Declaration of Interests

 

Preamble

The Private Columbaria Appeal Board (“Appeal Board”) is established under section 83 of the Private Columbaria Ordinance (“the Ordinance”) (Cap. 630) as an independent, quasi-judicial body. Its functions are to hear and determine an appeal lodged by an applicant or a holder of a specified instrument aggrieved by a decision made by the Private Columbaria Licensing Board (“Licensing Board”) or the Director of Food and Environmental Hygiene (“DFEH”) referred to in section 84(1) of the Ordinance. The Chairperson, Deputy Chairpersons and other members (hereinafter collectively referred to as “panel members”) of the Appeal Board are appointed on an ad personam basis. As they all play an important role in the determination of appeals under the Ordinance, it is crucial that panel members must be, and seen to be, impartial and independent without bias and favour. The responsibility for deciding on whether conflict of interests may arise and the appropriate course of action in each case rests with an individual panel member concerned.

Guiding Principles

A clean public service is a core value of our society. The community has highest expectations that public servants would observe the highest standards of conduct. Mere compliance with the law is plainly insufficient. They must conduct themselves in a manner which will maintain and strengthen public confidence in the integrity of the public service and avoid conduct which runs the risk of undermining public trust. It is of crucial importance that the public should have full confidence in the system for maintaining integrity and probity in our public service. It is fundamental to the integrity of public bodies that the decision-making process must be fair and impartial and be perceived to be so. It is only with a good system that we can uphold the dignity and honour of public offices.

Public servants are members of the public. As such, it is inevitable that they have interests, both financial and otherwise. It is of fundamental importance that there is in place a sound system for the prevention and handling of potential conflict of interests concerning public servants which commands public confidence. Such a system is vital for ensuring fairness and impartiality in the conduct of public business.

The Appeal Board is guided by the following considerations –

  1. Having regard to the hierarchy, the system applicable to the public servants at the Appeal Board level should be at least as stringent as that applicable to those at the Licensing Board level.
  2. The system must command public confidence.
  3. The system must have an appropriate degree of transparency.
  4. The system must take into account legitimate privacy concerns of individuals.
  5. The system must not be unduly burdensome for the efficient conduct of public business.

Two-tier Reporting System

Panel members should, and be seen to, ensure equality of treatment to both parties (an appellant and a respondent [1] ) to an appeal and make fair and impartial decisions free of conflict of interests. To maintain public confidence in the integrity of panel members and the impartiality of panel members’ decisions on appeals, the fundamental requirement is that all panel members should avoid situations which may compromise (or be seen to compromise) their personal judgement or integrity or lead to conflict of interests.

Under the rule against bias, an administrative decision may be quashed if the facts give rise to a real likelihood of bias or it might reasonably be thought that the decision-maker ought not to act because of some personal interests. It is therefore necessary for panel members to disclose their interests where there are real or potential conflict of interests in a matter placed before the Appeal Board. All panel members should disclose their direct or indirect interests (pecuniary or otherwise) on appointment to the Appeal Board and annually thereafter, in addition to the report of conflict of interests as and when they arise. In the interest of greater transparency, such declarations should generally be made available for public inspection. The two-tier reporting system is generally elaborated below.

Tier I: On Appointment and During the Term of Office

Panel members must ensure that during their term of office they must not, in any capacity, engage in any activity that might undermine, or be reasonably thought to undermine their independence and impartiality. Besides, panel members must not undertake any tasks or activities that may in any way limit their ability to discharge their duties of the Appeal Board to the full. In other words, panel members should not become, whether remunerated or not, directors, officers, employees or advisers of any companies seeking or holding a licence, an exemption or a temporary suspension of liability for operating private columbaria in Hong Kong; nor act, whether remunerated or not, in any professional capacity, including legal representatives, consultants or other remunerated work, on behalf of these companies on private columbaria matters. As a general rule, panel members must not appear before the Appeal Board (i.e. not to act as an authorized representative in any appeal under the Ordinance). The above restrictions should apply to panel members during their term of appointment to the Appeal Board, and, if the panel members are Chairperson or Deputy Chairpersons, to another 6 months after expiry of appointment to the Appeal Board as well.

Panel members should register in writing their personal interests, direct or indirect, pecuniary or otherwise, when they first join the Appeal Board, and annually thereafter, to the secretary to the Appeal Board. The registration shall be made on a standard form within one month after receiving the letter from the secretary to the Appeal Board.

Register of Interests

Tier II: When Handling Individual Appeals

According to section 85(3) to (5) of the Ordinance, any panel member who has direct or indirect interests in an appeal must not take part in hearing the appeal or making the decision. The Chairperson or a Deputy Chairperson must not act as the presiding officer if he or she has direct or indirect interests in an appeal. In the circumstances, the Secretary for Environment and Ecology may select a panel member who is legally qualified [2] and who has no known direct or indirect interests in the appeal, to act as the presiding officer. The presiding officer must select panel members with no known direct or indirect interests to hear an appeal.

When actual or potential interests are known, the secretary to the Appeal Board should withhold circulation of relevant papers to the panel member concerned. When a panel member is in receipt of appeal papers for discussion which, to his or her knowledge, will give rise to actual or potential conflict of interests, he or she should immediately provide the secretary to the Appeal Board with written disclosure of his or her interests and return the papers as soon as possible. If the panel member decides to withdraw himself or herself from sitting on the panel given the actual or potential conflict of interests that he or she has recognised, he or she should inform the secretary to the Appeal Board accordingly, in writing or orally, and return the papers as soon as possible.

All declarations of interest shall be recorded by the presiding officer in the course of the appeal proceedings. The secretary to the Appeal Board maintains at all times a register of written disclosures or oral declarations made by panel members of the Appeal Board for individual hearings. For further details on what constitute exclusionary interests and declaratory interests, please click here.

[1] A respondent may be Licensing Board or DFEH (whose decision is the subject of the appeal).

[2] According to section 82 of the Ordinance, “legally qualified” means qualified for appointment as a District Judge under section 5 of the District Court Ordinance (Cap. 336).