******************************************************
Following is a question by the Hon James To and a written reply by the Secretary for Commerce and Economic Development, Mr Frederick Ma, in the Legislative Council today (January 9):
Question:
In reply to a question on May 30, 2007 raised by a Member of this Council concerning Obscene Articles Tribunal adjudicators, the then Secretary for Home Affairs (SHA) said that "in the event that a Tribunal adjudicator has made public comments on matters before the Tribunal, the Judiciary's position is that the adjudicator concerned will be disqualified from sitting on the Tribunal in the matter in question. In this context, the appropriate test is that an adjudicator is disqualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the adjudicator would be biased. Whether the adjudicator concerned will be disqualified from sitting in a similar case in the future will have to be considered by applying this test to the circumstances of the case in question". SHA also said that "the Judiciary will ensure that the adjudicators understand the test and that the test is applied". In this connection, will the Government inform this Council whether it knows:
(a) how the Judiciary monitors whether the 320 adjudicators have made public comments on matters before the Tribunal; and whether any adjudicator has been disqualified from sitting on the Tribunal since May 30, 2007 as a result of such acts; if so, of the names of such adjudicators and details of their acts;
(b) whether, in drawing adjudicators to sit on the Tribunal, the Judiciary has, since May 30, 2007, taken into consideration if the adjudicators concerned had made public comments on matters before the Tribunal in the past, or if they had been disqualified from sitting on the Tribunal; and
(c) how the Judiciary ensures that the adjudicators understand the above test and know that the test is applied, and whether the Judiciary has issued written or verbal notices to all adjudicators in this regard; if the Judiciary has issued such notices, of the date of issuance; if not, the reasons for that?
Reply:
Madam President,
As the Obscene Articles Tribunal (the Tribunal) is a judicial body, I have consulted the Judiciary regarding this question and set out below is the consolidated reply.
To ensure that adjudicators of the Tribunal are apprised of the relevant test and of the fact that the Judiciary will apply the test, procedures have been put in place so that, before an adjudicator performs his/her statutory duty, he/she has to make a declaration in the presence of the Presiding Magistrate, the contents of which include a declaration to the effect that he/she is aware of and apprised of the relevant test, and a confirmation that such test will not result in his/her being disqualified from sitting on the Tribunal in the matter in question. In order to ensure the integrity and neutrality of the Tribunal, the Presiding Magistrate shall determine whether the adjudicator is fit to discharge the statutory duty according to the declaration.
To date, there has not been an occasion whereby a selected adjudicator was requested to desist from performing the statutory duty owing to his/her failing the relevant test.
Ends/Wednesday, January 9, 2008
Issued at HKT 14:29
NNNN
