COMMISSIONS OF INQUIRY ORDINANCE

COMMISSIONS OF INQUIRY ORDINANCE

LAWS OF HONG KONG

COMMISSIONS OF INQUIRY ORDINANCE

CHAPTER 86





CHAPTER 86

COMMISSIONS OF INQUIRY ORDINANCE

ARRANGEMENT OF SECTIONS

Section...................................... Page

1...........Short title ......................... ... ... ... ... ... ... ... 2

2....................Appointment of Commission ... ... ... ... ... ... ... ... ... 2

3..................Directions to Commission ... ... ... ... ... ... ... ... ... ... 2

4...............Powers of Commission ............ ... ... ... ... ... ... ... ... 3
5...............Conduct of inquiry .............. ... ... ... ... ... ... ... ... 5
6...............Right to representation ......... ... ... ... ... ... ... ... ... ... 5

7.............................Use of evidence in civil and criminal proceedings ... ... ... ... ... 6

7A. Production of documents, and evidence, to Commission's inspectors ... ... 6

8..................Contempts to be offences ... ... ... ... ... ... ... ... ... ... 6

9.........................Contempts dealt with by Commission ... ... ... ... ... ... ... 7
10........................Commission to have powers of judge ... . ... ... ... ... ... 8

11.....................Inquiry to be a judicial proceeding ... ... ... ... ... ... ... ... 8
12.....................Protection of Commission and witnesses ... ... ... ... ... ... ... 8
13.....................Police and bailiffs to assist Commission ... ... ... ... ... ... ... 8

14............Cost of inquiry ................ ... ... ... ... ... ... ... ... ... 9

15..........................Protection of person publishing true account ... ... ... ... ... ... 9

Schedule........................................ ... ... ... ... ... ... ... ... 9





CHAPTER 86

COMMISSIONS OF INQUIRY

To provide for commissions of inquiry and for purposes connected
therewith.

[12th July, 1968.1

1. This Ordinance may be cited as the Commissions of Inquiry
Ordinance.

2. (1) The Governor in Council may appoint one or more
Commissioners (hereinafter referred to as a Commission) to inquire into
the conduct or management of any public body, the conduct of any
public officer or into any matter whatsoever which is, in his opinion, of
public importance.

(2) When appointing a Commission under subsection (1) the
Governor in Council may

(a)nominate a Chairman if 2 or more Commissioners are
appointed, and confer on such Chairman a second or casting
vote for use where the Commission shall, in any case, be
equally divided on any question arising during the
proceedings;

(b)fix the quorum at meetings thereof if 2 or more Commissioners
are appointed;

(c)appoint a secretary to the Commission, assistant secretaries
and other staff;

(d) appoint a legal adviser to the Commission;

(e)appoint additional Commissioners or persons in substitution
for Commissioners who may die, resign, refuse to act, or
become incapable of acting.

(3) Where a new Commissioner has been appointed under
subsection (2), it shall not be necessary for any evidence which may
have been taken before the Commission prior to such appointment to be
retaken.

(4) The appointment of a Commission shall be published in the
Gazette.

3. The Governor in Council may specify the subject of the inquiry
and may direct

(a)when and where the inquiry is to be held, to whom and by
what time a report thereon is to be rendered, and may from
time to time enlarge the time within which such inquiry is to be
held and such report rendered;





(b)without prejudice to the powers of the Commission to receive
and consider such other evidence as it may think fit, what
material should be received and considered by the
Commission;

(c)what matters should be outside the terms of reference of the
Commission;

(d)that the evidence of certain persons or classes of persons be
taken, either orally or in writing, and that certain documents or
classes of documents be inspected by the Commission;

(e)without prejudice to the powers conferred upon the
Commission by section 4(1)(i), that the holding of the inquiry
or parts thereof be in camera; (Amended, 49 of 1976, s.2)

(f) that the Commissioners take the oath or affirmation in the form
set out in the Schedule; and

(g)that the Commission shall have and exercise the powers
conferred by section 9 to punish all or any of the contempts
specified in section 8.

4. (1) The Commission may, for the purpose of complying with the
directions issued under section 3 and for conducting the inquiry
generally

(a)receive and consider any material whether by way of oral
evidence, written statements, documents or otherwise,
notwithstanding that such material would not be admissible as
evidence in civil or criminal proceedings;

(b)determine the manner in which such material shall be received
and what persons or class of persons shall be permitted or
required to give evidence:

Provided that the contents of any document submitted to
the Commission, not being of a scurrilous or offensive nature,
shall be considered by the Commission, notwithstanding that
the person submitting such document is, in addition, permitted
or required to give evidence;

(c)require any person who wishes to give evidence before the
Commission to submit a summary in writing of the evidence
proposed to be given;

(d)summon any person in the form set out in the Schedule to
attend to give evidence or to produce any article or document;

(e)issue warrants of arrest to compel the attendance of any
person not complying with a summons issued under
paragraph (d);

(f) administer oaths and affirmations;

(g)examine on oath, affirmation or otherwise any person
attending before the Commission and require such person





to answer all questions put by or with the consent of the
Commission and produce any article or document in his
possession or under his control;

(h)award any person attending before the Commission such sum
as in the opinion of the Commission represents the loss to that
person occasioned by the time spent in such attendance;

(i)hold in camera, or exclude any person (including any person
implicated or concerned therein and his legal representatives)
from, the whole or any part of the inquiry:

Provided that any legal representative entitled to appear
by virtue of the provisions of section 6

(i) may only be excluded from such part of the inquiry as is
held in camera;

(ii) shall not in any event be so excluded while his client is
giving evidence;

(j)prohibit the publication to or disclosure by any person
attending before the Commission of all or part of the material
received by the Commission;

(k) enter and inspect any premises;

(1)issue warrants for the searching of premises and the seizure
therein of any article or document or any class of articles or
documents specified in the warrant (as being likely to be of
evidential value for the purposes of the inquiry);

(m) determine the procedure to be followed at the inquiry and the
form of any summons, warrant, or other document made or
issued by the Commission;

(ma) where the Commission has been appointed to inquire into the
conduct or management of a public body or any other body of
persons, corporate or unincorporate, then, subject to
subsection (3), appoint, on such terms as to remuneration as
the Financial Secretary may approve, one or more inspectors

(i) to inspect all the books and documents of or relating to
the affairs of such body; and

(ii) if the Commission is satisfied that such body has, or has
had, an association with any other public body or body of
persons, corporate or unincorporate, which is or may be
relevant to the subject of the Commission's inquiry, to inspect
all the books and documents of or relating to the affairs of
such other body,

and to report thereon to the Commission in such manner and
within such period or further period as the Commission may
direct; and (Added, 49 of 1976, s. 3)

(n)exercise such other powers as may be necessary for the
purposes of the inquiry.





(2) Without prejudice to the powers conferred on a Commission by
subsection (1)(ma), where the Commission consists of one
Commissioner he may himself, and where the Commission consists of
more than one Commissioner one or more of the Commissioners,
selected by the Commission may, subject to subsection (3), inspect the
books and documents referred to in subsection (1)(ma), and in so doing
he or they shall, for the purposes of this Ordinance, be deemed to have
been duly appointed an inspector or inspectors, as the case may be,
under subsection (1)(ma). (Added, 49 of 1976, s. 3)

(3) The power to appoint an inspector or inspectors under
subsection (1), and the powers conferred by subsection (2), shall not be
exercised by a Commission or Commissioner without the consent of the
Governor in Council, and in giving such consent the Governor in
Council may limit the power of inspection to inspection only of the
books and documents referred to in subsection (1)(ma)(i) or, where
consent is given in relation to the inspection of books and documents
referred to in subsection (1)(ma)(ii), may limit the power of inspection
to inspection only of the books and documents of or relating to the
affairs of a particular public body or other body of persons, corporate or
unincorporate. (Added, 49 of 1976, s. 3)

5. Without derogating from the generality of the power conferred
under section 4(1)(m) the Commission may- (Amended, 49 of 1976, s.
4)

(a)order the manner in which any person shall give his oral
evidence and may specify that this shall be by way of cross-
examination without any examination-in-chief, and

(b)determine who may address the Commission, on what matters
and in what order.

6. (1) Any person whose conduct is the subject of an inquiry, or
who is implicated or concemed in the subject matter of the inquiry, shall,
subject to the provisions of section 4, be entitled to be represented by a
barrister or solicitor at the inquiry.

(2) For the purpose of subsection (1), the Commission shall
determine whether the conduct of any person is the subject of the
inquiry or whether a person is in any way implicated or concemed in the
subject matter of the inquiry.

(3) The Governor, any Government department and any public
officer shall, notwithstanding the provisions of subsections (1) and (2)
but subject to the provisions of section 4, be entitled to be represented
at the inquiry by a legal officer, or by a barrister or solicitor who may

(a)address the Commission on any matter on which he is so
instructed by the Chief Secretary or by the Attorney General,
and (Amended, L.N. 226176)





(b) produce evidence in such form as the Commission may permit
on any matter.

(4) The Commission may appoint a legal officer nominated by the
Attorney General, a barrister or a solicitor to act as counsel for the
Commission.

7. Evidence given by any person before the Commission shall not
be admissible against him in any civil or criminal proceedings by or
against him, except where he is charged with any offence under Part V
(Perjury) of the Crimes Ordinance or is proceeded against under section
8 or 9.

7A. (1) It shall be the duty of all officers and agents of a public
body or other body of persons to produce to an inspector appointed
under section 4(1)(ma) to inspect its books and documents, all books
and documents in their custody or power of or relating to such body's
affairs or the affairs of any other body of persons the books and
documents of which the inspector is appointed under section 4(1)(ma) to
inspect, and otherwise to give to the inspector all assistance that they
are reasonably able to give.

(2) In this section, any reference to officers or to agents of a public
body or other body of persons shall include past, as well as present,
officers or agents, as the case may be, and for the purposes of this
section 'agents' shall include the bankers and solicitors of such body
and any person employed by such body as auditor, whether such
person is or is not an officer of such body.

(Added, 49 of 1976, s. 5)

8. (1) Any person who-

(a)fails without reasonable excuse to attend at the time and place
specified in a summons issued under section 4;

(b)refuses to take an oath or make an affirmation on being
required to do so under section 4;

(c)refuses to answer any question put by or with the consent of
the Commission or to produce any article or document in his
possession or under his control on being required to do so
under section 4;

(ca) being an officer or agent of a public body or other body of
persons within the meaning of section 7A

(i) after the appointment of a Commission and with intent to
avoid or prevent production, destroys, suppresses, defaces or
makes away with any book or document that it would be his
duty to produce to an inspector in the event of an inspector
being appointed under section 4(1)(ma), or

(ii) refuses, without lawful authority or reasonable excuse,
to produce any such book or document to an inspector so
appointed, or





(iii) refuses, without lawful authority or reasonable excuse,
to answer any question put to him by an inspector so
appointed with respect to the affairs of such body or any other
body the books and documents of which the inspector has
been appointed to inspect; (Added, 49 of 1976,s.6)

(d)wilfully interrupts the proceedings of the Commission or
otherwise misbehaves during any hearing of the Commission;

(e)having been summoned to attend, leaves the place in which a
Commission is being held without the permission of the
Commission,

shall be guilty of an offence and liable on summary conviction to a fine
of $1,000 and to imprisonment for 3 months.

(2) Any person who-

(a)wilfully hinders or deters any person from attending, giving
evidence or producing any article or document;

(b)threatens, insults or causes any loss to be suffered by any
person who has attended before the Commission, on account
of such attendance;

(c)threatens, insults or causes a loss to be suffered by any
Commissioner at any time on account of the performance of
his duties as a Commissioner;

(d)publishes or otherwise discloses any material which the
Commission had prohibited him from publishing or disclosing;

(e)publishes or otherwise discloses any material received by the
Commission in camera,

shall be guilty of an offence and liable on conviction upon indictment to
a fine of $10,000 and to imprisonment for 1 year.

(3) It shall be a good defence in the case of a prosecution under
subsection (2)(e) for the person charged to prove to the satisfaction of
the court that he did not know nor had any reason for knowing that the
material published or disclosed had been received by the Commission in
camera.

9. (1) The Commission may, if so empowered under section 3, deal
summarily as a contempt with any offence specified in section 8 which is
committed in its presence, and may impose the sentence prescribed by
that section.

(2) In the case of contempts not committed in the presence of the
Commission, it may, if so empowered under section 3, summon the
offender to appear before it at the time and place specified in the
summons, there to show cause why the offender should not be
sentenced for the contempt, and may impose the sentence prescribed by
section 8.





(3) The Commission may issue warrants of arrest to compel the
attendance of any person not complying with a summons issued under
subsection (2).

(4) Any sentence of imprisonment imposed under this section may
be remitted where the Commission is of the opinion that the contempt
has been purged.

(5) Any person aggrieved by any decision, order or sentence of the
Commission in exercise of the powers conferred by subsection (1) or (2)
may appeal to a judge of the High Court, in the same manner as if it were
an order of a magistrate in respect of which an appeal lies under section
113 of the Magistrates Ordinance, in accordance with rules made by the
Chief Justice.

10. For the purposes of enforcing the payment of any fine imposed
or giving effect to any warrant of arrest or sentence of imprisonment or
for other like purposes, the Commission shall have the powers of a
judge. In the exercise of such powers and for the purpose of issuing
warrants, summoning persons and the exercise of other like powers the
Chairman may do all necessary acts in the name of the Commission.

11. (1) Every inquiry held under this Ordinance shall be deemed to
be a judicial proceeding.

(2) Any conduct which would constitute contempt of the High
Court or of a judge, if it were committed towards the High Court or a
judge as the case may be, shall be a contempt of a Commission and may
be dealt with and punished by a judge of the High Court as a contempt
of the High Court.

12. (1) No Commissioner shall be liable to any suit or other
proceeding for any act or thing done by him bona fide as such
Commissioner:

Provided that nothing in this subsection shall be deemed to limit
the power of the High Court to make an order of mandamus, certiorari
or prohibition in relation to proceedings before a Commission.

(2) All evidence given before a Commission shall be absolutely
privileged, and no witness giving such evidence shall be liable to any
suit or other civil proceeding in respect thereof.

(3) A legal officer, barrister or solicitor appearing before a
Commission, whether as counsel for the Commission or otherwise under
or by virtue of section 6, shall be entitled to the same immunities as if he
were appearing for a party in proceedings before the High Court
(Added, 49 of 1976, s. 7)

13. Police officers and bailiffs of the court shall assist any
Commission conducting an inquiry under this Ordinance for such





purposes as the Commission may require and may do all such things as
are necessary for the purpose of rendering such assistance.

14. The cost of any inquiry conducted under this Ordinance,
including any sums awarded under section 4(1)(h), shall be a charge on
the general revenue of the Colony.

15. Subject to section 8(2)(d) no person shall be liable to any civil
or criminal proceedings by reason of his publishing a true account of
any evidence taken in public before a Commission or of any report of a
Commission published by the authority of the Governor.

SCHEDULE

FORM 1 [sec. 3.1

Form of oath or affirmation to be taken by a Commissioner

I . ...............swear by Almighty God (solemnly

promise and declare) that 1 will diligently inquire into the matters prescribed in
the instrument appointing this Commission and will truly and faithfully execute
the powers and trusts vested in me by the Commissions of Inquiry Ordinance
(Chapter 86) according to the best of my knowledge and judgment.

FORM 2 [sec. 4.1

Summons to a witness

To A.B. [name of person summoned and his address].

You are hereby summoned to appear before the Commission appointed by His
Excellency the Governor to inquire [state subject matter of inquiry]

at [place] ...........upon the day

.at .o'clock in the ....noon

such inquiry, and you are required to bring
with you [specify documents, etc.] ..............................

Given under the hand of ............. Commissioner,

this ....day of ....19

Signature .........................................
Originally 28 of 1968. 49 of 1976. L.N. 226/76. Short title. Appointment of Commission. Directions to Commission. Schedule, Form 1. Powers of Commission. Schedule, Form 2. Conduct of inquiry. Right to representation. Use of evidence in civil and criminal proceedings. (Cap. 200.) Production of documents, and evidence, to Commission's inspectors. Contempts to be offences. Contempts dealt with by Commission. (Cap. 227.) Commission to have powers of judge. Inquiry to be a judicial proceeding. Protection of Commission and witnesses. Police and bailiffs to assist Commission. Cost of inquiry. Protection of person publishing true account.

Originally 28 of 1968. 49 of 1976. L.N. 226/76. Short title. Appointment of Commission. Directions to Commission. Schedule, Form 1. Powers of Commission. Schedule, Form 2. Conduct of inquiry. Right to representation. Use of evidence in civil and criminal proceedings. (Cap. 200.) Production of documents, and evidence, to Commission's inspectors. Contempts to be offences. Contempts dealt with by Commission. (Cap. 227.) Commission to have powers of judge. Inquiry to be a judicial proceeding. Protection of Commission and witnesses. Police and bailiffs to assist Commission. Cost of inquiry. Protection of person publishing true account.

https://oelawhk.lib.hku.hk/items/show/2403

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