Cap. 342 sub. leg. B

Customs and Excise Service (Discipline) Rules(Cap. 342, section 16)[1 August 1977](Format changes—E.R. 5 of 2020) Part I Preliminary 1. Citation These Rules may be cited as the Customs and Excise Service (Discipline) Rules.(E.R. 5 of 2020) 2. Interpretation In these Rules, unless the context otherwise requires— (E.R. 5 of 2020)barrister (大律師) has the meaning given by section 2(1) of the Legal Practitioners Ordinance (Cap. 159); (L.N. 63 of 2012)Commissioner (關長) in rules 14, 18(2) and (3), 18A, 19, 20, 21(1)(b), 22, 24 and 26 does not include any other senior officer, but elsewhere in these Rules includes any other senior officer to the extent that he may exercise and perform the powers, functions and duties of the Commissioner pursuant to section 7 of the Ordinance; (L.N. 42 of 1986; 76 of 1999 s. 3; E.R. 5 of 2020)defence representative (辯護代表) means a person specified in rule 6(1)(a), (b) or (c) who represents an officer charged at a hearing; (L.N. 63 of 2012)hearing (聆訊) means a hearing conducted in respect of a disciplinary offence; (L.N. 63 of 2012)inspector (督察級人員) means a member holding any office in Part III of Schedule 1 to the Ordinance; (L.N. 63 of 2012)officer charged (被控人員) means a subordinate officer charged with a disciplinary offence; (L.N. 63 of 2012)official record of proceedings (程序正式紀錄) means a written record of the proceedings of a hearing made under rule 8A(1); (L.N. 63 of 2012)solicitor (律師) has the meaning given by section 2(1) of the Legal Practitioners Ordinance (Cap. 159). (L.N. 63 of 2012) Part II Disciplinary Offences 3. Disciplinary Offences A member commits a disciplinary offence who—(a) is absent from duty without leave or good cause;(b) sleeps on duty without permission from a superior officer;(c) fails to report immediately to a superior officer any suspected breach of discipline by another member;(d) fails to report immediately to a superior officer or a police officer any offence which he suspects has been committed against an Ordinance specified in Schedule 2 to the Ordinance;(e) neglects or refuses to obey any lawful order given by a superior officer whether orally or in writing, including any Standing Order made under section 20 of the Ordinance;(f) is unfit for duty by reason of alcoholic drink or of drugs taken otherwise than under medical direction;(g) neglects or without good and sufficient cause fails to do promptly and diligently anything which it is his duty to do;(h) with intent to deceive, destroys, mutilates, falsifies or conceals a document connected with his duty;(i) with intent to deceive, makes a statement in the course of duty which is false in a material particular;(j) in purported exercise of authority, does or omits to do any act otherwise than in accordance with law;(k) wilfully or negligently damages or destroys or negligently loses any Government or other property with which he has been provided or entrusted;(l) by his conduct brings the public service into disrepute;(m) by his conduct prejudices the good order and discipline of the Customs and Excise Service. Part III Procedure 4. Preliminary procedure If the Commissioner believes that a subordinate officer may have committed a disciplinary offence he shall inform the officer of the circumstances giving rise to his belief and invite the officer to submit an explanation in writing within a specified period not exceeding 7 days. 4A. Admonishment procedure if offence admitted (1) Where the Commissioner under rule 4 also informs the officer that if he admits the disciplinary offence he may be admonished, and the officer does admit the offence, the Commissioner shall not prefer a charge under rule 5 and he may in writing admonish the officer.(2) Even if the Commissioner does not so inform the officer under subrule (1), and the officer admits the disciplinary offence, the Commissioner may in writing admonish the officer instead of preferring a charge under rule 5.(L.N. 118 of 1989) 5. Charging and plea (1) If, after the expiration of the period referred to in rule 4, the Commissioner considers there is a prima facie case of a disciplinary offence against the officer he shall, unless he has admonished the officer under rule 4A— (L.N. 118 of 1989)(a) prefer against him such charge or charges, relevant to the circumstances referred to in rule 4, as he thinks fit; and(b) either state that he will hear and determine the proceedings himself or appoint another senior officer to hear and determine the proceedings.(2) A charge shall be in writing and shall be served on the officer together with a notice—(a) naming the senior officer who will hear and determine the proceedings;(b) stating the place and time at which the charge will be dealt with, being a time not earlier than 7 days from the date of service of such notice;(c) requiring the officer, in respect of each charge, to notify the senior officer referred to in paragraph (a), in writing within 5 days of such service whether he pleads guilty or not guilty;(d) advising him that if he pleads guilty he may make submissions in writing in mitigation of punishment. 5A. Appointment of prosecutor The Commissioner must appoint for the purposes of the proceedings under these Rules against an officer charged a prosecutor who is a member not below the rank of the officer charged.(L.N. 63 of 2012; E.R. 1 of 2022) 6. Representation of officer charged at hearing (1) An officer charged may be represented at a hearing by—(a) a subordinate officer of the choice of the officer charged, other than a subordinate officer who is a barrister or solicitor;(b) (subject to the Commissioner’s approval) a barrister or solicitor; or(c) any other person of the choice of the officer charged who is approved by the Commissioner for the purpose,and the person specified in paragraph (a), (b) or (c) may conduct the defence on behalf of the officer charged.(2) If the Commissioner gives approval under subrule (1)(b), the officer charged may be represented at the hearing by a barrister or solicitor of the officer’s choice.(3) Despite subrule (1), the officer charged must attend the hearing in person.(4) If the officer charged is represented at the hearing by a barrister or solicitor, the Commissioner and the prosecutor may separately be assisted by a barrister or solicitor at the hearing.(L.N. 63 of 2012) 7. Documents to be supplied to officer charged An officer charged must, as soon as possible, be supplied with—(a) a copy of any written statement made by the officer under rule 4;(b) a copy of—(i) the report, allegation or complaint on which the charge is founded or that part of the report, allegation or complaint relating to the officer; and(ii) any report on the document specified in subparagraph (i),whether or not those documents are classified confidential;(c) a copy of any statement relating to the charge made by any witness to be called in support of the charge, and the witness’s name and address; and(d) a copy of any statement relating to the charge made by any person (other than a witness to be called in support of the charge) to the Commissioner or to any person acting on the Commissioner’s behalf, and the name and address of the person making that statement.(L.N. 63 of 2012) 8. Procedure at hearing (1) An officer charged must attend at the place of hearing at the time of which notice has been given.(2) The Commissioner must read the charge to the officer charged, who may then change his or her plea, if he or she so wishes.(3) If the officer charged pleads guilty, the plea is to be entered on the official record of proceedings, and the Commissioner must ask if the officer wishes to make any statement.(4) The officer charged may then—(a) make a statement, which must be recorded on the official record of proceedings; or(b) hand in a statement of matters which the officer wishes to be taken into consideration by the Commissioner.(5) If the officer charged pleads not guilty, the prosecutor or any barrister or solicitor assisting the prosecutor may make an address setting out generally the facts of the case and may call witnesses in support of the charge, and those witnesses may be cross-examined and re-examined.(6) The Commissioner may take the evidence of a witness by reference to a written statement made by the witness, which may be amended or added to by the witness at the hearing.(7) When the prosecutor or any barrister or solicitor assisting the prosecutor has examined all witnesses in support of the charge, the officer charged or the defence representative may address the Commissioner only for the purpose of showing that no prima facie case has been established.(8) If it appears to the Commissioner that there is a prima facie case, the Commissioner must ask if the officer charged wishes to give evidence and call witnesses.(9) If the officer charged gives evidence, the officer may be cross-examined and re-examined and any witness called by the officer may be examined, cross-examined and re-examined.(10) At the conclusion of all the evidence, the prosecutor or any barrister or solicitor assisting the prosecutor may address the Commissioner and then the officer charged or the defence representative may make an address in reply.(11) The Commissioner may ask any witness any question that the Commissioner considers will assist in determining the issues raised.(12) The Commissioner may at any time call any witness whom the Commissioner considers may be able to assist in determining the issues raised.(13) Evidence must not be taken on oath or affirmation.(14) The officer charged, the defence representative, the prosecutor and any barrister or solicitor assisting the prosecutor may inspect any exhibit produced to the Commissioner by a witness.(15) The Commissioner may adjourn the hearing from time to time as the Commissioner considers necessary for the proper determination of the proceedings.(L.N. 63 of 2012) 8A. Record of proceedings (1) The Commissioner must make, or cause to be made, a written record of the proceedings of a hearing.(2) The Commissioner may make, or cause to be made, an audio recording or audio and visual recording of the proceedings, or any part of the proceedings, of a hearing.(3) If an officer charged wishes to appeal under rule 20, the officer may make a request to the Commissioner within the period mentioned in rule 23 for a copy of the official record of proceedings.(4) On a request under subrule (3), the Commissioner must supply the officer charged with a copy of the official record of proceedings.(L.N. 63 of 2012) 9. Adding or amending charges (1) A charge may be amended or a further charge added at any time prior to a finding being communicated to the officer charged.(2) The Commissioner must read and explain the amended or new charge to the officer charged, who must be called upon to plead to the amended or new charge in person, and is entitled to a reasonable adjournment to prepare a further defence. (L.N. 63 of 2012)(3) Rule 8 applies in respect of the amended or new charge. (L.N. 63 of 2012) 9A. Proceedings in the absence of officer charged Where an officer charged is required to appear in person in any proceedings under these Rules and repeatedly fails to appear, the Commissioner may proceed in the absence of the officer if satisfied that the officer has no reasonable excuse for the failures.(L.N. 63 of 2012; E.R. 1 of 2022) Part IV Punishment 10. Proceedings after hearing of charge At the conclusion of the hearing of a charge, the Commissioner shall—(a) if in his opinion the evidence does not show that a disciplinary offence has been committed, dismiss it;(b) if in his opinion the evidence does show that a disciplinary offence has been committed, either—(i) impose a punishment within his powers; or(ii) refer the case to the Chief Executive. (76 of 1999 s. 3) 11. Reference of case to Chief Executive (1) If the Commissioner refers a case to the Chief Executive, the Commissioner must forward to the Chief Executive—(a) a copy of the official record of proceedings (including the charge) certified by the Commissioner to be a true copy of the original;(b) the record of service of the officer charged; and(c) a report setting out—(i) the Commissioner’s reasons for considering the charge proved; and(ii) the Commissioner’s recommendation with respect to punishment or otherwise.(2) The Commissioner must inform the officer charged of the reference by serving on the officer a notice in writing.(3) The officer charged may make representations in writing to the Chief Executive within 14 days from the service of the notice under subrule (2) or any further period that the Chief Executive may allow. (L.N. 63 of 2012) 12. Procedure when case referred to Chief Executive On reference to the Chief Executive of a case and after consideration of any representations made by the officer charged, the Chief Executive must—(a) if in the Chief Executive’s opinion the charge has not been proved, either—(i) dismiss the charge; or(ii) order a further investigation or fresh investigation in a manner and by a person or persons that the Chief Executive thinks fit;(b) if in the Chief Executive’s opinion the charge is proved, or if, after any further or fresh investigation ordered under paragraph (a)(ii), the Chief Executive is of that opinion, impose a punishment within the Chief Executive’s powers.(L.N. 63 of 2012) 13. Punishment imposed to be entered in record of service (1) Every punishment imposed shall be entered in the service record of the officer.(2) An entry of an admonishment given under rule 4A shall be removed from an officer’s service record one year after the admonishment was given unless during the year he was punished for another offence. (L.N. 118 of 1989) 14. Procedure where Commissioner has delegated powers (1) If a senior officer other than the Commissioner exercises or performs the Commissioner’s powers, functions or duties under rules 10 and 11—(a) a reference in those rules to the Commissioner is to be regarded as a reference to the senior officer; and(b) a reference in those rules and rule 12 to the Chief Executive is to be regarded as a reference to the Commissioner.(2) A case referred to the Commissioner by another senior officer under rule 10(b)(ii) as modified by subrule (1) may be referred to the Chief Executive by the Commissioner in accordance with rule 11. (L.N. 63 of 2012) 15. Punishment of inspectors for disciplinary offence An inspector who is found guilty of or pleads guilty to a disciplinary offence may be punished by the imposition of any one or more of the following punishments—(a) by the Commissioner—(i) reduction in rank;(ii) stoppage or deferment of increment;(iii) where the offence is against rule 3(a), forfeiture of pay (excluding allowances) for period not exceeding one month or the period of absence, whichever is the greater;(iv) a fine not exceeding one month’s salary (excluding allowances);(v) severe reprimand;(vi) reprimand;(vii) extra duties;*(b) by the Chief Executive— (76 of 1999 s. 3)(i) the punishments described in paragraph (a);(ii) dismissal without retirement benefits;(iii) compulsory retirement with full retirement benefits or reduced retirement benefits or without retirement benefits. (L.N. 42 of 1986; 6 of 2009 s. 17) Editorial Note: * This paragraph was amended by section 17 of the Disciplined Services Legislation (Miscellaneous Amendments) Ordinance 2009 (6 of 2009). Please see section 30 of that Amendment Ordinance for the transitional provisions. 16. Punishment of customs officers for disciplinary offence A customs officer who is found guilty of or pleads guilty to a disciplinary offence may be punished by the Commissioner or the Chief Executive by the imposition of any one or more of the punishments referred to in rule 15(b).(L.N. 42 of 1986; 76 of 1999 s. 3) 17. Order for payment for damage, etc. to equipment, etc. A punishment imposed under rule 4A, 15 or 16 may include an order for the payment by the officer punished of the cost of replacing or repairing any article of clothing, equipment or other property with which he has been provided or entrusted by the Government and which has been lost or damaged due to the fault of the officer.(L.N. 118 of 1989) 18. Punishment where criminal offence is committed (1) The punishment of a subordinate officer who in criminal proceedings is found guilty of or pleads guilty to a criminal offence shall be in accordance with this rule.(2) In the case of an inspector, the Commissioner shall as soon as practicable—(a) refer the case to the Chief Executive; and(b) notify the inspector that he has done so and that the inspector may make representations in writing to the Chief Executive in mitigation of punishment within 14 days of receiving such notice or within such further period as the Chief Executive may allow.(3) In referring a case under subrule (2) the Commissioner shall send to the Chief Executive—(a) a copy of the record of the criminal proceedings; (L.N. 63 of 2012)(b) the inspector’s record of service; and(c) his recommendation with respect to punishment or otherwise.(4) The Chief Executive may, after considering any representations made by the inspector, impose any one or more of the punishments which he may impose under rule 15(b) in respect of a disciplinary offence by an inspector.(5) In the case of a customs officer, the Commissioner shall notify the officer that he may make representations in writing in mitigation of punishment within 14 days of receiving such notice and, after considering any such representations, may impose any one or more of the punishments he may impose under rule 16 in respect of a disciplinary offence by a customs officer. (L.N. 42 of 1986)(76 of 1999 s. 3) 18A. Summary dismissal of subordinate officer for absence from duty Notwithstanding any other disciplinary provisions applicable to him under these Rules, where a subordinate officer is absent from duty without leave for a period exceeding 21 days and it is reported to the Chief Executive in the case of an inspector or to the Commissioner in the case of a customs officer that— (E.R. 5 of 2020)(a) the officer cannot be traced; or(b) on being required by notice in writing (sent to any address through which it may reasonably be expected to reach him) to give, within 14 days, an excuse for his absence, the officer has failed to give an excuse or to give an excuse that is acceptable to the Commissioner,the Chief Executive or the Commissioner, as the case may be, may without further proceedings summarily dismiss the officer.(L.N. 42 of 1986; 76 of 1999 s. 3) Part V Reviews and Appeals 19. Review (1) Where a subordinate officer has been found guilty of a disciplinary offence or has been punished under these Rules by the Commissioner or another senior officer, the Commissioner may, of his own motion, within 14 days of the finding or the punishment (if it was imposed on a later day), review the finding or punishment or both, and within 14 days of the punishment he may review any punishment imposed following a plea of guilty to a disciplinary offence.(2) Upon a review under this rule the Commissioner may, subject to rule 26, exercise any of the powers in rules 22(a), (b), (c) and (d) and 24(a) and (b).(E.R. 5 of 2020) 20. Appeals (1) A subordinate officer (including one who has been dismissed) may appeal, in accordance with the following rules, against—(a) a finding by the Commissioner or other senior officer that he is guilty of a disciplinary offence;(b) any punishment imposed by the Commissioner or other senior officer, other than under rule 22.(2) A customs officer may also appeal, in accordance with the following rules, against a punishment imposed on him by the Commissioner or other senior officer under rule 18(5). (L.N. 42 of 1986) 21. To whom appeal lies (1) The appeal shall lie—(a) to the Chief Executive, in respect of a finding made or a punishment imposed by the Commissioner; and(b) to the Commissioner in all other cases.(2) The Chief Executive may delegate to the Secretary for the Civil Service, or to a public officer not below the rank of Director of Bureau, the determination of an appeal referred to in subrule (1)(a).(76 of 1999 s. 3) 22. Powers of the Chief Executive and Commissioner on appeal Upon an appeal, the Chief Executive or the Commissioner, as the case may be, may— (76 of 1999 s. 3)(a) confirm or reverse the finding;(b) confirm the punishment;(c) subject to rule 26, substitute any other punishment which could have been imposed by him under rule 15 or 16; (L.N. 118 of 1989)(d) remit the punishment in full or in part without substituting any other punishment;(e) if he dismisses an appeal against a finding and no punishment has been imposed, treat the appeal as if it were a case referred to him for punishment and impose any punishment or take any other action within his powers. 23. Appeal to be made within 14 days An appeal shall be made in writing within 14 days from the day on which the subordinate officer is informed that he has been found guilty of a disciplinary offence or from any day on which punishment is imposed. 24. Further evidence may be admitted For the purpose of any appeal against a finding, the Chief Executive may— (L.N. 446 of 1994; 76 of 1999 s. 3)(a) accept in whole or in part the record of the evidence already taken;(b) direct that the whole or any part of the evidence be taken again or that additional evidence be taken,and the Commissioner may, where the appeal lies to him, do any of those things and may also himself take the evidence or part thereof again or take the additional evidence. 25. Suspension of punishment pending appeal In the event of an appeal, any punishment (other than a severe reprimand or reprimand) imposed on a subordinate officer shall be suspended until the appeal is disposed of, withdrawn or abandoned. 26. Greater punishment not to be imposed without opportunity to make representations Neither the Chief Executive nor the Commissioner shall impose a greater punishment under rule 19(2) or 22 without first allowing the subordinate officer a reasonable opportunity to be heard or to make representations in writing as to why the punishment should not be increased.(76 of 1999 s. 3)