Civil Service Discipline

It is the duty and obligation of each and every civil servant to be dedicated to their duties, committed to delivering their best and serving the CE of the HKSAR and the HKSAR Government of the day with total loyalty. They are required and expected to uphold the highest standard of conduct and discipline in discharging their public duties. And as a member of the Civil Service, all civil servants have a responsibility to hold themselves to a higher standard than how one presents oneself as a private citizen. The Government attaches great importance to the conduct and integrity of civil servants and adopts a zero-tolerance approach in dealing with civil servants who have misconducted themselves or broken the law. Depending on the nature and severity of the misconduct or offence, they are liable to administrative sanctions or disciplinary punishment. The Government has put in place a well-established civil service disciplinary system whereby allegations of misconduct are fully investigated with due regard to natural justice and in full compliance with the spirit and requirement of the due process.

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 PSCO¹⁷, the Administration is required under s.18 of the PS(A)O¹⁸ 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 2021, the number of Category A officers falling within the Commission’s purview for disciplinary matters was about 120 000.

In examining and advising B/Ds on disciplinary cases, the Commission has to consider the circumstances of each case impartially and has to be satisfied that the proposed level of punishment is justified and proportional but not forgetting that it has a punitive and deterrent purpose to serve. While taking reference from past cases is useful in maintaining broad consistency, we have also to take other relevant factors into account not least the extent to which the Government’s credibility and reputation is undermined. The standard of punishment has to move with time and respond to the expectations of our community. The Government must demonstrate its resolve to uphold the highest standard of conduct and integrity in the Civil Service in order to earn the trust and confidence of our people.

In 2021, the Commission advised on 29 disciplinary cases which had gone through the formal disciplinary procedures prescribed under the PS(A)O. They represent about 0.02% of the 120 000 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. As noted, more experience sharing sessions have been conducted in the past year for officers to learn and become better aware of possible pitfalls they may encounter in their daily work. As part of its continued efforts, the Secretariat on Civil Service Discipline (SCSD) had made out-reach visits to a number of departments for exchanges with departmental managements to enhance mutual efficiency in handling cases requiring disciplinary action. The Commission welcomes these initiatives and looks forward to these good efforts yielding fruitful results. On our part, we will continue to work with CSB to streamline the process so that disciplinary cases can be concluded as expeditiously as possible. The Commission has reminded B/Ds that delays not only reflect poorly on efficiency, the effect of the outcome of the case might be lost as a lesson for the future.

A breakdown of the 29 cases advised by the Commission in 2021 by category of criminal offence/misconduct and salary group is at Appendix IX. Among them, about half (i.e. 15) had resulted in the removal of the civil servants concerned from the service by “compulsory retirement”¹⁹ or “dismissal”²⁰. Of the remaining 14 cases, nine cases had resulted in the punishment of “severe reprimand”²¹. Ten carried with them a financial penalty in the form of a “fine”²² and three with a “reduction in salary”²³. While the punishments speak particularly for themselves the severity of the wrongdoings of the officers concerned, they are a reminder to all that the standard of conduct and discipline in the Civil Service cannot be compromised.

In examining submitted cases of discipline, the Commission not only deliberates and advises on the appropriate level of punishment to be meted out but also looks into aspects surrounding the offence/misconduct committed to see if other factors might be at play and if so, what could be done to prevent them. Some might involve making changes at a systemic level, for example, by enhancing a weakened or outdated monitoring mechanism. In others, staff supervision might also be an area to be looked at. The Commission has therefore offered general advice beyond the case itself for the concerned B/Ds to take on board for consideration. The comments, observations and recommendations made by the Commission in the past year are set out in the ensuing paragraphs.

The Commission expects every civil servant to be law-abiding and takes a dim view on those breaking the law. Amongst the criminal cases, the Commission had noted as reported in our last Annual Report an upward trend in the number of upskirt filming offences and convictions. The prolific use of the Internet on innovative devices such as smartphones and hand-held computers has enabled the unwanted circulation of fast and vast amount of indecent and pornographic contents. Regrettably, we have seen a further rise in the number of disciplinary cases involving sex-related offences in the year (from none in 2018 to two in 2019, three in 2020 and seven in 2021). In this regard, the Commission welcomes the enactment of the Crimes (Amendment) Ordinance 2021 introducing specific offences against voyeurism, unlawful recording and prying of intimate parts²⁴ among others, and making such acts punishable by imprisonment of a maximum of five years. The number of such cases in the Civil Service may be small, they are by nature repulsive and reprehensible. The Commission is in strong support of the Government’s resolve to deal with these cases forcefully.

At the request of the Commission, CSB had reviewed the punishment benchmark for offences of upskirt filming in 2020. Following the review, heavier punishment has been meted out for warranted cases to underscore Government’s disapproval of such illicit acts. With the raised standard of punishment, five out of the seven upskirt and sex-related offences advised by the Commission in 2021 were inflicted with removal punishment. While the remaining two defaulters were given one last chance to remain in the service having regard to the circumstantial and specific mitigating factors, they were punished heavily to reflect the serious nature of their improper acts. The Commission will continue to work with CSB to keep the punishment standard under review.

To keep up with the high and rising expectations of the community on the conduct and discipline of civil servants, the Commission has conveyed to CSB our concerns that the disciplinary punishment standard administered on offending civil servants should not only be proportional but should also be seen as being able to contribute to not only the maintenance of a reputable Civil Service but one that the community can trust and have confidence. While due reference is made to the customary level of punishment, broad consistency could only be one factor in determining the level of punishment. The nature of responsibilities and the position the defaulting officer occupies should call for more critical considerations by the disciplinary authorities in B/Ds.

On traffic-related offences, while there are specific legal provisions governing violations of traffic laws, considering the risk it could pose to road users at large, civil servants should set a good example by driving with extra care and vigilance regardless of whether they are on duty or not. It follows that the more senior an officer is, the more stringently he has to be judged in having broken the law. In one case, the Commission had found a senior officer charged with regulatory and law enforcement responsibilities being merely admonished with a verbal advice²⁵ for serious speeding by the department concerned after being caught. It was only upon the Commission’s query that the case was reviewed resulting in the officer being issued a verbal warning instead. In another case, a senior ranking officer was given a written advice after conviction of “Careless driving” in a traffic accident which had caused minor injuries to two members of the public. The Commission believes that such accidents could be avoided if all drivers can be more conscious of their acts as drivers in observing and abiding by all traffic and road use laws. Needless to say, officers employed to perform driving duties have to be doubly aware of the need to drive safely and with good driving manners whilst on duty or not. Among the disciplinary cases involving driver grade officers, the Commission was more concerned about repeat offenders. In our view, if an offending officer had taken lesson from an earlier conviction, a repeat of the same or other offences should not occur but if not so, a more serious view should be taken and a heavier punishment should be meted out. We have therefore urged the management of a department to continue to adopt a stringent standard in monitoring and dealing with an officer who has a blemished record of convictions committed over a relatively short period of time. The Commission had also reminded the GM of its pivotal role in setting an appropriate service-wide standard and in managing the driver grade.

Setting and imposing appropriate levels of disciplinary punishment aside, early and swift action is just as important to achieve the desired punitive and deterrent effects. Delays in taking disciplinary action not only delay justice being done, tardiness in action would also weaken and undermine the Government’s credibility in upholding an effective and efficient disciplinary system in the Civil Service.

In a number of disciplinary cases, the time taken for investigation and deliberations on a recommendation for submission to the Commission was inordinately long. In two cases, the departments concerned took about three years to conclude the case. In others, taking a year or two appears to be the norm. While accepting that there were complications and issues not entirely within the departments’ control, for example, the work-from-home arrangement necessitated as an anti-epidemic measure, some procedures could be streamlined and compressed with better co-ordination for concerted action. The Commission has urged the departments concerned and SCSD to review the disciplinary procedures and identify scopes for shortening the processing time.

S.11 of PS(A)O provides that an officer convicted of a criminal offence could be punished without further conducting disciplinary hearings and inquiries which are different for charges under s.9 and s.10. The Commission therefore expects such cases could be completed faster in relative terms. It follows that summary disciplinary actions which are intended to tackle and deter isolated acts of minor wrongdoing could be administered in an even more timely manner. In one case, the concerned department took more than five months to issue the actual written warning to a driver for committing a non-criminal and straightforward traffic offence. The Commission has reminded the concerned department and the GM to put in place a more robust monitoring system to deal with such cases so that timely sanctions could be meted out as close to the offence as possible to achieve the punitive effect.

Interdiction of an officer from duty as provided under s.13 of PS(A)O²⁶ is an administrative measure invoked by the management to cease an officer’s exercise of powers and functions of his public office when it is considered manifestly not in the public interest for him to remain in service before the completion of concerned criminal/disciplinary investigation/proceedings and hence clearance of the integrity doubt involved. While interdiction is not a punishment, the concerned B/D should take into account all relevant factors in totality in evaluating the adverse impact of the risk involved in allowing the officer to continue to work. Amongst them, the possible conflict between the alleged offence/misconduct and the officer’s duties, the nature and gravity of the offence/misconduct laid against the officer, as well as the likely harm/risk to the general public should be carefully considered holistically. It is also incumbent upon the concerned B/D to consider interdiction of an officer at an appropriate time.

In 2021, the Commission has come across two disciplinary cases in which the concerned departments could have acted more promptly and decisively in directing the interdiction of the defaulting officers. In one case, a frontline officer arrested for multiple duty-related offences was allowed to continue to work in the same office until a trial date was fixed by the court. The Commission considered that the concerned department had not given sufficient weight to the nature of the alleged offences and the serious conflict given rise to the public duties. In our view, it would be more prudent to interdict the officer immediately upon his arrest. In another case, the concerned department had decided to institute disciplinary action under s.10 of PS(A)O on an officer for misconducting himself which might warrant removing him from the service. In view of the sensitivity and nature of the misconduct not least the high level of integrity standard required of the officer’s job, a more decisive management action should have been taken to interdict the officer. In both cases, the Commission had advised the concerned departments to consider staff interdiction more critically and expeditiously in cases involving integrity risk and concerns in the future. CSB should be consulted if in doubt.

In accordance with s.13(1) of the Public Service (Disciplinary) Regulation, civil servants are required to report to their B/Ds if they are subject to criminal proceedings, irrespective of whether such proceedings would lead to criminal conviction. The Commission noted with concern that staff are found to have failed to comply with the reporting requirement, thus delaying their B/Ds’ considerations and actions as required. Many staff have claimed that they are not aware of such requirement or that they have interpreted it as not applicable to their own case. The Commission is thus pleased with CSB’s positive agreement to review the matter with plans to advise B/Ds to remind all staff of the requirement failing which the possible punishment they could face. We have suggested that the issue of written guidelines could be augmented by oral briefings especially for new appointees.

In the course of scrutinising a case involving breaches of the Acceptance of Advantages Notice, it had come to the Commission’s attention that there were several others in the same department who had similarly accepted unauthorised loans. Despite the department’s frequent and regular promulgation/re-circulation of the related guidelines, we observed that the guidelines were issued and re-circulated electronically on the department’s intranet or through Government e-mails which might not be readily accessible to outdoor and frontline staff. It is advisable for the management to consider other appropriate means to cater to the work settings of its staff so that they could have access to the information and be made aware of the rules.