In-house lawyers play important role

PUBLISHED : Friday, 07 July, 1995, 12:00am
UPDATED : Friday, 07 July, 1995, 12:00am

I REFER to the letter from Ms Anne Godfrey (South China Morning Post, June 30), about the desirability of briefing every criminal case to the private Bar. May I in reply make the following comments.

The briefing-out system, in use for the past 30 years, has been a valuable part of the legal system in Hong Kong, and has helped with the operational needs of the Prosecutions Division. We intend to carry on with this system and to continue to brief a percentage of our cases to the private Bar.

On the other hand, there are strong public interest grounds for retaining a fairly substantial number of in-house lawyers in the Prosecutions Division who have competence and experience to prosecute cases in court, for these reasons: The Hong Kong Government, like all governments, must have available to it a corps of lawyers whose services are exclusively theirs, in the sense that the government does not have to compete with others to secure the full commitment of time and resources.

This consideration is especially important taking into account the need for confidentiality, continuity, and special expertise which is not easily available in the private sector.

Actual experience in conducting cases is essential for those who have to evaluate evidence to make prosecution decisions. These lawyers in the Legal Department need to keep themselves up-to-date and in touch with how the criminal law works in the courts.

It could be expected that the morale of staff joining the department would be affected if they lose the opportunity to appear in court. A significant number of those who recently joined have done so specifically to become advocates.

In some cases, particularly those in the higher courts and in the magistrates court, it is more cost-effective to prosecute them in-house.

In addition to this forensic role of lawyers in the Legal Department, the Prosecutions Division also has an important role outside the courts. It is unfortunate that this has been overlooked.

The division is sub-divided into 15 units each with its own specialist function. They include an Extradition Unit, a Drugs Asset Recovery Unit, a Bill of Rights Unit, and a Research and General Advice Unit, to name just a few. Each unit is composed of specialists, and provides professional expertise to handle the complex nature of much of the work in these specialist units. The duties of the Research and General Advice Unit, for example, include reviewing and recommending changes in criminal law and procedure, and assisting in the giving of drafting instructions and commenting on criminal legislation.

The law enforcement agencies and other government departments depend on the Prosecutions Division for advice, which sometimes has to be provided urgently. There are also matters which require counsel to work closely together with other government departments, and others which necessitate lengthy meetings or involve extensive research. It is neither practical nor cost-effective to have a practising barrister, who does not have ready access to government departments, to take up such work.

P. NGUYEN, QC Director of Public Prosecutions