Paper for the Bills Committee on
Commissioner for Administrative Complaints (Amendment) Bill 1996
COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS (AMENDMENT) BILL 1996

This paper aims to provide a written response to the six questions raised by Members at the first meeting of the Bills Committee held on 14 October 1996.

THE NOMENCLATURE - OMBUDSMAN

2. According to the International Ombudsman Institute Directory, 43 countries and territories adopted the title "Ombudsman" in naming the office which carries out the functions of or akin to those of an ombudsman. Thirty-seven other countries and territories call their ombudsman by other titles. Please refer to Annex A for details.

PROPOSED AMENDMENT TO SECTION 16(1)

3. The proposed amendment to Section 16(1) of the Commissioner for Administrative Complaints (COMAC) Ordinance will make the reporting requirements of COMAC under the section discretionary instead of mandatory. COMAC considers the proposed legislative amendment necessary to provide him with greater flexibility in the deployment of resources to cope with the enormous increase in caseload which has grown by 15 fold when compared with the average in the period when there was no direct access to his Office.

4. Section 17 of the COMAC Ordinance requires the Commissioner to inform the complainant of the result of his investigation, including inter alia any report or recommendation made under Section 16. If the proposed amendment comes into effect, COMAC will continue to inform the complainant of the result of his investigation. However, if COMAC, at his discretion, decides not to make a report to the organisation concerned, the complainant will likewise not be provided with any report.

5. COMAC considers that for simple and minor complaints, it will be more appropriate to inform the complainant of the result of his investigation than provide him with a full investigation report which requires first the production of a draft results report, then a final results report. The reporting requirements in the Ordinance has taken a large proportion of his resources and caused delays in the processing of complaints. COMAC considers that a balance has to be struck in order to achieve speed and quality of investigation which are the hallmark of ombudsmanship. Given "justice delayed is justice denied", very often complainants do wish to have their complaints addressed and resolved as soon as possible rather than going through the full investigation procedure.

INCLUSION OF THE SECRETARIATS OF THE INDEPENDENT POLICE COMPLAINTS COUNCIL AND THE PUBLIC SERVICE COMMISSION

6. The Secretariats of the Independent Police Complaints Council (IPCC) and the Public Service Commission (PSC) should not be brought within COMACs general jurisdiction. The two Secretariats report to their respective Council or Commission which are independent bodies outside COMACs jurisdiction

7. If COMAC were to investigate general complaints against the IPCC Secretariat, he would in effect be investigating and reviewing the decisions of the IPCC which are outside his jurisdiction. The IPCC Secretariat reports to the IPCC on all operational matters. Complaints against the IPCC Secretariat, if any, will be brought to the attention of IPCC. As COMAC or his representative is a member of IPCC, there is no need to include the IPCC Secretariat in Part I of Schedule 1 in the Bill. Furthermore, the IPCC Secretariat may, under express or delegated authority of the IPCC, question the modus operandi of crime prevention, detection or investigations of individual cases. Placing the IPCC Secretariat under COMACs general jurisdiction may create an anomaly vis-à-vis the proposed item 10 of Schedule 2.

8. The PSC is an independent statutory body whose jurisdiction is clearly defined under the PSC Ordinance, which stipulates its legal powers and how its business should be conducted. The PSC deals with personnel management matters which are outside COMACs jurisdiction as stipulated under item 5 of Schedule 2 of the COMAC Ordinance. The Commissions independence is specifically safeguarded to ensure that it could perform its functions free from external influence or intervention. The duties of the PSC Secretariat are to provide secretarial and executive support to the Commission from which they take instructions. It is therefore inappropriate for the PSC Secretariat to be subject to the general purview of COMAC which is another statutory body with completely different statutory functions. Perhaps what is more significant is that the PSC Secretariat deals with Government departments. Unlike other statutory bodies, PSC does not have a public remit and the PSC Secretariat staff have no direct contact with members of the public.

PROPOSED ITEM 10 OF SCHEDULE 2

9. COMAC is not allowed under Section 8 of the Ordinance to undertake or continue any investigation that relates to any action or matter specified in Schedule 2. Insofar as any action taken in relation to the prevention, detection or investigation of any crime or offence is concerned, the proposed item 10 of Schedule 2 will reduce the existing powers of COMAC over the law enforcing agencies now under his jurisdiction.

10. The proposed amendment is basically to safeguard the law enforcement functions of the Police and the ICAC. The Police and the ICAC have agreed that in the event of a complaint under the Code to COMAC against the Police or the ICAC and is related to sensitive information on prevention, detection and investigation of crime or offence, a directorate officer of COMACs Office, or COMAC himself if necessary, may be given access to the relevant information so as to determine whether or not the refusal is justifiable under the Code.

DISPUTE OVER COMACS JURISDICTION

11. Section 9 of the Ordinance provides that -

"In determining whether to undertake, continue or discontinue an investigation, the Commissioner shall, subject to the provisions of this Ordinance, act in accordance with his own discretion; and any question whether a complaint is duly made under this Ordinance shall be determined by the Commissioner."

In the first place, it would be for COMAC to decide whether he is acting within his powers in accordance with the provisions of the Ordinance. An organisation disagreeing with his decision could seek a judicial review of COMACs act.

INFORMATION AVAILABLE FROM THE POLICE UNDER THE CODE ON ACCESS TO INFORMATION

12. On formal extension of the Code to them, branches and departments will make available to the public a list of their records by category as a ready reference. The draft list prepared by the Police is at Annex B. The Code on Access to Information (the Code) authorises and requires civil servants to provide information unless there are specific reasons for not doing so. The department can only refuse access to information in strictly defined circumstances as set out in Part 2 of the Code, which must be explained in the event of a refusal. The Code also provides for departmental review and complaints to COMAC if a member of the public considers that the department has failed to comply with any provision of the Code.

Administration Wing, CSO
24 October 1996

Annex B

Royal Hong Kong Police -- List of Records by Category

General Administration

Administration

Associations/Clubs/Societies

Catering Service

Computer

Conferences/Committees/Meetings

Courts & Magistracies-Policy/Procedure/Buildings/Security

Emergency Stores & Equipment

Exhibitions/Fairs

Forms

Identity Cards

Office Procedure & Practice

Police Band

Police Force Expansion & Planning

Publications

Returns, Reports and Statistics

Stores & Inventory

Uniform & accrutrement

Visits

Warrants

Accommodation

Police Buildings

Quarters

Finance & Accounts

Audit

Estimates

Finance

Communication

Broadcasting

Communications

Public Telephone

Personnel & Establishment

Allowances/Rewards/Bonuses/Advances

Appointments

Circulars

Conditions of Services

Decorations/Medals/Honours

Discipline

Duties

Establishments

Her Majestys Overseas Civil Services

Increments & Salaries

Leave & Passages

Medical Services

Numbering of Ranks & File

Pensions

Promotions

Recruitment

Retirement

Secondment

Transfer & Postings

Welfare & Sports

Training

Courses & Training

Education

Examinations

Instructional Films

Arms & Ammunitions

Licensing

Rifle & Revolver Ranges

Emergency & Rescue

Air Sea Rescue

Natural Disasters

Relief in Emergency

Traffic & Transport

Aircraft

Driving Tests

Lighting/Road/Perimeter Fence

Marine Police Launches

Parking

Rights of Way

Road Safety

Streets/Roads/Routes

Traffic

Traffic Lights & Aids

Transport

Vehicles

Relations with Public and other Institutions

Charitable Organisations

Complaints

Consulates

Inquiries from the Public

Public Morals

Public Relations

Relation with other countries and organisations

Social Engagements

Tourists & Tourist Agencies

Operations

Accidents & Incidents involving Police Personnel or Property

Aerodromes & Airports

Agriculture/Forestry/Fisheries/Gardens

Alarms

Auxiliary Services

Boundaries & Beats

Cemeteries/Cremation/Burial Places

Ceremonial/Parades

Civil Defence

Commercial Films

Crime

Customs & Preventive Services

Dangerous Goods

Death

Deportation

Factories

Fingerprints

Fire

Guards & Watchmen

Hawker Control

Immigration

Juveniles

Kowloon Walled City

Legal Gambling

Markets

Mendicants

Missing Persons

Narcotics

Organisations & Unions

Pharmacy & Poisons

Police Assistance

Police Dog Unit

Police Exercise

Police Precautions in Public Holidays & Celebrations

Police Procedure

Police Protection of Public Venues

Prevention of Obstruction of Roads, Pavements and Open Spaces

Prisoners

Public Property in Police Hands

Riots/Civil Disturbances/Strikes

Schools

Security & Defence

Territorial Waters

Village Penetration Patrols and Village Affair

Woman & Girl Offenders

Miscellaneous

Crown Lands

Legislation