Chapter 6

Civil Service Discipline

6.1
Accepting appointment as a civil servant carries a commitment to serve to the best of one’s ability. In addition, all civil servants are expected to uphold the highest standard of conduct and discipline in discharging their public duties as well as in their private lives. Needless to say, they have to be law-abiding at all times. They are liable to disciplinary action if they fail to observe any government regulations or official instructions, misconduct themselves in any manner, commit a criminal offence (whether related to their public duties or not) or, by their actions, bring the Civil Service into disrepute. The SAR Government has put in place a well-established civil service disciplinary system whereby allegations of misconduct will be promptly investigated and disciplinary sanction strictly administered upon finding a civil servant culpable of misconduct after due process. All disciplinary investigations are conducted fairly and impartially with full regard to natural justice and in full compliance with the due process and procedural propriety prescribed.
6.2
The Commission collaborates with the Government to maintain the highest standard of conduct in the Civil Service. With the exception of exclusions specified in the PSCO15, the Administration is required under s.18 of the PS(A)O16 to consult the Commission before inflicting any punishment under s.9, s.10 or s.11 of the PS(A)O upon a Category A officer. This covers virtually all officers except those on probation or agreement and some who are remunerated on the Model Scale 1 Pay Scale. At the end of June 2020, the number of Category A officers falling within the Commission’s purview for disciplinary matters was about 118 000.
15
Please refer to paragraph 1.4 of Chapter 1.
16
Please refer to paragraph 1.5 of Chapter 1.
6.3
In examining disciplinary cases, the Commission has always endeavoured to ensure that the level of punishment proposed is justified on the basis of the facts and evidence presented. While the nature and gravity of the misconduct or offence are our primary considerations, we are also mindful of the need to maintain, as far as possible, service-wide consistency and parity in treatment. We always take note and draw reference from past cases as they provide useful benchmarks in our consideration of appropriate levels of punishment. However, as each case is different and there may be other relevant factors to consider, the ultimate punishment we support may differ from the original recommendation of B/Ds. To move with changing times and to meet the expectations of the community, we have requested CSB to keep the punishment standard under regular review. Where appropriate, a more stringent and a higher level of punishment should be considered to underscore the Government’s resolve to uphold the highest standard of conduct and integrity in the Civil Service.
6.4
At the management level of B/Ds, taking timely and expeditious actions is a prerequisite. Inordinate delays in meting out punishment not only work against the Government’s disciplinary policy, the very purpose of achieving the punitive and deterrent effect will be defeated.
Disciplinary Cases Advised in 2020
6.5
In 2020, the Commission advised on 29 disciplinary cases which represents about 0.02% of the 118 000 Category A officers within the Commission’s purview. This figure has remained consistently low indicating that the great majority of our civil servants have continued to measure up to the very high standard of conduct and discipline required of them. CSB has assured the Commission that it will sustain its efforts in promoting good standards of conduct and integrity at all levels through training, seminars as well as the promulgation and updating of rules and guidelines. The Commission will encourage CSB to continue to organise training and experience sharing sessions for serving officers to learn from the disciplinary cases so that they can become better aware. The Commission is pleased to note that the Bureau has arranged targeted sessions for frontline and junior/middle-ranking officers to alert them to vulnerable areas requiring extra care and attention and will continue to do so for other grades and ranks.
6.6
A breakdown of the 29 cases advised by the Commission in 2020 by category of criminal offence/misconduct and salary group is at Appendix X. Of these 29 cases, 12 had resulted in the removal of the civil servants concerned from the service by “compulsory retirement”17 or “dismissal”18 . There were nine cases resulting in the punishment of “severe reprimand”19 plus financial penalty in the form of a “fine”20 or “reduction in salary”21 which is the heaviest punishment next to removal from the service and “reduction in rank”22 . The severe punishment meted out should serve as a warning for all.
17
An officer who is compulsorily retired may be granted retirement benefits in full or in part, and in the case of a pensionable officer, a deferred pension when he/she reaches his/her statutory retirement age.
18
Dismissal is the most severe form of punishment as the officer forfeits his/her claims to retirement benefits (except the accrued benefits attributed to Government’s mandatory contribution under the Mandatory Provident Fund Scheme or the Civil Service Provident Fund Scheme).
19
A severe reprimand will normally debar an officer from promotion or appointment for three to five years. This punishment is usually recommended for more serious misconduct/criminal offence or for repeated minor misconduct/criminal offences.
20
A fine is the most common form of financial penalty in use. On the basis of the salary-based approach, which has become operative since 1 September 2009, the level of fine is capped at an amount equivalent to one month’s substantive salary of the defaulting officer.
21
Reduction in salary is a form of financial penalty by reducing an officer’s salary by one or two pay points. When an officer is punished by reduction in salary, salary-linked allowance or benefits originally enjoyed by the officer would be adjusted or suspended in the case where after the reduction in salary the officer is no longer on the required pay point for entitlement to such allowance or benefits. The defaulting officer can “earn back” the lost pay point(s) through satisfactory performance and conduct, which is to be assessed through the usual performance appraisal mechanism. In comparison with a “fine”, reduction in salary offers a more substantive and punitive effect. It also contains a greater “corrective” capability in that it puts pressure on the officer to consistently perform and conduct himself/herself up to the standard required of him/her in order to “earn back” his/her lost pay point(s).
22
Reduction in rank is a severe punishment. It carries the debarring effect of a severe reprimand, i.e. the officer will normally be debarred from promotion or appointment for three to five years, and results in loss of status and heavy financial loss. The pension payable in the case of a pensionable officer punished by reduction in rank is calculated on the basis of the salary at the lower rank. An officer’s salary and seniority after reduction in rank will be determined by the Secretary for the Civil Service. He/she would normally be paid at the pay point that he/she would have received had his/her service been continued in that lower rank.
Reviews and Observations on Disciplinary Issues
6.7
Apart from deliberating and advising on the appropriate level of punishment to be meted out in each and every disciplinary case submitted to us for advice, the Commission also makes observations on cases and initiates discussions with CSB to explore further scope to streamline the disciplinary process and procedures to achieve greater efficiency. Indeed, many of the changes already implemented and some of the proposals now being studied arise from the Commission’s initiatives. The main comments, observations and recommendations made by the Commission in the past year are set out in the ensuing paragraphs.
6.8
The Commission takes a very serious view on civil servants breaching the law. Amongst the criminal offences convicted, the Commission was increasingly concerned about sex-related ones. With the prevalent use of handy mobile devices, we note an upward trend in the number of upskirt filming offences and convictions. The number of disciplinary cases involving upskirt filming may be small in number (from none in 2018 to two in 2019, three in 2020 and four in the first two months of 2021), the rising trend is a cause for concern. The Commission has read with interest the proposal by the Law Reform Commission to introduce new criminal offences of voyeurism, intimate prying and non-consensual photography of intimate parts among others. With strong public support and the Government’s positive response, we look forward to their enactment.
6.9
Last year, CSB had reviewed the benchmark of punishment for offences of upskirt filming in response to the Commission’s views and concurred that a heavier punishment for warranted cases should be recommended so as to send out a clear message that the Government would not tolerate such illicit acts. With the raised standard of punishment, the Commission had advised on one upskirt filming case with the infliction of removal punishment in 2020 having due regard to its gravity and circumstances. The Commission will continue to collaborate with CSB to impress upon the disciplinary authorities in B/Ds to take resolute actions against those who have committed the offences and brought harm to the victims and disrepute to the Government.
6.10
While the meting out of an appropriate level of disciplinary punishment is of upmost importance, taking prompt and timely action is just as vital in the administration of the disciplinary system. Delay in action not only weakens the credibility of the system and the punitive and deterrent effect of the punishment, it is also unfair to the involved parties concerned. The Government’s credibility of not tolerating acts of misconduct and in upholding a high standard of probity in the Civil Service is also at stake.
6.11
Continuing our past efforts working with the Secretariat on Civil Service Discipline (SCSD), the Commission is pleased to note that SCSD had introduced a checklist of information/documents for inclusion in the submission of disciplinary cases. The checklist should assist B/Ds to ensure that no relevant information is missed out and progress monitored readily.
6.12
In three cases, however, the Commission noted with concern that it took the departments more than two years to conclude the investigations and decide on the recommendations for punishment. The concerned departments explained that time had to be taken to conduct investigation including the gathering of all relevant information and materials relating to the alleged acts of misconduct. Furthermore, time had to be allowed for the defaulting officers to make representations before holding the inquiry hearings. While time required for observance of procedural fairness is unavoidable, the Commission considers that there is scope to compress and fast-track the process, for example by escalating the case earlier to the senior management for direction. For cases involving time-bar considerations, such as impending retirement of the officers concerned, urgent action must be taken every step of the way.
6.13
In a case involving an officer convicted of a criminal offence, the department had delayed submitting its recommendation of punishment to SCSD for over a year. As explained, the department had to await the confirmation of the law enforcement agency that no further criminal proceedings would be instituted against the defaulting officer on another suspected criminal offence. Given that the officer’s conviction had already been settled beyond doubt, the department should have proceeded with the disciplinary action as soon as the conviction came to light. In another case involving unauthorised absence of an absconding officer, the department could have proceeded to process summary dismissal under s.10(3) of PS(A)O after finding the officer’s continuous absence from duty without leave or permission for a period exceeding 14 days. Had earlier action been launched by the department, it could have allowed sufficient time for obtaining legal advice on issues related to the officer’s medical history before concluding and submitting the case to the Commission for advice. The Commission has conveyed our comments and observations to the departments concerned. We trust that lessons would be learnt for avoidance of future recurrence.
6.14
Interdiction of an officer from duty as provided under s.13 of PS(A)O23 is an administrative measure to be taken when the management deems it essential that an officer should cease exercising the powers and functions of his/her public office in the public interest. While interdiction is not a punishment and there is no presumption of guilt implied in interdiction, the concerned B/D should take into account all relevant factors in totality in considering whether an officer should be interdicted from or re-instated to duty. An officer should not be re-instated if disciplinary action is to be taken with a view to removing him/her from the service.
23
Having regard to all relevant factors, an officer may be interdicted from duty –
(a)
under PS(A)O s.13(1)(a) if disciplinary proceedings under s.10 of the PS(A)O have been, or are to be, taken against him, which may lead to his/her removal from service. He shall be allowed to receive no less than 50% of the emoluments of his/her office as the interdiction authority thinks fit;
(b)
under PS(A)O s.13(1)(b) if criminal proceedings have been, or are likely to be, instituted against him which may lead to his/her removal from service under s.11 of the PS(A)O if convicted. He shall be allowed to receive no less than 50% of the emoluments of his/her office as the interdiction authority thinks fit until such time he is convicted on a criminal charge serious enough to warrant his/her dismissal from the service whereupon he shall not receive any emoluments pending consideration of the case by the disciplinary authority; or
(c)
under PS(A)O s. 13(1)(c) if inquiry of his/her conduct is being undertaken and it is contrary to the public interest for him to continue to exercise the powers and functions of his/her office. He should be allowed to receive the full amount of the emoluments of his/her office.
6.15
In one case, an officer was found to have committed multiple acts of misconduct and was interdicted. While investigations were still on-going, the department re-instated the officer albeit to take up a post which was unrelated to the officer’s previous work. In the meantime, removal disciplinary action under s.10 of PS(A)O was decided to be taken against the officer. The Commission considered that the department should have erred for prudence sake and not re-instate the officer given the serious nature and gravity of the alleged misconduct. In consideration of the adverse impact of the risk involved in allowing the officer to resume work by the department, public interest must prevail over the personal interest of the officer.
6.16
In another case, an officer was sentenced to five months’ imprisonment upon his/her conviction of two counts of criminal offence and was interdicted from duty. The department re-instated the officer to duty on release from prison. The officer was allowed to work in the department for five months until removal from the service as a result of the disciplinary punishment. The department explained that the re-instatement was effected after making reference to some precedent cases. However, upon a closer look of the case, the Commission has found the department to have made reference to previous cases involving less serious criminal offences. In the present case, the officer’s re-instatement could have caused misunderstanding or even raised doubts among staff of the department. The Commission has advised the department to consider the nature and gravity of the convicted offence in its decision of re-instatement in future.
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