LegCo Paper No. CB(2) 433/96-97
(These minutes have been seen by
Ref : CB2/BC/52/95
Minutes of the first meeting of the Bills Committee on the Commissioner for Administrative Complaints (Amendment) Bill 1996
held on Monday, 14 October 1996 at 4:30 p.m. in Conference Room A of the Legislative Council Building
Members Present :
Hon Mrs. Selina CHOW, OBE, JP ( Chairman )Members Absent:
Hon Bruce LIU Sing-lee ( Deputy Chairman )
Hon Ronald ARCULLI, OBE, JP
Hon James TO Kun-sun
Hon LEE Cheuk-yan
Hon CHAN Wing-chan
Dr Hon Anthony CHEUNG Bing-leung
Hon NGAN Kam-chuen
Hon Christine LOH Kung-wai*Public Officers attending:
Hon Albert HO Chun-yan*
Hon IP Kwok-him*
Clerk in attendance :
- Mr. William HUI
- Deputy Director of Administration
- Mrs. Nancy HUI
- Assistant Director of Administration
- Mr. Jeremy CROFT
- Principal Assistant Secretary (Home Affairs)
- Mr. K. F. CHENG
- Senior Assistant Law Draftsman
Staff in attendance :
- Mrs. Betty LEUNG
- Chief Assistant Secretary (2) 3
- Mr. Jimmy MA
- Legal Adviser
- Miss Erin TSANG
- Senior Assistant Secretary (2) 7
Election of chairman and deputy chairman
Mrs. Selina CHOW and Mr. Bruce LIU were elected chairman and deputy chairman of the Bills Committee respectively.
Meeting with the Administration
2. The chairman welcomed representatives from the Administration who attended the meeting. Upon the chairmans invitation, Mr. William HUI briefed members on the background and objectives of the Bill, which had been set out in the LegCo Brief issued by the Administration Wing in July 1996.
Title of Commissioner for Administrative Complaints ( COMAC )
3. In response to Dr. CHEUNG Bing-leung, Mr. William HUI said that the title "Ombudsman" had been well established internationally for long and there was an international organisation known as "International Ombudsman Institute". Dr. CHEUNG then requested the Administration to provide the following pieces of information:-
|Which and how many countries, that had similar institutions as Hong Kongs Office of the Commissioner for Administrative Complaints (OCAC), adopted the title of Ombudsman;||Adm|
- Whether all signatories of the said Institute used the title "Ombudsman"; and
- How other countries ( whether members of the said Institute or not ) called their "Commissioner for Administrative Complaints".
Concerning the Chinese title of COMAC, Mr. Bruce LIU asked why the Administration did not propose to change it to "; so as to make it correspond to the proposed English title. Mr. William HUI informed the meeting that the Ombudsman system originated in Sweden and the word "Ombudsman" was in fact Swedish, not English, but was later adopted widely for international use. As for its Chinese title, there was not any Chinese term which was recognised or accepted internationally. In light of the above and the fact that the local community was very familiar with the present Chinese title, i.e. "........... ", the Administration did not intend to bring about any change to it.
Flexibility to handle complaints
4. In response to Mr. CHAN Wing-chans concern, Mr. William HUI told the meeting that section 16(1) of the Commissioner for Administrative Complaints Ordinance ( the Ordinance ) required COMAC to make report to the head of the organisation so affected. However, in view of the increase in caseload from 1,211 cases in 1994/95 to 2784 cases in 1995/96 and the fact that some of the cases were of relatively simple and minor nature, the Administration opined that flexibility should be given to COMAC and the reporting requirements in the section could be made discretionary instead of mandatory. Yet, members worried that such amendment might deprive the complainants right to be informed of the results of the investigation. Members then decided that COMAC should be invited to discuss with them at the next meeting on the necessity of the amendment.
Addition of Part II to Schedule 1 of the Ordinance
|5. Dr. CHEUNG Bing-leung noted that the Administration suggested to add a Part II to Schedule 1 of the Ordinance to contain the Police, the Independent Commission Against Corruption (ICAC), the Secretariats of the Independent Police Complaints Council (IPCC) and the Public Service Commission (PSC), so that the Ombudsman could investigate any action of them in relation to the Code on Access to Information (the Code) in the case of any person who claimed to or might have sustained injustice in consequence of maladministration in connection with that action. He appreciated that there were existing internal bodies to investigate complaints against the Police and ICAC and thus it was not necessary for COMAC to handle those complaints to save the duplication of efforts. However, he wondered why the Secretariats of IPCC and PSC were not included in Part I of Schedule 1. In reply, Mr. William HUI said that complaints about maladministration against the Secretariats of IPCC and PSC could be dealt with by their respective organisations. Yet, Mr. James TO enquired why the LegCo Secretariat and the Mass Transit Railway Corporation (MTRC) were in Part I of Schedule 1 since they also had the LegCo Commission and the Board of Directors of MTRC to govern them. The Administration then undertook to reply in writing the reasons for not including the Secretariats of IPCC and PSC in Part I of Schedule 1 to the Ordinance.||Clerk
(Due to other commitments, Mrs. Selina CHOW left the meeting at this juncture and Mr. Bruce LIU took over the chairmanship of the meeting for the ensuing discussion.)
Code on Access to Information
|6. In reply to Mr. James TO, Mr. Jeremy CROFT told the meeting that any person who was refused by the Police to have access to information under the Code was entitled to an internal review and upon the enactment of the Bill, to file a complaint with COMAC. In the latter case, COMAC could investigate into the matter under his proposed statutory power to ascertain whether the decision made by the Police was proper and justified under the Code. If in the course of investigation, it came across information which was considered sensitive, only COMAC himself or directorate officers of OCAC were allowed to have access to those sensitive information in order to determine whether those information actually fell within a category which the Police could justifiably refuse for disclosure. Mr. William HUI then supplemented that in the event where the Police considered that the information should not be disclosed to COMAC, the Police might seek a certificate from the Chief Secretary as provided in section 14(3) of the Ordinance. Yet, Mr. TO remarked that the section only dealt with circumstances in which investigation or detection of crime was prejudiced and did not apply to situations relating to prevention of crime. In this respect, he wondered whether the said section was applicable. Legal Adviser then advised the meeting there was no such mechanism provided in the Bill as to who should decide on a dispute, such as that arising from the proposed Item 10 of Schedule 2 and the matter would have to be adjudicated by the court. At Mr. TOs request, the Administration agreed to approach the Police to ask what types of information could be obtained from the Police under the Code.||Adm|
Progressive introduction of the Code
|7. Mr. James TO asked and Mr. CROFT replied that it was a policy decision that the Code would apply to all government bodies, although it was accepted for practical reasons that the programme had to be introduced progressively. It had currently extended to 82 agencies and would extend to the remaining agencies by the end of the year.||Adm|
8. In reply to Mr. CHAN Wing-chan, Mr. William HUI said that since the Administration had held the view that the amendments would have greater impact on IPCC and PSC than on the general public, it had decided to consult the Chairmen of the two bodies rather than to launch a public consultation exercise and the two Chairmen had raised no objection to the provisions of the Bill.
COMACs existing power of investigation
9. With reference to the proposed Item 10 of Schedule 2, Mr. James TO asked and Mr. K. F. CHENG confirmed that it would apply to law enforcement agencies other than the Police and ICAC as section 8 of the Ordinance had already spelt out that COMAC could not undertake or continue any investigation that related to any action or matter specified in Schedule 2. The proposed mechanism would have the effect that any action taken in relation to the prevention, detection or investigation of any crime or offence would not be subject to COMACs investigation. In this respect, Mr. TO expressed his concern that COMACs existing investigation power over other law enforcement agencies like the Agricultural and Fisheries Department and the Inland Revenue Department would be undermined due to the addition of such clause and he asked whether it was the policy intention in making such addition. The Administration would provide written answer to the above point after the meeting.
Date of next meeting
|10. The next meeting would be held on Tuesday, 29 October 1996 at 4:30 p.m. in Conference Room A of the LegCo Building .||Adm|
11. There being no other business, the meeting ended at 5:45 p.m.
24 October 1996
* - other commitments
Last Updated on 15 December 1998