Cap. 322 sub. leg. A

Government Flying Service (Discipline) Regulation(Cap. 322, section 13)(Enacting provision omitted—E.R. 5 of 2021) [1 April 1993](Format changes—E.R. 5 of 2021) Part I Preliminary 1. (Omitted as spent—E.R. 5 of 2021) 2. Interpretation In this Regulation, unless the context otherwise requires—barrister (大律師) has the meaning given by section 2(1) of the Legal Practitioners Ordinance (Cap. 159); (L.N. 61 of 2012)criminal offence (刑事罪行) includes a criminal offence against the law of a place outside Hong Kong;criminal proceedings (刑事程序) includes criminal proceedings in a place outside Hong Kong;defence representative (辯護代表) means a person specified in section 9(1)(a), (b) or (c) who represents a member charged with a disciplinary offence at a hearing; (L.N. 61 of 2012)hearing (聆訊) means a hearing conducted in respect of a disciplinary offence; (L.N. 61 of 2012)official record of proceedings (程序正式紀錄) means a written record of the proceedings of a hearing made under section 11A(1); (L.N. 61 of 2012)prosecutor (檢控員) means the member appointed to prosecute a charge under this Regulation;solicitor (律師) has the meaning given by section 2(1) of the Legal Practitioners Ordinance (Cap. 159); (L.N. 61 of 2012)superior officer (上級人員) includes a member of the same rank as, or lower rank than, a member but who has authority to give the member orders. 3. Saving of Public Service (Administration) Order, etc. on interdiction, etc. (1) If a Senior Officer is alleged to have committed a disciplinary offence or a criminal offence or the conduct of a Senior Officer is being investigated in circumstances that a disciplinary offence or a criminal offence may have been committed, the interdiction and payment of emoluments provisions of the Public Service (Administration) Order and government regulations apply to the Senior Officer and the matter shall be dealt with under that Order and those regulations for allegations of misconduct against a public officer. (71 of 1999 s. 3)(2) If an Officer is alleged to have committed a disciplinary offence or a criminal offence or the conduct of an Officer is being investigated in circumstances that a disciplinary offence or a criminal offence may have been committed—(a) the Controller may interdict him from duty on full emoluments;(b) the matter shall be dealt with under this Regulation.(3) If an Officer is charged with a disciplinary offence or a criminal offence, the Controller may interdict him from duty on a proportion of the emoluments to which he would otherwise be entitled being not less than one-half.(4) If an Officer is not punished as a result of disciplinary proceedings and he has been interdicted on less than his full emoluments, he shall be paid the amount withheld on the disciplinary tribunal making its finding.(5) If an Officer is punished other than by dismissal as a result of disciplinary proceedings and he has been interdicted on less than his full emoluments, he shall be paid such proportion of the amount withheld as the Secretary directs, or where the Controller imposes a penalty, as the Controller directs.(6) If an Officer is found guilty of or pleads guilty to a criminal offence which is in the opinion of the Controller serious enough to warrant the dismissal of the Officer, the Officer shall not be paid any emoluments from the time he is found or pleads guilty until his case is determined under section 5. (L.N. 119 of 1993)(7) (Repealed L.N. 61 of 2012)(8) Nothing in this Regulation shall preclude—(a) the summary dismissal of a member under the Public Service (Administration) Order and government regulations;(b) the termination of the employment of a member under the Public Service (Administration) Order and government regulations on the grounds that, having regard to the conditions of the public service, the usefulness of the member and the circumstances of the case, termination is desirable in the public interest. (71 of 1999 s. 3) Part II Disciplinary Offences 4. Disciplinary offences A member commits a disciplinary offence who—(a) is absent from duty without leave or good cause;(b) neglects the prompt and diligent performance of his duty;(c) neglects to obey a lawful order of a superior officer;(d) refuses to obey a lawful order of a superior officer;(e) is unfit for duty by reason of alcoholic drink;(f) is unfit for duty by reason of drugs taken otherwise than under medical attention;(g) with intent to deceive, destroys, mutilates, falsifies or conceals a document connected with the Government Flying Service or his duty;(h) with intent to deceive, makes a statement in the course of duty which is false in a material particular;(i) wilfully or negligently damages or destroys or negligently loses any Government or other property with which he has been provided or entrusted;(j) by his conduct, brings the public service into disrepute;(k) by his conduct, prejudices the good order and discipline of the Government Flying Service. 5. Disciplinary action on conviction for criminal offence (1) If a member is found guilty of or pleads guilty to a criminal offence and any appeal or other review is dismissed, abandoned, withdrawn or out of time, the member may be punished—(a) for a Senior Officer, under the Public Service (Administration) Order and government regulations; (71 of 1999 s. 3)(b) for an Officer, by the Controller or the Secretary but only after the Controller has notified the Officer of his intention to appoint a Senior Officer to review the criminal proceedings with a view to making a recommendation as to punishment under section 17 and inviting the Officer to make representations in writing to the Controller in writing in mitigation of punishment within 14 days of receipt of the notice under this paragraph.(2) The Controller shall appoint a Senior Officer to review criminal proceedings under subsection (1)(b) where he is of the opinion that the nature and seriousness of the proceedings are such as to warrant investigation from a disciplinary point of view.(3) The Controller or the Secretary may, after considering a copy of the record of proceedings for the criminal offence, the Officer’s record of service and the recommendation of the Senior Officer appointed under subsection (2) to review the matter, impose a punishment under section 17. Part III Procedure 6. Preliminary procedure If the Controller believes that a member may have committed a disciplinary offence, he shall inform the member of the circumstances giving rise to his belief and invite the member to submit an explanation in writing within a specified period not exceeding 7 days. 7. Admonishment procedure if offence admitted If a member admits a disciplinary offence, the Controller may admonish the member in writing instead of preferring a charge if the Controller considers admonishment a sufficient penalty. 8. Charging and plea (1) If, after the expiration of the period of 7 days referred to in section 6, the Controller considers that on the face of the evidence the member has committed a disciplinary offence, the Controller shall, unless he has admonished the member—(a) prefer against the member such charge or charges, relevant to the circumstances, as he thinks fit; and(b) appoint a Senior Officer to hear and determine the proceedings.(2) The Controller shall issue a charge in writing and the Senior Officer shall serve it on the member 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 Senior Officer will deal with the charge, being a time not earlier than 7 days from the date of service of the notice;(c) requiring the member, in respect of each charge, to notify the Senior Officer appointed to hear the charge, in writing within 5 days of service of the charge, whether he pleads guilty or not guilty; and(d) advising him that if he pleads guilty he may make submissions in writing in mitigation of punishment. 8A. Appointment of disciplinary tribunal and prosecutor (1) The Senior Officer appointed under section 8(1)(b) to hear and determine a charge constitutes the disciplinary tribunal for the charge.(2) The Controller must appoint for the purposes of the proceedings under this Regulation against a member charged a prosecutor who is a member not below the rank of the member charged.(L.N. 61 of 2012) 9. Representation of member charged with disciplinary offence at hearing (1) A member charged with a disciplinary offence may be represented at a hearing by—(a) a member of the choice of the member charged, other than the Controller, a member who may be involved in the proceedings under this Regulation to which the charge relates or a member who is a barrister or solicitor;(b) (subject to the Controller’s approval) a barrister or solicitor; or(c) any other person of the choice of the member charged who is approved by the Controller for the purpose,and the person specified in paragraph (a), (b) or (c) may conduct the defence on behalf of the member charged.(2) If the Controller gives approval under subsection (1)(b), the member charged may be represented at the hearing by a barrister or solicitor of the member’s choice.(3) Despite subsection (1), the member charged must attend the hearing in person.(4) If the member charged is represented at the hearing by a barrister or solicitor, the disciplinary tribunal and the prosecutor may separately be assisted by a barrister or solicitor at the hearing.(L.N. 61 of 2012) 10. Documents to be supplied to accused A member charged with a disciplinary offence shall, as soon as possible, be supplied with copies—(a) of his written statements made under section 6;(b) of the report, allegation or complaint on which the charge is founded (or so much of it as relates to him) and of any report on the charge even if any of them may be confidential; and(c) of any witness statement relating to the charge, and the witness’s name and address. 11. Procedure at hearing (1) A member charged with a disciplinary offence must attend at the place of hearing at the time of which notice has been given.(2) The disciplinary tribunal must read the charge to the member charged, who may then change his or her plea, if he or she so wishes.(3) If the member charged pleads guilty, the disciplinary tribunal must enter the plea on the official record of proceedings and ask if the member wishes to make any statement.(4) The member 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 member wishes to be taken into consideration by the disciplinary tribunal.(5) If the member 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 disciplinary tribunal may take the evidence of a witness by reference to a written statement made by the witness, which the witness may amend or add to, and be cross-examined on, 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 member charged or the defence representative may address the disciplinary tribunal only for the purpose of showing that no prima facie case has been established.(8) If it appears to the disciplinary tribunal that there is a prima facie case, it must ask if the member charged wishes to give evidence and call witnesses.(9) If the member charged gives evidence, the member may be cross-examined and re-examined and any witness called by the member 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 disciplinary tribunal and then the member charged or the defence representative may make an address in reply.(11) The disciplinary tribunal may ask any witness any question that it considers will assist in determining the issues raised.(12) The disciplinary tribunal may at any time call any witness whom it considers may be able to assist in determining the issues raised.(13) Evidence must not be taken on oath or affirmation.(14) The member charged, the defence representative, the prosecutor and any barrister or solicitor assisting the prosecutor may inspect any exhibit produced to the disciplinary tribunal by a witness.(15) The disciplinary tribunal may adjourn the hearing from time to time as it considers necessary for the proper determination of the proceedings.(L.N. 61 of 2012) 11A. Record of proceedings (1) The disciplinary tribunal must make, or cause to be made, a written record of the proceedings of a hearing.(2) The disciplinary tribunal 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 a member charged with a disciplinary offence wishes to appeal under section 21, the member may make a request to the disciplinary tribunal for a copy of the official record of proceedings.(4) On a request made under subsection (3), the disciplinary tribunal must supply the member charged with a copy of the official record of proceedings.(L.N. 61 of 2012) 12. Adding or amending charges (1) The prosecutor may amend a charge or add a further charge at any time prior to the disciplinary tribunal communicating a finding to the member charged.(2) The disciplinary tribunal must read and explain the amended or new charge to the member 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. 61 of 2012)(3) Section 11 applies in respect of the amended or new charge. (L.N. 61 of 2012) 12A. Proceedings in the absence of member charged Where a member charged with a disciplinary offence is required to appear in person in any proceedings under this Regulation and repeatedly fails to appear, the disciplinary tribunal may proceed in the absence of the member if satisfied that the member has no reasonable excuse for the failures.(L.N. 61 of 2012) Part IV Punishment 13. Proceedings after hearing of charge At the conclusion of the hearing of a charge including any adjourned period as the disciplinary tribunal may require to consider the evidence, the disciplinary tribunal shall—(a) if in its opinion the evidence does not show that a disciplinary offence has been committed, dismiss it;(b) if in its opinion the evidence does show that a disciplinary offence has been committed, refer the case to the Secretary or to the Controller as the case may require. 14. Reference of case to Secretary or Controller (1) If a disciplinary tribunal refers a case to the Secretary or the Controller under section 13(b), it must forward to the Secretary or the Controller—(a) a copy of the official record of proceedings (including the charge) certified by itself to be a true copy of the original;(b) the record of service of the member charged; and(c) a report setting out—(i) its reasons for considering the charge proved; and(ii) its recommendation with respect to punishment or otherwise.(2) The disciplinary tribunal must inform the member charged of the reference by serving on the member a notice in writing.(3) The member charged may make representations in writing to the Secretary or the Controller within 14 days from the service of the notice under subsection (2) or any further period that the Secretary or the Controller may allow.(L.N. 61 of 2012) 15. Procedure when case referred to Secretary or Controller Upon reference to him of a case and after consideration of any representations made by the member, the Secretary or the Controller may—(a) if he is of the opinion that the charge has not been proved, either—(i) dismiss it; or(ii) order further investigation or a fresh investigation in such manner and by such person or persons as he thinks fit;(b) if he is of the opinion that the charge is proved, or if, after any further or fresh investigation ordered under paragraph (a), he is of such opinion, impose a punishment within his powers. 16. Punishment imposed to be entered in record of service (1) The Controller shall enter in the member’s record of service of every punishment imposed against him.(2) The Controller shall remove an entry of an admonishment from a member’s record of service one year after the admonishment was given unless during the year he was punished for another offence. 17. Punishment of members for disciplinary offence (1) The Controller may punish a member who is found guilty of or pleads guilty to a disciplinary offence by—(a) reduction in rank;(b) stoppage or deferral of increment;(c) a fine not exceeding one month’s salary (excluding allowances);(d) severe reprimand;(e) reprimand.(2) The Secretary may punish a member who is found guilty of or pleads guilty to a disciplinary offence by—(a) the punishments described in subsection (1);(b) dismissal without retirement benefits;(c) compulsory retirement with full retirement benefits or reduced retirement benefits or without retirement benefits. (6 of 2009 s. 15) Editorial Note: This section was amended by section 15 of the Disciplined Services Legislation (Miscellaneous Amendments) Ordinance 2009 (6 of 2009). See section 30 of that Amendment Ordinance for the related transitional provisions. 18. Order for payment for damage, etc. to equipment, etc. The Secretary and the Controller may include in an order of punishment an order for the member to pay an amount not exceeding the cost of replacing or repairing any article of clothing, equipment or other property with which the Government has provided or entrusted him and which he has lost or damaged or contributed to its loss or damage. 19. Summary dismissal of Officer for absence from duty In addition to any other disciplinary provisions applicable to him under this Regulation, where an Officer is absent from duty without leave for a period exceeding 21 days and it is reported to the Secretary that—(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 Controller,the Secretary may without further proceedings summarily dismiss the Officer. Part V Reviews and Appeals 20. Review Where a disciplinary tribunal has found a member guilty of a disciplinary offence or the Controller has admonished him, a Senior Officer shall, within 7 days of the finding or the admonishment, review the finding or admonishment and either—(a) confirm the finding or admonishment; or(b) refer the finding or admonishment back to the disciplinary tribunal or the Controller, as the case may require, with a recommendation. 21. Appeals (1) A member (including one who has been dismissed) may appeal to the Secretary in writing within 14 days from the day on which the member is informed of— (L.N. 61 of 2012)(a) a finding by the disciplinary tribunal that he is guilty of a disciplinary offence;(b) any punishment imposed, other than under section 22,against the finding or punishment.(2) The Secretary may delegate to the Secretary for the Civil Service, or to a public officer not below the rank of Director of Bureau, the power to determine an appeal. (71 of 1999 s. 3) 22. Powers of Secretary on appeal Upon an appeal, the Secretary may—(a) confirm or reverse the finding;(b) confirm the punishment;(c) subject to section 25, substitute any other punishment which could have been imposed by him under section 17;(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. Further evidence may be admitted For the purpose of any appeal against a finding, the Secretary may—(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. 24. Suspension of punishment pending appeal In the event of an appeal, any punishment (other than a severe reprimand or reprimand) imposed on a member shall be suspended until the appeal is disposed of, withdrawn or abandoned. 25. Greater punishment not to be imposed without opportunity to make representations The Secretary shall not impose a greater punishment under section 22 without first allowing the member a reasonable opportunity to be heard or to make representations in writing as to why the punishment should not be increased.