Introduction

1. The Office of The Ombudsman of the Hong Kong was established in 1989 according to The Ombudsman Ordinance, Chapter 397 of the Laws of Hong Kong as an independent authority to investigate into alleged acts of maladministration and redress public grievances. Five years later, the statutory function of The Ombudsman was enhanced by a legislative amendment in 1994 to empower him to initiate investigations on his own volition, without any complaint being received. Since then, The Ombudsman's role is not confined to the investigation of complaints and redressing of grievances. He can take a more proactive approach in handling problems of potentially wide public interest and concern by conducting self-initiated direct investigations. To discharge his statutory function and to be of good service to the community, The Ombudsman is performing a number of roles, namely -

 
Bureaucratic constraints do not interfere with administrative fairness
Public authorities are readily accessible to the public
Abuse of power is prevented
Wrongs are righted
Facts are pointed out when public officers are unjustly accused
Human rights are protected
The public sector continues to improve quality and efficiency.
 
The Direct Investigation Function
2. In discharging this statutory function, The Ombudsman as an independent authority has exercised this power judiciously to assist public sector organisations subject to his jurisdiction to identify areas where public administration might be improved and become fairer and more effective. Direct investigation is an independent review at the macro level by spending time to save time, and spending resources to save resources in the long run. The time and efforts are well worth spending. Prevention is always better than cure. One direct investigation will help the organisation to prevent recurrence of many repeated complaints. If the problems are not suitably addressed at the first available opportunity, by the time the manifestation or proliferation sets in, they would become much more difficult, complex, and time-consuming to resolve. Also more grievances would have been caused to the affected persons, if timely action is not taken. Direct investigation is particularly useful to -
   
  1. follow through related problems which investigation of the complaint alone may not be able to resolve;
  2. nip problems in the bud; and
  3. resolve repeated complaints, once and for all, by addressing the fundamental problems which may not be the subject of complaint, but are believed or suspected to be the underlying reasons for complaints.
   
Statutory Functions and Power
3. Under Section 7(1)(a)(ii) of The Ombudsman Ordinance, The Ombudsman is empowered to initiate investigations on his own volition. Section 7 reads :

"Functions of Ombudsman

  1. The Ombudsman may investigate any action taken by or on behalf of -
    1. an organisation set out in Part I of Schedule 1 in the exercise of its administrative functions; or
    2. an organisation set out in Part II of Schedule 1 in the exercise of its administrative functions in relation to the Code on Access to Information published by the Government,

    in any case where -

    1. a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action; or
    2. notwithstanding that no complaint has been made to him, he is of the opinion that any person may have sustained injustice in consequence of maladministration in connection with that action.
  2. The powers conferred on The Ombudsman 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 organisation whose decision it is shall be challenged, reviewed, quashed, or called in question."
 
4. In conducting investigations, The Ombudsman is empowered by law to obtain any information, document or thing from the heads of organisations affected and to summon, if necessary, any person, whether or not he is an officer of the organisation affected, to give information or produce any document or thing under oath if The Ombudsman is of the opinion that such person is able to give the information for the purpose of investigation. Only when the Chief Executive of the HKSAR certifies that the giving of the information requested might prejudice security, defence or international relations or the Chief Secretary for Administration certifies that it might prejudice the investigation or detection of crime or involve the disclosure, without the consent of the Chief Executive, of the deliberations of the Executive Council can a person without lawful reasons refrain from providing the information necessary for investigations. Any hindrance to his investigations or failure to comply with his lawful requirements without lawful excuse is punishable by a fine of $10,000 and imprisonment for 6 months. The Ombudsman is also empowered to publish the investigation reports without revealing the identity of any officer of the organisation whose action is the subject of the investigation or who is otherwise involved in the investigation.
 
Guidelines for Initiating Direct Investigations
5. To facilitate consideration of matters for direct investigation, The Ombudsman has established some general guidelines as follows -
  1. the matter is one concerning public administration, in respect of which alleged or suspected maladministration as defined in The Ombudsman Ordinance is involved;
  2. the matter should be of sufficient dimension and complexity, representing the general interest, desire or expectation of the community, or at least a sector in the community;
  3. individual grievances will not normally be a candidate for direct investigation, as there is no reason why the individual concerned cannot come forward to lodge a complaint himself;
  4. the matter will not otherwise be actionable under the restrictions in Section 10(1) of The Ombudsman Ordinance, in relation to time-bar, the complainant not the individual aggrieved etc., which is nevertheless of grave concern to The Ombudsman;
  5. the matter is one not normally subject to the jurisdiction of the court nor a tribunal constituted under any Ordinance, or in respect of which it would not be reasonable to expect the affected person(s) to resort to the court or any tribunal for remedy;and
  6. whether time is opportune for the direct investigation, weighing against the consequences of not doing so.
 
6. It is emphasized that the above are no more than guidelines, and the list is by no means exhaustive. Much will depend on the actual matter and the problems emerged.
 
Assessment of Issues for Direct Investigation (DI Assessment)
7. For the purposes of determining whether to undertake an investigation, The Ombudsman may conduct preliminary inquiries as he considers appropriate. The Ombudsman's Office has adopted a structured approach to identify suitable targets for direct investigation by a continuous and vigilant monitoring of a wide spectrum of actions of organisation subject to The Ombudsman's jurisdiction, in the exercise of their administrative functions -
  1. studying and analyzing the nature and contents of the complaints lodged with The Ombudsman and enquiries made and opinions expressed by members of the public at this Office, whether orally, by writing or in person;
  2. specific suggestions made by The Ombudsman himself, members of his staff and Justice of the Peace (JPs) who have volunteered to take part in the JPs Assistance Scheme;
  3. scanning publications on selected administrative issues, including those by government departments and other public bodies themselves; and
  4. collating and analyzing relevant media reports.

8. Before formally declaring a direct investigation under Section 7(1) of The Ombudsman Ordinance on an issue so identified, The Ombudsman would require an assessment on the background of the issue by conducting a DI assessment. Heads of organisations concerned would normally be asked to provide background information to assist The Ombudsman in appraising the whole situation more comprehensively and in determining whether a direct investigation is to be undertaken. The question of whether "any person may have sustained injustice as a result of maladministration" would need to be assessed. These assessments may or may not lead to formal direct investigations, depending on the circumstances of the issues, including the extent and nature of the remedial actions taken or proposed to be taken by the authorities concerned to address the issues and of the public concern and resources or other operational considerations.

 
The Way Forward

9. Strengthening the direct investigation function is high on the list of The Ombudsman's work priorities. Direct investigations and related assessments enable this Office to initiate quick action on topical issues many of which though unforeseen, have a direct bearing on public's livelihood. This is in line with The Ombudsman's pledge to act as the people's watchdog. Maladministration cannot be defined with precision. Generally it may be considered to be a lapse from the high standard expected of the public service. The Ombudsman believes he is duty bound to proactively probe into matters of maladministration as a consequence of which injustice has, in his opinion, been sustained and that by so doing, he can contribute to the good governance of Hong Kong.

Office of The Ombudsman
Hong Kong
April 2003

List of Direct Investigations Completed