Case 9
Neglect of Duty – Unsubstantiated
Misconduct – Unsubstantiated
Impoliteness – Unsubstantiated
   
7.67
 The complainant (COM), a barrister by profession, was stopped and searched by a police constable (PC X), and another woman police officer (WPC Y), as he was suspected of being in possession of equipment fit for an unlawful purpose.  After the search, COM was released unconditionally since no illegal item was found on him.
   
7.68
 COM was dissatisfied with PC X's acts during the search, and lodged a complaint against PC X later on the same day.  COM alleged that PC X failed to inform him of the reason for conducting the search on him at the material time ('Neglect of Duty').  He further complained that at the moment when he emptied the front right pocket of his trousers and showed PC X the keys and coins as per PC X's request during the search, PC X suddenly touched his right buttock without prior notification.  He considered this an indecent act ('Misconduct'). COM was also dissatisfied with PC X's making unnecessary remarks regarding his profession and suddenly moving towards him during the search ('Impoliteness').
   
7.69
 PC X categorically denied all the allegations made by the COM.  PC X explained that he intercepted the COM, and conducted a search on COM at the material time because COM had walked hastily and avoided eye contact with him (PC X).  The shoulder bag carried by COM was bulky which gave rise to his (PC X's) suspicion that COM might have carried in his shoulder bag equipment fit for an unlawful purpose.  PC X stated that he had told COM the reason for the stop and search, and demanded to search his (COM's) body and bag.  Since COM appeared to be nervous and kept moving when he (PC X) requested to search COM's bag, PC X immediately stepped one pace forward and requested COM to stop moving, and conducted a quick search on COM to ensure that there was no dangerous item in his (COM's) possession.  PC X claimed that he gave clear instructions to COM during the search.  He started the search from the upper body, waist, trousers, and finally searched the shoulder bag.  PC X admitted that he patted on COM's upper clothes and trousers' pockets quickly during the search.  The statement of WPC Y, who assisted PC X in conducting the stop and search at the material time, corroborated PC X's version.
   
7.70
 CAPO's investigation indicated that CCTV facility was installed at one of the shops in the vicinity.  However, it did not capture the search location, and the shop attendants stated that they had no idea about the search.  The owner of a newspaper stall in the vicinity, who noticed that two police officers conducted a stop and search on a Chinese male at the material time, stated that she did not pay attention to them and only heard the Chinese male said 'I will complain you'.  She refused to give any statement to assist in the CAPO investigation.
   
7.71
 After investigation, CAPO considered that the stop and search conducted by PC X on COM was fully justified under Section 54(1) of the Police Force Ordinance, Cap 232.  For the allegations of 'Neglect of Duty' and 'Impoliteness', CAPO classified them as 'Unsubstantiated' since PC X denied the allegations, and there was no corroborative evidence or independent witness to prove or disprove either side's version.
   
7.72
 As regards the allegation of 'Misconduct', CAPO commented that the 'touch' alleged by COM was not a physical contact on his buttock, but rather a search of the rear right pocket of his trousers.  CAPO observed that COM considered the 'touch' as an act of indecency, based only on his subjective perception since he (COM) might be over sensitive and had a flawed perception of the search.  CAPO was of the view that PC X did nothing more than the lawful execution of his duty based on his reasoned judgement at the material time, and the allegation was purely a misconception and misunderstanding on the part of the COM himself.  CAPO therefore classified this allegation as 'No Fault'.
   
7.73
 Upon examining the investigation result of COM's complaint, the IPCC had reservation about the 'No Fault' classification for allegation of 'Misconduct'.  The IPCC raised the following observations and comments:
   
 
(a)
 the allegation was a typical one-against-one situation without any independent witness or corroborative evidence to prove or disprove the allegation, which was similar to the other two allegations raised in the complaint that were classified as 'Unsubstantiated';
 
(b)
 COM's version indicated that PC X touched him over the front right pocket of his trousers and his right buttock in a sudden way, without prior notification in the course of the search at the material time.  It was different from the usual way of conducting a body search by the Police such as giving prior instruction, starting the search from the upper body, waist, trousers, etc. as described in PC X's version.  There was also no corroborative evidence to support CAPO's comment that 'the 'touch' alleged by COM was not a physical contact on his buttock but rather the search of the rear right trousers' pocket';
 
(c)
 in determining whether the alleged 'touch' in the instant case was indecent, a number of parameters should be taken into consideration such as PC X's manner in carrying out the search, the force of the 'touch', the tone adopted by PC X, as well as the feeling of COM at the material time, etc.  However, there was no independent witness or objective evidence to demonstrate the details of those parameters in the instant case; and
 
(d)
 in the absence of any independent witness and corroborative evidence to support either side's version, it was not appropriate to rely mainly on PC X's version to classify the allegation of 'Misconduct' as 'No Fault'.
   
7.74
 In response, CAPO commented that the crux of the allegation of 'Misconduct' was whether the alleged 'touch' had exceeded the limit of normal physical contact during a body search and whether it amounted to an act of indecency.  As both sides' versions suggested that PC X searched the pockets of COM's trousers one by one, CAPO considered it reasonable to conclude that the alleged 'touch' was part of the search and nothing more than a normal physical contact during a body search.  However, in respect of the issue of 'indecency', CAPO subscribed to the IPCC's view that whether a 'touch' was indecent depended on various parameters including the form of contact, the force of the touch, etc., and there was no corroborative evidence or independent witness to describe the details of the search conducted by PC X at the material time.  In this regard, CAPO agreed to change the 'No Fault' classification for the allegation of 'Misconduct' to 'Unsubstantiated'.
   
7.75
 The IPCC appreciated that 'Stop and Search' actions were essential for the Police in its crime detection and prevention work, and agreed that PC X had lawful and justifiable grounds to stop and search the COM in the instant case.  There was also no conclusive evidence to prove that PC X had committed any procedural impropriety in conducting the search at the material time.  Nevertheless, in a one-against-one situation where there was no corroborative evidence or independent witness to prove or disprove either side's version, the IPCC considered that an 'Unsubstantiated' classification for the allegation of 'Misconduct' was more appropriate, and thus endorsed CAPO's investigation result of the case.
   
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