Why we should never pin a price tag on justice in HK

PUBLISHED : Sunday, 31 October, 1993, 12:00am
UPDATED : Sunday, 31 October, 1993, 12:00am

SOME concern has been expressed recently that the Legal Department may be wasting taxpayers' money, may be unaccountable for its actions, and may not be serious about the localisation of its staff. These are serious matters. I would like to show the concern is quite unfounded.

Suggestions that the department is wasting taxpayers' money have been made about the work of the Prosecutions Division and Civil Division.

No one outside a totalitarian regime would expect all prosecutions to end in a conviction. An acquittal does not mean that decision was made in error or that the prosecution was conducted incompetently.

The conviction rate in Hong Kong indicates that the Prosecutions Division is serving the community well. In the District and High Courts, the conviction rate is 60 to 80 per cent. This compares with a conviction rate in the English Crown Courts in 1992-93 of about 55 per cent.

All prosecutions and appeals cost money, whether they result in a conviction or an acquittal. It is wrong to regard as wasted the money spent on a case that ends in acquittal. You cannot put a price tag on an acquittal. If you do that, you are putting a price tag on justice, and that devalues the rule of law in Hong Kong.

Each year, prosecuting counsels conduct more than 4,000 prosecutions, including more than 800 trials in the High Court and about 1,400 in the District Court.

An average of 60 counsel (including barristers briefed from the private Bar) and 30 court prosecutors appear in court or the magistracy each day to put the case against the defendant fairly and professionally.

I say fairly, because it is a fundamental principle that a prosecutor is a ''minister of justice''. It is not the duty of the prosecutor to obtain a conviction by all means to his or her command, but rather to put before the court fairly and impartially all the facts of the prosecution case.

Some cases do take too long. However, in the vast majority of cases, the delay is because a suitable court is not available. The The Legal Department is as anxious as anyone to see criminal charges dealt with expeditiously, and we are working with the Judiciary and the legal profession to reduce the waiting time for trials. The average waiting time for trials in the High Court has been reduced from 12 1/2 months in 1991 to 7 1/2 months at the beginning of this year.

Let us look now at the Civil Division. A significant part of its work involves the bringing or defending of civil proceedings on behalf of the Government. In civil cases in 1992, judgment was given in favour of the Government in 425 cases and against theGovernment in 29 cases.

It is inevitable some claims against the Government are justified and will result in costs being paid by the taxpayer. But to say cases should not be brought or defended if there is any prospect of an order for costs being made against the Government, would encourage potential litigants to bring unmeritorious or inflated claims or to resist the justified claims of the Government.

The Legal Department is publicly funded and it is only right the Department and I should be accountable for our actions.

The Department's finances are subject to the scrutiny of the Director of Audit and of the Legislative Council's Finance Committee and Public Accounts Committee. I am answerable to Members of the Legislative Council, who frequently raise questions on a broad range of subjects.

Recently, the Legislative Council established a Panel on the Administration of Justice and Legal Services, which will include the examination of our policies and management. I welcome its establishment as another public forum in which I can explain my department's activities.

We are always looking for ways to improve the way we operate. Our system of internal monitoring involves many measures aimed at ensuring our work is undertaken efficiently and effectively. These include: Ensuring work is handled by an officer of the requisite experience and competence.

Ensuring the more junior officers are properly supervised by senior officers.

Having a regular staff reporting system.

Establishing internal guidelines on the way work is handled.

I do not claim my department never makes mistakes. Given the volume and complexity of the work it handles, mistakes occur. We learn from them.

I must explain two important limitations on our public accountability. The first relates to our work in respect of prosecutions.

Under our constitution, the decision whether or not to prosecute is a matter for the Attorney-General who, in this respect, acts completely independently. On the other hand, the question of guilt is a matter for the courts. Neither of these two principles should be interfered with.

If the defendant has been prosecuted but acquitted it cannot be in the interests of justice and fairness for that acquittal or its reasons to be debated in public.

If the defendant has been prosecuted and convicted it would hardly be proper to discuss whether the conviction was correct. If the defendant felt he should not be convicted he would appeal.

If criminal proceedings were not taken, it would not be fair or just to discuss why the accused was suspected and the reasons for not prosecuting. To embark on such a course would be tantamount to a trial but it would not be in accordance with court procedures and would not be confined to admissible evidence.

The second limitation on our accountability relates to the legal advice given by my department. Following British Parliamentary practice, it would not be right for advice given to client departments and branches to be disclosed.

These limitations are important but, subject to them, the Legal Department and I are accountable for our actions, both in theory and in practice.

Let me turn to the pace of localisation in my department. Historically, it has been difficult to attract local lawyers into joining the Government, and also to retain those who did join. The principal reasons were the shortage of local lawyers and the competing demand by the private sector.

Contrary to popular belief, efforts to localise the Legal Department are not a recent matter but go back more than 20 years. However, when it became apparent in the late 1980s that those efforts were not bearing fruit, we realised special measures were necessary and devised and implemented them. They include: A fast-track promotion scheme to enable local Crown Counsel to be promoted earlier than usual (the ''double ladder scheme'') created in 1988.

A scheme to improve the chances of promotion to the Directorate of local Senior Crown Counsel (the ''Development Posts Scheme'') created in June 1991.

A Legal Trainee programme, created in 1992, to enable local men and women who have completed their legal studies in Hong Kong to receive their practical legal training in my department and to make their careers with us.

A vigorous local recruitment drive aimed at attracting able local lawyers to join, which this year has had a far better response than we have ever achieved.

A proposed scheme to give local directorate officers early exposure to the work and responsibilities at the level of deputy law officer.

A proposal to appoint local officers to three of the five Law Officer posts before the end of 1995.

The combined effect of these special measures will provide local counsel at all levels, with opportunities for special training and promotion that are to be envied. Already the measures have produced significant results.

Our wastage rate of local counsel has declined dramatically from 20.2 per cent in 1988 to 6.8 per cent in 1992. In December 1988, the percentage of local lawyers at the Senior Crown Counsel rank was 23 per cent; in September this year it was 54 per cent.

In the period since June 1991, the percentage of local lawyers in the directorate has risen from 11 per cent to 20.8 per cent. And, the figures will continue to rise.

I am firmly committed to the localisation of my department. As the Governor said in his recent policy address, the Government has a special responsibility to pave the way for Hong Kong people running Hong Kong. We must ensure that, before 1997, the Government is led as far as possible by local people. At the same time, it is right to acknowledge the contribution made by the expatriate lawyers in the Department.

My department plays a crucial part in the Government of Hong Kong, and the community is entitled to a quality service. Now, as never before, the people of Hong Kong are looking to the rule of law and the proper administration of justice as the bedrock onwhich society rests. The Legal Department plays an essential part in the preservation of the highest standards in pursuit of that objective.