TNAG-0408-FCO40-454-Allegations-of-bribery-and-corruption-in-the-Hong-Kong-polic-1973 — Page 102

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been acquitted but on other issues if that were possible. example if an officer is acquitted of embezzlement, then, provided that it could be established that the money wan missing, there would be no objection to his being charged in disciplinary proceedings with negligence or perhaps failure to carry out audit checks. It was agreed that under the existing Colonial Regulations this could be done and in fact had been done and accepted by the Secretary of State on several occasions.

It would neem that there had been some misunderstanding as to what the Governor ment by his reference to "inquisitorial approach" as opposed to a judicial approach. As we understand it now,

what he ment was that if the members of the tribunal thought that some line of enquiry relevant to the issue before them should be pursued they should not be barred from putting questions themselves to witnessen or for example requesting some person not included in the list of witnesses to attend the tribunal in order to give evidence. Whether the tribuns 1 itself should take the necessary action or should request the Colonial Secretary to do so, it seems to us is a matter for local decision, although perhaps it would be preferable for a tribunal always to act in ouch matters through the Colonial Secretary.

There wo discussion on what degree of proof was required before an officer could properly be found guilty of a disciplinary offence. Should it be proof beyond reasonable doubt, es in a criminal case, or should it be decided on the balance of probabilities, as in a civil action? The draft Establishment Regulations are silent on this and it was ngreed that it da not a matter that should be dealt with in regulations. Directions given by the Governor to a tribunal might, however, deel with the question. But if it were decided that the "balance of probabilities" was the proper test the directtorn should not use that expression, since it la the aim of the Hong Kong Government to get away from the excessively legalintie atmosphere which at present seems to characterize their disciplinary tribunals. To prescribe the "balance of probabiliti test in layman's language, directions would have to nek the tribunal to state whether "it is likely that" the officer committed the offence in question or something to that effect. Sir James McFetrie, however, was firmly of the opinion that the "balance of probabilities" test was not the correct ons to որply. He thought that if on officer was charged with a disciplinary offence for which he wan liable to be punished, whether by dismisnal or in any other way, the proper standard of proof must be proof beyond reasonable doubt. A fair-minded person, asked to state whether 'X' had committed a particular offence, would not reply in the affirmative if he had any reasonable doubt on the point and to base a punishment upon eny finding of fact that did not have that degree of certainty could not be justified. There is always a risk that charges preferred either in a criminel court or in a disciplinary tribunal will fail; and if in any particuler case the long Four authorities regard this risk as too great, they chould consider the alternative of compulsory retiiewent under the proposed new Col. Reg. 66.

It was agreed that the draft local regulations rubmitted by the Hong Kong Government should be re-drafted so as to exclwin from this application all contractofficers; a contract officer should as heretofore be disciplined, when necessary, in accordance with the terms of his contract, first having been given an opportunity of replying to the complaints made against him.

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