COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS ORDINANCE

COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS ORDINANCE

LAWS OF HONG KONG

COMMISSIONER FOR

ADMINISTRATIVE COMPLAINTS ORDINANCE

CHAPTER 397





CHAPTER 397

COMMISSIONER FOR ADMINISTRATIVE
COMPLAINTS ORDINANCE

ARRANGEMENT OF SECTIONS

Section Page

PART I

PRELIMINARY

1. Short title and commencement ..........3
2. Interpretation ........................3

PART II

APPOINTMENT OF COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS

3........................................Appointment and tenure of office 4
4........................................Commissioner to hold no other office . 4

5.......................Filling of temporary vacancy ... 4

6........................................Staff of Commissioner 5

PART III

FUNCTIONS OF THE COMMISSIONER

7........................................Functions of Commissioner 5
8........................................Actions not subject to investigation 5
9........................................Determination of questions relating to Commissioner's authority 6

PARTIV

COMPLAINTS

10.......................................Restrictions on investigation of complaints 6

11. Commissioner may undertake or continue investigation notwithstanding

withdrawal of complaint ........................................................ 7

PART V

PROCEEDINGS

12..........................Proceedings of Commissioner 7
13....................................Evidence 8
14.........................Protection of witnesses, etc . 8
15...................Commissioner and staff to maintain secrecy 9
16..........................Reports by the Commissioner 9
17...............Persons to be informed of result of investigation 10





Section .................Page
PART VI
SUPPLEMENTARY
18. Privilege .........11
19. Duty of head of department 11

20.................Power of entry on premises
................................................................... 11

21. Delegation of powers and duties of the Commissioner 12

22........................Annual report
............................................ 12

23...................Offences ..........................
12

24.......................... Power to amend Schedule 1 12
25.................................Transitional 13

Schedule 1. Departments and organizations to which this Ordinance applies 13
Schedule 2. Actions not subject to investigation 14





CHAPTER. 397

COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS

Tomake provision for the appointment, powers and functions of a Commissioner
to investigate complaints concerning administrative actions taken on behalf of
the Government or public authorities, and, for purposes connected therewith.
;)A's 7

Originally 67 f 1988

PART I

PRELIMINARY

Short title. and commencement

1. This Ordinance may be cited as the Commissioner for Administrative
Complaints Ordinance, and shall come into operation on a day to be appointed by
the Governor by notice in the Gazette.

Interpretation

2. (1) In this Ordinance, unless the context otherwise requires-

action' includes omission, recommendation or decision;

'Commissioner' means the Commissioner for Administrative Complaints appointed
under section 3;

'department' means any department of the Government, or other organization,
specified in Schedule 1;

'head of department' means the head, director or equivalent officer of any
department;

'investigation' means an investigation by the' Commissioner under this Ordinance;

maladministration' means inefficient, bad or improper administration and, without
derogation from the generality of the foregoing, includes

(a)unreasonable conduct, including delay, discourtesy and lack of
consideration for a person affected by any action;

(b)abuse of any power (including any discretionary power) or authority
.including any action which

(i) is unreasonable, unjust, oppressive or improperly discriminatory or
which is in accordance with a practice which is or may be unreasonable,
unjust, oppressive or improperly discriminatory; or

(ii) was based. wholly or partly on a mistake of law or fact; or





(c)unreasonable, unjust, oppressive or improperly discriminatory
procedures;

'officer' includes employee.

(2) Any reference in this Ordinance to a department includes a reference to the
officers of that department.

PART II

APPOINTMENT OF COMMISSIONER
FOR
ADMINISTRATIVE COMPLAINTS

Appointment and tenure of office

3. (1) For the purpose of conducting investigations in accordance with the
provisions of this Ordinance there shall be a Commissioner, to be known as the
Commissioner for Administrative Complaints.

(2) The Commissioner shall be appointed in writing under the hand of the
Governor.

(3) Any person appointed as Commissioner shall, subject to subsection (4),
hold office for a period of 5 years and shall be eligible for reappointment.

(4) A person appointed to be the Commissioner may-

(a) at any time resign his office by notice in writing to the Governor;

(b)be removed from office by the Governor with the approval by resolution
of the Legislative Council on the ground of inability to discharge the
functions of his office, or misbehaviour.

(5) The emoluments of the Commissioner, and the terms and conditions of his
appointment, shall be determined by the Governor.

(6) Any salary or other benefit payable to the Commissioner shall be charged
on the general revenue.

Commissioner to hold no other office

4. The Commissioner shall not, without the specific approval of the Governor,
hold any office of profit, other than his office as Commissioner, or engage in any
occupation for reward outside the duties of his office.

Filling of temporary vacancy

5. (1) If the Commissioner-

(a) dies;

(b) resigns;

(c) is removed from office;

(d) is absent from Hong Kong; or

(e) is for any other reason unable to perform the functions of his office,





those functions shall, until such time as the Commissioner resumes the functions of
his office or a new Commissioner is appointed under section 3, be assumed and
performed by such person as may be appointed in writing under the hand of the
Governor to act as Commissioner.

(2) Section 4 shall apply to a person appointed to act as Commissioner as it
applies to the Commissioner.

Staff of Commissioner

6. (1) The Commissioner may appoint such persons as may be, necessary for
the efficient carrying out of his functions under this Ordinance.

(2) The salaries of persons appointed under subsection (1), and the terms and
conditions of their appointments, shall be such as are approved by the Governor.

(3) Subject to section 3(6) the expenses of the Commissioner and any salary or
benefit payable to any person appointed under subsection (1) shall be paid out of
moneys appropriated for that purpose by the Legislative Council.

PART III

FUNCTIONS OF THE
COMMISSIONER

Functions of Commissioner

7. (1) The Commissioner may investigate any action taken by or on behalf of a
department in the exercise of its administrative functions in any case where

(a)a complaint is made by a person who claims to have sustained injustice in
consequence of maladministration in connection with that action; and

(b)with the consent of the complainant, the complaint, and a request to
conduct an investigation into it, is referred in writing to the Commissioner
by a Member of the Legislative Council other than an Official Member.

(2) The powers conferred on the Commissioner by this Ordinance shall be
exercised in accordance with the provisions of this Ordinance but may be so
exercised notwithstanding any provision in any law to the effect that any decision
shall be final, or that no appeal shall lie in respect thereof, or that no proceeding or
decision of the department whose decision it is shall be challenged, reviewed,
quashed, or called in question.

(3) When the Legislative Council is dissolved the reference in subsection
(1)(b) to a Member of the Legislative Council shall be construed as a reference to
the Secretary General of the Office of The Members of Executive and Legislative
Councils.

Actions not subject to investigation

8. The Commissioner shall not undertake or continue any investigation into a
complaint that relates to any action or matter specified in Schedule 2.





Determination of questions relating to Commissioner's authority

9. 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.

PART IV

COMPLAINTS

Restrictions on investigation of complaints

10. (1) Notwithstanding the generality of the powers conferred on the
Commissioner by this Ordinance, the Commissioner shall not undertake or continue
an investigation into a complaint

(a)if it relates to any action of which the complainant has had actual
knowledge for more than 24 months before the complaint is received by
the Commissioner, unless the Commissioner is satisfied that in the
particular circumstances it is proper to conduct an investigation into a
complaint not made within that period;

(b) if the complaint is made anonymously;

(c) if the complainant cannot be identified or traced;

(d)if the complaint is not m by the person aggrieved himself or, where the
person by whom the complaint might have been made has died or is for
any reason unable to act for himself, by his personal representative or by
a member of his family or other individual suitable to represent him; or

(e)if the complaint relates to any 'action in respect of which the complainant
has or had

(i) under any Ordinance, a right of appeal or objection, or a right to
apply for a review, on the merits of the case, to the Governor, the
Governor in Council, any tribunal constituted by or under any Ordinance,
or any board or other authority so constituted; or

(ii) a remedy by way of proceedings in a court, other than by way of
judicial review, or in any tribunal constituted by or under any Ordinance,

unless the Commissioner is satisfied that in the particular circumistnace it
is not reasonable to expect the complainant to resort or to have resorted
to that right or remedy.

(2) The Commissioner may in his discretion decide not to undertake or
continue an investigation into a complaint, if he is of the opinion, having regard to
all the circumstances of the case, that





(a)the complaint, or a complaint of a substantially similar nature, has
previously been the subject of an investigation as a result of which the
Commissioner was of the opinion that there had been no
maladministration.

(b) the subject matter of the complaint is trivial;

(c) the complaint is frivolous or vexatious or is not made in good faith; or

(d)any investigation or further investigation is for any other reason
unnecessary.

(3) If the Commissioner decides not to undertake or continue an investigation
into a complaint he shall inform the complainant, and the Member of the Legislative
Council by whom the complaint was referred, of that decision and of his reasons.

Commissioner may undertake or continue investigation
notwithstanding withdrawal of complaint

11. Where. the Commissioner is of the opinion that it is in the public interest so
to do, he may undertake or continue an investigation into a complaint
notwithstanding that the complainant has withdrawn the complaint and, in any such
case, the provisions of this Ordinance shall apply to the, complaint and the
complainant as if the complaint had not been withdrawn.

PART V

PROCEEDINGS

Proceedings of Commissioner

12. (1) Before investigating any action, the Commissioner shall inform the head
of the department affected of his intention to conduct an investigation and may
seek his comments.

(2) Subsection (1) shall not apply where the Commissioner thinks compliance is
inappropriate in the particular circumstances of the case and, instead of complying
with that subsection, informs the Chief Secretary of his intention to conduct an
investigation.

(3) Subject to the provisions of this Ordinance, the Commissioner-

(a)may hear or obtain information from such persons, and make such
inquiries, as he thinks fit; and

(b) may regulate his procedure in such manner as he thinks fit.

(4) Every investigation shall be conducted in private and counsel and
solicitors shall not have any right of audience before the Commissioner, but may
appear before him if he thinks fit.

(5) It shall not be necessary for the Commissioner to hold any hearing and,
subject to subsection (6), no person shall be entitled to be heard by the
Commissioner.





(6) If at any time during the course of an investigation it appears to the
Commissioner that there may be sufficient grounds for him to make any report or
recommendation that may criticize or adversely affect any officer, department or
person he shall give to the officer, head of department affected or person an
opportunity to be heard.

Evidence

13. (1) Subject to section 14, the Commissioner may summon before hirn

(a)any person, whether or not he is an officer of any department, who in the
opinion of the Commissioner is able to give any information relating to
any action that is being investigated by the Commissioner; and

(b) any complainant,

and may examine them and require them to furnish to him any information, and to
produce any document or thing which, in the Commissioner's opinion, whether or
not it is in the custody or under the control of any department, relates to that action
and which may be in the possession or under the control of that person or, as the
case may be, of the complainant.

(2) The Commissioner may administer an oath for the purposes of an
examination under subsection (1) if he thinks fit.

(3) Except in relation to the subject of any certificate issued under section 14(3)-

(a)no obligation to maintain secrecy or other restriction, imposed by law,
upon the disclosure of any information, document or other thing, that is
or has been in the possession or under the control of a public officer,
shall apply to its disclosure for the purposes of an investigation under
this Ordinance; and

(b)any requirement by the Commissioner that any such information,
document or thing as is referred to in paragraph (a) be disclosed or
produced for the purposes of an investigation under this Ordinance shall
be sufficient authority for its disclosure or production to the
Commissioner.

(4) The Commissioner may pay the reasonable expenses of complainants and
witnesses incurred during the course of an investigation. under this Ordinance.

Protection of witnesses, etc.

14. (1) Every person shall have the same privileges in relation to the giving of
information, the answering of questions, and the production of documents and
things, for the purposes of this Ordinance, as witnesses have in civil proceedings in
the Supreme Court but, subject to subsection (3), any rule of law which. authorizes
or requires the withholding of any document or thing, or the refusal to answer any
question, on the ground that the disclosure of the document or thing or the
answering of the question would be injurious to the public interest, shall not apply
in respect of any investigation.





(2) Except on the trial of any person for perjury in respect of his sworn
testimony, or for an offence under this Ordinance, no statement made or answer
given by that or any other person in the course of any investigation shall be
admissible in evidence against any person in any court or at any inquiry or in any
other proceedings, and no evidence in respect of an investigation shall be given
against any person.

(3) Where the giving of any information or the answering of any question or
the production of any document or thing

(a)is the subject of a certificate by the Governor that it might prejudice
security, defence or international relations (including relations with any
international organization) in respect of Hong Kong; or

(b) is the subject of a certificate by the Chief Secretary that it might-

(i) prejudice the investigation or detection of crime; or

(ii) involve the disclosure, without the consent of the Governor, of the
deliberations of the Executive Council,

the Commissioner shall not require the information or answer to be given or, as the
case may be, the document or thing to be produced.

Commissioner and staff to maintain secrecy

15. (1) The Commissioner and every person appointed under section 6 shall,
subject to subsections (2) and (3), maintain secrecy in respect of all matters that
come to their actual knowledge in the exercise of their functions.

(2) Subsection (1) shall not apply so as to prevent the Commissioner or any
person appointed under section 6 from

(a)disclosing in the course of proceedings for an offence under the
Ordinance, any matter relevant to those proceedings;

(b)reporting evidence of any crime to such authority as he considers
appropriate;

(c)disclosing to a person any matter referred to in subsection (1) which, in
the opinion of the Commissioner or person so appointed, may be ground
for a complaint by that person.

(3) The Commissioner may disclose in any report made by him under this
Ordinance any matter that in his opinion ought to be disclosed in order to establish
grounds for his conclusions and recommendations, other than a matter in respect of
which the Governor certifies that its disclosure might prejudice security, defence, or
international relations (including relations with any international organization) in
respect of Hong Kong or would otherwise be contrary to the public interest.

(4) Any person who fails to comply with subsection (1) commits an offence
and is liable to a fine of $50,000 and to imprisonment for 2 years.

Reports by the Commissioner

16. (1) In any case in which, after making an investigation into any action, the
Commissioner is of the opinion that one or more of the following circumstances
have been revealed





(a)there is evidence of any maladministration on the part of any officer of any
department;

(b)the matter should be referred to the head of depart ment affected for
further consideration;

(c) an omission should be rectified;

(d) the action should be cancelled or varied;

(e) any practice on which the action was based should be altered;

(f) any view of the law on which the action was based should be reconsidered;

(g) reasons should have been given for the action;

(h) any other steps should be taken,

the Commissioner shall report his opinion and his reasons, together with a
statement of any remedy that he considers should be provided and of any
recommendation that he thinks fit to make, to the head of department affected or, if
the Commissioner thinks it appropriate in the particular circumstances of the case
not to report to the head of department, to the Governor.

(2) The Commissioner may specify in a report under subsection (1) to a head of
department a time within which the Commissioner is of the opinion it is reasonable
in all the circumstances for the report to be acted upon.

(3) Where a report under subsection (1) to a head of department is not, in the
opinion of the Commissioner, adequately acted upon

(a) within the time specified in the report; or

(b)if no time is specified in the report, within such time as the Commissioner
is of the opinion is reasonable in all the circumstances,

the Commissioner may submit the report and recommendations, together with such
further observations as he thinks fit to make, to the Governor.

(4) The Commissioner shall attach to every report submitted to the Governor
under subsection (3) a copy of any comments made thereon by or on behalf of the
head of department affected.

(5) In addition to making a report under subsection (1) or (3) the Commissioner
may, where he is of the opinion that a serious irregularity or injustice has taken
place, make a further report. stating his opinion and his reasons to the Governor.

(6) Within a period of 1 month, or such longer period as the Governor may
determine, after receipt of the report from the Commissioner under subsection (5), a
copy of the report shall be laid before the Legislative Council.

Persons to be informed of result of investigation

17. (1) In any case where he conducts an investigation, the Commissioner shall
inform the complainant and the Member of the Legislative Council by whom the
Complaint was referred, in such manner and at such time as he thinks fit, of

(a) the result of his investigation;





(b)any report or recommendation made under section 16 and any comments
made thereon by or on behalf of the head of department affected;

(c) such comments on the matter as he thinks fit to make; and

(d)such comments, if any, as the Governor may require him to forward to the
complainant.

(2) In any case where he conducts an investigation, the Commissioner shall,
unless he has already made a report under section 16(1) to the head of department
affected, inform him, in such manner and at such time as he thinks fit, of the result of
his investigation.

(3) Where the Commissioner is required by subsection (1) to inform the
Member of the Legislative Council by whom the complaint was referred of any
matter and that Member ceases to be a Member before the information is supplied,
then such information shall be supplied to the Secretary General of the Office of The
Members of Executive and Legislative Councils.

PART VI

SUPPLEMENTARY

Privilege

18. For the purposes of the law of defamation, absolute privilege shall be
attached to the publication of any matter

(a)by the Commissioner or his staff to any person for the purpose of
investigating a complaint under this Ordinance, or for the purposes of
section 16, 17 or 22;

(b)by a Member of the Legislative Council to the Commissioner or his staff,
or to a complainant, for any purpose under this Ordinance.

Duty of head of department

19. An investigation shall not affect any action taken by the head of
department affected, or any power or duty of that head of department to take
further action with respect to any decision which is subject to the investigation.

Power of entry on premises

20. (1) For the purposes of thisOrdinance, but subject *to subsections (2) and
(3), the Commissioner may at any time

(a) enter any premises occupied by a department;.

(b) inspect the premises; and

(c)subject to the provisions of sections 13 and 14, carry out in the premises
any investigation which is within his jurisdiction.

(2) Before entering any such premises the Commissioner shall notify the head
of the department by which the premises are occupied.





(3) The Governor may from time to time, by notice to the Commissioner,
exclude any specified premises or class of premises from the application of
subsection (1) if he is satisfied that prejudice might otherwise be caused to
security, defence, or international relations (including relations with any
international organization) in respect of Hong Kong.

Delegation of powers and duties of the Commissioner

21. (1) Subject to subsection (2), the Commissioner may, by notice in the
Gazette, delegate to any person appointed under section 6 any of his powers
under this Ordinance, except the power of delegation in this section and, where
it appears to the Commissioner that he has or may have an interest in any
matter which is the subject of a complaint under section 7, shall so delegate his
powers and shall not undertake personally or continue an investigation into
that complaint or report thereon.
(2) Except where the Commissioner is required by subsection (1) to
delegate his powers under this Ordinance, any power or duty to make a report
under this Ordinance shall not be delegated by him; but where he is so required
any duty imposed by this Ordinance on the Commissioner shall be imposed
instead on the person to whom the Commissioner's powers under subsection (1)
are delegated.

Annual report

1 22. (1) The Commissioner shall not later than the last day of June in each
year make a general report to the Governor on the exercise of the functions of'
the Commissioner under this Ordinance during the previous year.
(2) The Governor shall cause the report referred to in subsection (1) to be
laid before the Legislative Council.

Offences

23. Any person who-
(a)without lawful excuse, obstructs, hinders or resists the Commissioner
or any other person in the exercise of his powers under this Ordinance;
(b)without lawful excuse, fails to comply with any lawful requirement of
the Commissioner or any other person under this Ordinance; or
(c)makes a statement which he knows to be false or does not believe to be
true, or otherwise knowingly misleads the Commissioner or any other
person in the exercise of his powers under this Ordinance,
commits an offence and is liable to a fine of $10,000 and to imprisonment for 6
months.

Power to amend Schedule 1

24. Where any new department is created, or where any department is
abolished or reorganized, or its name is altered, the Governor in Council may,
by order published in the Gazette, make such amendments to Schedule 1 as may
be necessary to include the name of the new department, or to give effect to the
abolition, reorganization or alteration.





Transitional

25. A complaint under this Ordinance may be made in respect of matters which
arose before the commencement of this Ordinance and for the purposes of section
10(1)(a) any time elapsing between the date of the enactment and the date of the
commencement of this Ordinance (but not any time before the first of those dates)
shall be disregarded.

SCHEDULE I [ss. 2 & 24]

DEPARTMENTS AND ORGANIZATIONS TO WHICH THIS ORDINANCE APPLIES

Agriculture and Fisheries Department.
Architectural Services Department.
Audit Department.
Buildings and Lands Department.
Census and Statistics Department.
City and New Territories Administration.
Civil Aviation Department.
Civil Engineering Services Department.
Correctional Services Department.
Customes and Excise Department.
Education Department
Education and Mechanical Services Department.
Environmental Protection Department.
Fire Services Department.
Government Data Processing Agency,
Government Laboratory.
Government Land Transport Agency.
Government Secretariat.
Government Supplies Department.
Highways Department.

Housing Department.
Immigration Department.
Industry Department.
Information Services Department.
Revenue Department. Labour
Department. Legal Department.
--Legal Aid Department.
Marine Department
Medical and Health Department,
Office of The Members of Executive and Legislative Councils, Secretariat.
Post Office. Printing Department. Radio Television Hong Kong. Rating and
Valuation Department. Regional Services Department.





Registrar General's Department.

Registry of the Supreme Court and all registries and offices of courts and tribunals for which the
Registrar of the Supreme Court has administrative responsibility.

Registry of Trade Unions.
Royal Observatory.
Social Welfare Department.

Technical Education and Industrial Training
Department. Television and Entertainment Licensing
Authority.

Territory Development Department.
Trade Department.

Transport
Department. Treasury.

University and Polytechnic Grants Committee,
Secretariat. Urban Services Department. Water Supplies
Department.

SCHEDULE 2 [s. 8]

ACTIONS NOT SUBJECT TO
INVESTIGATION

1. Any action taken in matters certified by the Governor as affecting' security, defence or
international relations (including relations with any international organization) in respect of
Hong Kong.

2. The commencement or conduct of any proceedings, whether civil or criminal, before a
court of law or tribunal in Hong Kong, including any decision whether or not to prosecute 1 any
person for an ofrence.

3. Any exercise of the prerogative of mercy.

4. Any action taken in relation to contractual or other commercial transactions but
excluding procedures adopted in inviting tenders, determining the qualification of persons
entitled to tender and the selection of the successful tenderer.

5. Any action taken in respect of appointments or removals, pay, conditions of service,
discipline, pension, superannuation or other personnel matters, in relation to

(a) service in any office or employment under the Government or under any department; or

(b)service in any office, or under any contract for services, in respect of which power to
take action, or to determine or approve the action to be taken, in such matters is vested
in the Governor or any department.

6. The grant of honours, awards or privileges within the gift of the Crown.

7. Any action taken personally by the Governor.
[ss. 2 & 24] [s. 8]

[ss. 2 & 24] [s. 8]

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