(AAB Appeal No. 57 of 2011)
The Complaint
The Complainant, a party to a criminal case, complained against the Court, and in particular, a Judge, in relation to the criminal case for:
1 unlawfully excluding from the court bundle the Complainant’s new evidence regarding two medical defence witnesses and the affidavit of the Duty Lawyer;
2 collecting the transcript of the proceedings from the Magistrates’ Court by unlawful or unfair means;
3 failing to inform the Complainant of the reasons for the refusal of two Data Access Requests made by the Complainant regarding the audio record or transcript; and
4 failing to respond to the Complainant’s data-correction request to correct an error of hearing dates contained in the judgment of the Judge.
Findings of the Commissioner
The Commissioner was of the view that the Judge had carried out the alleged acts in performing his judicial function. He held that the judicial system is protected by Articles 80 to 96 of the Basic Law, and the legislative intent of the Ordinance is that its application should not impede the acts of judges in the course of performing their judicial function. Thus, the complaints were outside the Commissioner’s jurisdiction. Accordingly, the Commissioner decided not to investigate the complaint.
The Appeal
The AAB held that the Judge was not performing his judicial function when assisting in the preparation of the court bundle. But the Commissioner’s decision could be justified by other reasons; for example, the legislative intent of the Ordinance was for the Commissioner not to interfere with judicial proceedings. It was also held that the Judge was not a data user; the keeper and custodian of the court record was the Registrar of the High Court. Deciding whether to release the documents and on what charges were not judicial acts of the Judge. It is the Registrar’s administrative decision how to respond to the data access request. The clerk to the Judge could simply issue a corrigendum to amend the incorrect hearing date.
The AAB's Decision
The Appeal was dismissed.
uploaded on web in January 2014