Hong Kong is situated at the south-eastern tip of the mainland of China (Annex 1). Just under 1 100 square kilometres in area, it comprises Hong Kong Island, Kowloon, the New Territories and 236 offshore islands and islets. With a population of about 6.7 million at mid-2001, Hong Kong is a dynamic and vibrant cosmopolitan city, which has earned an international reputation as a leading commercial and financial centre as well as a highly efficient entrepot. Over the decades, it has established itself as a clean and effective administration for quality service with integrity.
The Hong Kong Special Administrative Region
The Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) was established on 1 July 1997, to be run by Hong Kong people (emblem and flag at Annexes 2 and 3). Under the principle of “one country, two systems”, Hong Kong’s previous capitalist system and lifestyle will remain unchanged for 50 years. The HKSAR enjoys a high degree of autonomy except in defense and foreign affairs.
The Basic Law
The Basic Law is the constitutional document for the HKSAR, enshrining the basic policies of the PRC towards Hong Kong. It prescribes the systems for the HKSAR; the relationship between the Central People’s Government and the HKSAR Government; the fundamental rights and obligations of Hong Kong residents; the political structure of the HKSAR; the economic, financial and social systems of the HKSAR; the conduct of external affairs by the HKSAR as well as the interpretation and amendment of the Basic Law.
Legal System and the Judiciary
The legal system of the HKSAR is firmly based on the rule of law and the independence of the Judiciary. The constitutional framework for the legal system is enshrined in the Basic Law. Under the principle of “one country, two systems”, the HKSAR legal system is based on the common law, supplemented by local legislation. (All ordinances in force in the HKSAR are accessible on the Internet at http://www.justice.gov.hk/)
Laws in Hong Kong consist of the Basic Law, locally enacted ordinances, subsidiary legislation, the common law, rules of equity and customary law. A few national laws of the PRC listed in Annex III to the Basic Law also apply, covering such subjects as national flag and anthem, nationality law and diplomatic privileges and immunities.
The Judiciary of the HKSAR is responsible for the administration of justice. It hears all prosecutions and civil disputes, including disputes between individuals and Government.
It is fundamental to Hong Kong’s law that members of the Judiciary are independent of the executive and legislative branches of Government. The Courts of Justice in the HKSAR comprise the Court of Final Appeal, High Court (which includes the Court of Appeal and the Court of First Instance), District Court (which includes the Family Court), Lands Tribunal, Magistrates’ Courts, Juvenile Court, Labour Tribunal, Small Claims Tribunal, Obscene Articles Tribunal and Coroner’s Court. The Chief Justice of the Court of Final Appeal is the head of the Judiciary. He is assisted by the Judiciary Administrator in the discharge of administrative duties.
Judges and judicial officers are appointed by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission. The Commission is an independent statutory body composed of judges, persons from the legal profession and eminent persons from other sectors of the community. Judges and judicial officers are chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions.
Civil and monetary judgments of the superior courts of the HKSAR and maintenance orders made in matrimonial proceedings may be recognized and enforced in certain foreign jurisdictions. Further, the recognition and enforcement in foreign jurisdictions of arbitral awards made in the HKSAR is facilitated by virtue of the extension of the New York Convention to the HKSAR. Over 200 international conventions are applicable to the HKSAR. The HKSAR has also signed bilateral agreements with foreign jurisdictions over a wide variety of topics.
The HKSAR has more than 750 practicing barristers, 4 700 practicing solicitors and 620 local law firms, plus some 44 foreign law firms, 520 registered foreign lawyers and seven registered associations between foreign law firms and local law firms. The Director of Legal Aid is responsible for the administration of legal aid. In 1999/2000, legal aid costs totalled $577 million. Eligible persons are provided with legal representation depending on their financial circumstances.
The Chief Executive
Mr. Tung Chee Hwa, as the Chief Executive, leads the Government of the HKSAR. The Basic Law stipulates that the Chief Executive shall be elected by a broadly representative Election Committee and appointed by the Central People’s Government for a term of five years. The Chief Executive may serve for not more than two consecutive terms. The ultimate aim is for the Chief Executive to be elected by universal suffrage on nomination by a broadly representative committee in accordance with democratic procedures.
The Chief Executive reports to the Central People’s Government and nominates for appointment the principal officials of the HKSAR. His functions include pardoning of persons convicted of criminal offences or commuting their penalties and handling of petitions and complaints.
The Executive Council
The Executive Council, appointed by the Chief Executive from among the executive authorities, members of the Legislative Council and community leaders, advises him on important policy decisions and legislation. The Executive Council normally meets once a week with the Chief Executive presiding over its meetings. He is required by the Basic Law to consult the Council before making important policy decisions and introducing bills into the Legislative Council. If the Chief Executive does not accept a majority opinion of the Executive Council, he must put the reasons on record.
The Legislative Council
Hong Kong has a two-tier system of representative government: the Legislative Council at the central level and District Councils at the local level.
According to the Basic Law, the Legislative Council is to be constituted by election in accordance with the principle of gradual and orderly progress. There are 60 members in the Legislative Council: 30 from functional constituencies, 24 by geographical constituencies and six by the election committee. The ultimate aim is the election of all members by universal suffrage.
Article 73 of the Basic Law stipulates the powers and functions of the Legislative Council. The key ones are as follows:
to enact, amend or repeal laws in accordance with the Basic Law and legislative procedures;
to examine and approve budgets introduced by Government;
to approve taxation and public expenditure;
to receive and debate the policy addresses of the Chief Executive;
to monitor, and raise questions on, the work of Government;
to debate issues of public interest;
to endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court;
to receive and handle public complaints; and
subject to specified procedures and with the participation of the Chief Justice of the Court of Final Appeal, to investigate serious breach of the Law or dereliction of duty by the Chief Executive and after a motion of impeachment to report to the Central People’s Government for decisions.
The major political parties in the Legislative Council include the Democratic Party, Democratic Alliance for Betterment of Hong Kong, Liberal Party, The Frontier and Hong Kong Progressive Alliance.
The District Administration Scheme, commencing in 1982, aims to achieve more effective coordination in the provision of Government services and facilities at the local community level, ensure responsiveness to district needs and promote public participation in district affairs.
The first District Councils election of the HKSAR returned 390 elected members to the 18 District Councils. Other Councilors are 27 ex officio members (who are rural committee chairmen in the New Territories) and 102 appointed members. The term of office is four years.
District Councils advise the Government on matters affecting the well-being of their local community and on the adequacy and priorities of public programmes. They also undertake environmental improvement and promote recreational, cultural and community activities in their respective districts.
The Chief Secretary for Administration
The Chief Secretary for Administration, as head of a civil service of some 185 900, is responsible to the Chief Executive for the formulation of Government policies and their implementation. Under his general direction, the main administrative and executive functions of Government are carried out by 16 policy bureaux covering 70 departments and agencies (Annex 4).
The success of Hong Kong as a leading trade, finance and business centre stems from a policy of free enterprise and trade without Government interference, industrious work-force, well-developed infrastructure and excellent telecommunications. In 2000, the GDP of Hong Kong reached HK$1,272 billion and the per capita GDP at current market prices was HK$187,105, second only to Japan in Asia. Since October 1983, the Hong Kong dollar has been linked to the US dollar at the fixed rate of HK$7.80 to US$1.
Hong Kong is an international banking centre. At the end of 2000, there were 154 licensed banks, 48 restricted license banks and 61 deposit-taking companies. Together, they operated a comprehensive network of 1 555 local branches (excluding main offices).
In 1999/2000, Government revenue amounted to HK$232,995 million. About 29% of the revenue was collected from direct taxes and 19% from indirect taxes. Other sources of revenue included fines, forfeitures and penalties, utilities, fees and charges, income from properties and investments, loan repayments and land premiums. The public expenditure in 1999/2000 amounted to HK$269,484 million. It represented about 22% of GDP. The major areas of public expenditure in 1999/2000 were: education (19%), housing (17%), health (12%), social welfare services (10%), security services (10%) and infrastructure (9%). At the close of 1999/2000, the Government’s aggregated fiscal reserve balance was HK$444,254 million.
About half of the local population live in subsidized housing, some 2.2 million people in public rental units and others in home ownership and loan schemes flats. Government target is for 70% of the population to live in owned accommodation.
About 22% of the population is at school or kindergarten. In 1999/2000, public expenditure spent on education amounted to HK$50.3 billion, representing 19% of Government’s total expenditure.
Government provides nine years of universal free basic education from the ages of six to 15. In 1999, Government provided subsidised Secondary 4 places for about 84% of the 15-year-olds in a continuing programme. With both Chinese and English in common use, Government’s aim is for students to be illiterate (i.e. mastering written Chinese and English) and trilingual (i.e. speaking fluent Cantonese, Putonghua and English).
There are three main types of schools — Government schools wholly operated by the Government; aided schools fully subsidised by the Government but run by voluntary bodies; and private schools, some receiving financial assistance from the Government. There are 15 schools operated by the English Schools Foundation offering education to English-speaking children. There are also international schools, open to children of all races.
There are 10 tertiary institutions, including seven universities (The Chinese University of Hong Kong, City University of Hong Kong, Hong Kong Baptist University, Hong Kong Polytechnic University, Hong Kong University of Science & Technology, Lingnan University and University of Hong Kong), two degree-awarding tertiary institutions (Hong Kong Academy for Performing Arts and Open University of Hong Kong) and the Hong Kong Institute of Education.
The Office of The Ombudsman Development over the years
Following public consultation, Government enacted The Ombudsman (then known as the Commissioner for Administrative Complaints) Ordinance on 20 July 1988 to establish an independent authority for handling complaints on mal-administration. This came into operation on 1 February 1989. The aim was to strengthen channels for the redress of grievances. However, the then Commissioner for Administrative Complaints could only take on complaints by referral from members of the Legislative Council.
In June 1994, the Ordinance was amended to repeal the referral system and to give the public direct access to lodge complaints to the Commissioner. The Commissioner was also empowered to initiate investigations on his own volition without any complaint being received, and could publish anonymised investigation reports considered to be of public interest at any time, not only in annual reports.
The Office was retitled “The Ombudsman” in December 1996. The Ombudsman was further empowered to investigate complaints of non-compliance with the Code on Access to Information by the Hong Kong Police Force, the Independent Commission Against Corruption, the Hong Kong Auxiliary Police Force and the Secretariats of the Independent Police Complaints Council and Public Service Commission, in addition to the Government departments and major statutory organizations already within The Ombudsman’s jurisdiction. As at 1 April 2001, the establishment of the Office of The Ombudsman was 90.
Role and Functions of The Ombudsman
The Ombudsman, directly appointed by the Chief Executive of the HKSAR under The Ombudsman Ordinance, serves as the community’s watchdog to ensure that:
Bureaucratic constraints do not interfere with administrative fairness
Public authorities are readily accessible to the public
Abuses of power are 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
There are some restrictions to The Ombudsman’s powers. For instance, matters with statutory channel for appeal or objection; trivial, frivolous, vexatious complaints; or allegations in bad faith fall outside The Ombudsman’s purview. Complaints for investigation must be lodged by parties directly aggrieved.
Handling of Complaints
Complaints can be lodged in writing, by telephone, by electronic mail or in person. Post-free complaint forms are available at the Office of The Ombudsman and local District Offices of the Home Affairs Department. All complaints lodged with the office of The Ombudsman are treated in the strictest confidence and staff are required by law to maintain secrecy.
The areas attracting substantial numbers of complaints generally relate to error, wrong advice, unfavourable decision, disparity in treatment, unfairness, delay, ineffective control, negligence, omission, lack of response, rudeness, unhelpfulness and abuse of power. The number of the enquiries and complaints received since the reporting year 1993/1994 is at Annex 5.
A primary function of the Office of The Ombudsman is to investigate complaints alleging mal-administration by Government departments and public organisations within The Ombudsman’s jurisdiction. Nevertheless, not all complaints merit full investigation. The Office will determine whether a complaint should be investigated or resolved by alternative resolution methods. Cases that are complex or involve issues of principle, serious mal-administration, gross injustice, systemic flaws or procedural deficiencies will be subject to rigorous investigation. Depending on the circumstances and the gravity of the injustice involved, recommendations for redress will be made by The Ombudsman.
If an investigation report to the head of the organisation concerned is not adequately acted upon, The Ombudsman may submit the report and recommendations together with any further observations to the Chief Executive of the HKSAR. The Ombudsman may also make a further report to the Chief Executive if a serious irregularity or injustice has taken place and a copy of such further report shall be laid before the Legislative Council.
Conducting direct investigations is often time-consuming as the issues tend to be more complex and widespread. Since The Ombudsman was empowered to initiate investigations, a total of 31 direct investigations have been completed. Reports are available for public perusal at the Resource Centre of the Office.
Alternative Dispute Resolution (ADR)
Apart from formal investigations upon receipt of complaints and direct investigations initiated by The Ombudsman, the Office also handles simple and straightforward complaints by various ADR methods for more flexible and speedier resolution, as outlined below. The number of the complaints handled by different ADR methods in the reporting year 2000/2001 is at Annex 6.
Internal Complaint Handling (INCH)
INCH was first introduced in January 1996 whereby with complainants’ consent, simple complaints are referred to the organisations concerned for investigation and reply through their internal complaint handling procedures. The Office will monitor the replies and intervene if the organizations fail to address or resolve matters satisfactorily. If mal-administration or injustice is suggested from the organisation’s interaction with the complainant, The Ombudsman may decide to launch a formal investigation during the course of or upon completion of INCH. This mode offers an opportunity for organisations to reflect on their service environment and make improvement and adjustment where necessary, while promptly addressing the concerns and grievances of complainants.
Rendering Assistance/Clarification (RAC)
Under RAC, the organisations complained against will be asked to reply to the Office with all relevant information. The complainants will then be provided with explanation and clarification in writing when The Ombudsman is satisfied with the response from the organisations.
In practical terms, the RAC method is similar to the preliminary stages of a full investigation. The difference lies in the absence of the formal procedures relating to the declaration of an investigation and the request for comments from the organisations on the eventual investigation reports. RAC is particularly appropriate for complaints which do not indicate evidence of mal-administration or in which organisations have taken remedial action. It simplifies the process and allows the staff of The Ombudsman to concentrate on investigations into more serious and complex cases.
The Ombudsman introduced mediation in April 1997. This is a confidential, and voluntary process in which the complainant meets with representatives from the organisation concerned through the good office of an impartial third party. The aim of mediation is to foster a “mutually satisfactory” situation. It enables complaints to be dealt with in shorter time and results in more amicable solution for complainants and organisations concerned. This is in line with the ombudsman concept of striving for resolution to problems rather than finding faults. The response from complainants and organisations concerned suggests that in most cases, mediation is considered an effective, efficient and less acrimonious means of resolving complaints.
Education and Publicity
The Ombudsman Awards were established in 1997, presented annually to organisations whose efforts in complaint management are exemplary and praiseworthy. The awards have been extended to individual public officers since 1999. Complainants, who through lodging their complaints with this The Office of The Ombudsman, contributed to the improvement of Government’s administration, will be issued certificates of appreciation by The Ombudsman.
The Office of The Ombudsman also undertakes a wide variety of activities to educate the public of their rights to a fair and open, responsible and responsive, efficient and effective public administration. These include:
distributing publicity leaflets and posters;
broadcasting messages on television and radio;
publishing a regular newsletter “OMBUDS News” with selected case summaries, sometimes with special announcements through the media;
conducting visits and talks to Government departments, major statutory organisations, universities, schools, social services organisations and District Councils;
enlisting the assistance of Justices of the Peace to promote ombudsmanship;
organising workshops on complaint management for staff of public sector organisations;
opening The Ombudsman’s Resource Centre to the public;
developing teaching kits for school youth;
producing publications on different topics to promote good governance; and
launching roving exhibitions to introduce the work of the Office.
The major publications are listed at Annex 7. More information, including the summaries of the Annual Reports of the Office for the past six years, is accessible on the Internet at http://www.ombudsman.gov.hk/
Liaison with Ombudsman Institutions
Since 1998, The Ombudsman of Hong Kong has been a member of the Board of Directors of the Asian Ombudsman Association. In September 2000, she was elected to the Board of Directors of the International Ombudsman Institute as a representative of the Australasian and Pacific Region. The Office of The Ombudsman is also a member of the Society of Professionals in Dispute Resolution (SPIDR) in the USA. Through participation at international conferences and related professional activities, the Office of The Ombudsman keeps abreast with the developments in other ombudsman jurisdictions and enable people outside Hong Kong to be informed of developments in Hong Kong. The Ombudsman appreciates the friendship and contact with compeers worldwide.
On 1 April 2001, the Office of The Ombudsman was “delinked” from the administration and financial systems and procedures of the Administration. It commenced operation with its own human resource management mechanism, financial and accounting systems and staffing policies. On 28 November 2001, the Ombudsman (Amendment) Ordinance was enacted to ensure the proper functioning and administration of the Office of The Ombudsman after its delinking from the Administration, and to extend The Ombudsman’s jurisdiction to two more statutory bodies, namely the Equal Opportunities Commission and the Privacy Commissioner for Personal Data.