indeed made by COM to SGT C instead of the other way round, as he had never provided CAPO with his telephone number ('Neglect of Duty').  In addition, SIP B recapped in his letter that during the teleconversation with SGT C, COM refused to provide further information to assist in the complaint investigation, and questioned why his complaint was handled by the Kowloon Office of CAPO.  However, COM denied having made such remarks during his teleconversation with SGT C, and considered that SIP B's account in his letter was inaccurate ('Neglect of Duty').  Two additional allegations were therefore registered against SIP B.
   
7.61
 After CAPO's investigation, the first 'Neglect of Duty' allegation against DSIP A was classified as 'No Fault' as the crime case files revealed that DSIP A had followed standard procedures in the crime investigation.  As regards the second 'Neglect of Duty' allegation against DSIP A and the last 'Neglect of Duty' allegation against SIP B, they were both classified as 'Unsubstantiated' in the absence of any independent witness or corroborative evidence to prove or disprove the version of COM or the officer concerned.  On the third 'Neglect of Duty' allegation against SIP B, the investigation record of SGT C confirmed that it was COM who telephoned SGT C on the material day.  As SIP B's description in his letter gave an impression that the telephone call was initiated by SGT C, which was contrary to the fact, this allegation was classified as 'Substantiated'.  The IPCC endorsed CAPO's investigation result of the case.
   
7.62
 Having been informed of the investigation result, SIP B wrote to CAPO seeking a review of the 'Substantiated' classification of the third 'Neglect of Duty' allegation.  In support of his review request, he argued that the word 'contacted' as used in his letter to COM showed no indication as to who made the telephone call.  It was COM who subjectively interpreted the phrase as 'SGT C had telephoned him'.  SIP B opined that the subjective interpretation or misinterpretation of COM should not be a reason for the substantiation of this allegation.
   
7.63
 After reviewing the issue in question, CAPO initially supported SIP B's review request and considered the 'Neglect of Duty' allegation should be re-classified from 'Substantiated' to 'Unsubstantiated' for the following reasons –
   
 
(a)
 the purpose of SIP B's letter was to urge COM to contact CAPO to facilitate further investigation, instead of giving a perfectly unambiguous description of past events.  While accuracy is an aspiration intrinsic to the work of the Police, it was wrong to treat any ambiguity as 'Neglect of Duty', particularly when the ambiguity in question did not relate to any matter at issue.  Where gross negligence or recklessness was absent, a failure could not constitute a 'Neglect of Duty';
 
(b)
 human fallibility is a universal affliction to which no one is immune.  In interpreting the circumstances of complaints concerning human behaviour, it is a fundamental requirement to be able to suitably accommodate errors and decide what is reasonably tolerable.  It is futile to pursue absolute accuracy when no matter at issue is jeopardized;
 
(c)
 as a complaint investigation is about 'fairness' and 'reasonableness', a constructive rather than literal interpretation of the word 'contacted' is necessary.  In the instant case, any reasonable man would have had little trouble in accepting the wording used in SIP B's letter; and
 
(d)
 it was wrong in principle to find a substantiation to appease a difficult complainant.
   
7.64
 However, the IPCC had reservations about re-classifying the third 'Neglect of Duty' allegation from 'Substantiated' to 'Unsubstantiated' and offered the following observations –
 
(a)
 according to the CAPO Manual, 'Neglect of Duty' is defined, inter alia, as 'Where an officer fails to carry out all or part of the duty required of him'.  To substantiate a case of 'Neglect of Duty', it has to be established that the subject matter of the complaint constitutes 'all or part of the duty required of' a police officer, and the officer 'fails to carry out' that duty.  There is no requirement that the officer concerned has to be grossly negligent or reckless;
 
(b)
 there is little doubt that a police officer has a duty to ensure that the information provided is correct when communicating with members of the public. With no exception, SIP B had such a duty, rather than an aspiration, to ensure that the content of the letter issued by him to COM was correct in this case;
 
(c)
 the IPCC did not consider the word 'contacted' as used in SIP B's letter had an ambiguous meaning.  According to the dictionary, 'if you contact someone, you telephone or write to them in order to tell or ask them something'.  In other words, the description in SIP B's letter only pointed to one meaning, i.e. SGT C had telephoned COM, which was contrary to the fact;
 
(d)
 the error in the letter was due to SIP B's failure to discharge his duty of ensuring that the information provided in communication with COM was correct;
 
(e)
 as the error was the subject matter of the complaint and was sufficiently proved by independent evidence, whether the error was committed by SIP B with intent or not was irrelevant; and
 
(f)
 SIP B did not adduce any new evidence or information to refute the error at issue in his review request.
   
7.65
 In view of the above observations, the IPCC did not see any valid ground for re-classifying the third 'Neglect of Duty' allegation against SIP B from 'Substantiated' to 'Unsubstantiated'.  The IPCC also reiterated its stance that in endorsing a finding of substantiation, the Council does so on the basis of evidence, and there is no question of appeasing a difficult complainant.  After re-examining the case and the IPCC's observations, CAPO agreed that the 'Substantiated' classification of the third 'Neglect of Duty' allegation should be upheld.  SIP B was advised without an entry in his divisional record file that he should avoid such unnecessary misunderstanding in his future correspondence with the public.
   
7.66
 The Council endorsed CAPO's final review result of the case.
   
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