Direct Investigation Function

In discharging this statutory function, The Ombudsman as an independent authority has exercised this power judiciously to assist public sector organisations subject to her 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.

An Ombudsman is required to promote fairness in the administration, apply equity in individual cases, contributed where necessary to the improvement of underlying law and policy and facilitate the effective flow of information so as to keep the public well informed.


Statutory Functions and Power

Under section 7(1)(a)(b)(ii) of The Ombudsman Ordinance, The Ombudsman is empowered to initiate direct investigations on her 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 her, she 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."

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 her investigations or failure to comply with her 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

Under section 7(1)(a)(ii) of The Ombudsman Ordinance, The Ombudsman is empowered to initiate investigations of his own volition, even though no complaint on the matter has been received.

This power enables The Ombudsman to be more proactive in the approach to problems of public interest and concern. It is particularly useful to:

  1. follow through systemic problems which investigation of a complaint alone may not resolve;
  2. nip problems in the bud by addressing deficiencies in systems and procedures; and
  3. resolve repeated complaints, once and for all, by addressing the fundamental problems which may not be the subject of complaints, but are believed or suspected to be the underlying reasons for complaint.
To facilitate consideration of matters for direct investigation, The Ombudsman has established some general guidelines:

  1. the matter concerns public administration and involve alleged or suspected maladministration as defined in The Ombudsman Ordinance;
  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 normally not be a candidate for direct investigation, as there is no reason why the individual concerned cannot come lodge a complaint personally;
  4. a complaint will otherwise not be actionable under the restrictions in section 10(1) of The Ombudsman Ordinance, e.g. annoymous complainant, not the aggrieved person, but the matter is nevertheless of grave concern to The Ombudsman;
  5. the matter is normally not subject to the jurisdiction of the Court or a tribunal constituted under any Ordinance or it would not be reasonable to expect the affected person(s) to resort to the Court or any tribunal for remedy; and
  6. the time is opportune for a direct investigation, weighing against the consequences of not doing so.
These are no more than guidelines and are by no means exhaustive. Much will depend on the actual matter or problems.


Assessment of Issues for Direct Investigation

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. receiving suggestions contributed by Justices of the Peace (JP) who have volunteered to take part in the JP Assistance Scheme launched by The Ombudsman;
  3. specific suggestions made by The Ombudsman herself and/ or members of her staff;
  4. scanning publications on selected administrative issues, including those by government departments and other public bodies themselves; and
  5. collating and analyzing relevant media reports.

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.


Cases under Investigation

[Note : ( ) indicating announcement date]

  1. Direct Investigation into the Practice of the Hospital Authority and the Department of Health in Checking Eligibility for Subsidised Public Hospital and Health Care Services (May 2009)
  2. Direct Investigation to Examine the Transport Department ("TD")'s Procedures for Enforcing the Points System (March 2009)
  3. Direct Investigation into the Effectiveness of Government's Administration of the Code on Access to Information (February 2009)
  4. Direct Investigation into the Monitoring of Lift Safety by the Electrical and Mechanical Services Department ("EMSD") (January 2009)
  5. Direct Investigation into Granting of Disability Allowance and the Processing of Appeals by Social Welfare Department (November 2008)
  6. Direct Investigation into the Practice of the Housing Department ("HD") for Handling Complaints Involving Property Damage or Minor Injuries Caused by the Department or Its Contractors (October 2008)
  7. Direct Investigation into the Production of Question Papers in Public Examinations (June 2008)