Outgoing DPP sticks by his decisions

After 12 years as Hong Kong's chief prosecutor, Grenville Cross will be remembered more for the cases he did not prosecute than for those he did.

His record term as director of public prosecutions (DPP) began with controversy over the non-prosecution of publishing tycoon Sally Aw Sian in 1998 and ended with the recent row over a decision to grant diplomatic immunity to the wife of Zimbabwean leader Robert Mugabe. In between, he personally made the call not to prosecute former financial secretary Antony Leung Kam-chung.

These decisions and others brought allegations from critics that political considerations had swayed the Department of Justice. But reflecting on his term as top prosecutor, one which coincided with Hong Kong's period of adjustment to the one country, two systems arrangements, the 58-year-old British lawyer said he had no regrets.

'Every decision I have made has been on the basis of strict prosecution policy. Looking back, I don't regret a single decision. If I had to make any of those decisions again, I would make the same decision,' he said.

Cross, who stepped down as DPP last month, said he had been surprised by the hostility with which some decisions on prosecutions had been greeted. 'People sometimes attributed bad motives to us for what I know to be unjustifiable reasons. There were controversies about prosecutorial decisions before 1997, but the level of suspicion which has existed in some quarters has surprised me,' he added.

The veteran government lawyer shed fresh light on the Aw controversy. He also said he was open to the idea of shifting the responsibility for independent decisions on prosecutions from the secretary of justice to the DPP, as has recently been done for most cases in Britain.

But when he looks back on the last 12 years, Cross recalls that but for a 'twist of fate' he would not have been DPP at all. He grew up in Bury St Edmunds, Suffolk, before studying law at Southampton University and becoming a barrister in 1974.

Only four years later, at the age of 26, he set out for Hong Kong after being shown a newspaper advertisement for a job with the Legal Department. It was the start of more than three decades as a government lawyer. But when Cross set his sights on becoming DPP in the run-up to the handover he was told it was a job he could never have.

'In the British time, I was told I could not be DPP because of the localisation policy which was then being forced through,' he said. 'I was told I was not a local, notwithstanding the fact I had lived here many years.'

Ironically, the change of sovereignty in 1997 paved the way for him to realise his dream. After turning down an offer to become a High Court judge, Cross received the call he was hoping for. Suddenly needing a top prosecutor shortly after the handover, the new secretary for justice, Elsie Leung Oi-sie, turned to him. 'It was a very interesting twist of fate. All my friends had been urging me to take [the job as a judge]. They said you must be mad to reject it. But fate has a way of turning things in one's favour.'

So why is he now leaving a job he clearly loved? There had been rumours in legal circles that Cross had been lobbying hard for yet another extension to his contract.

'There is never an ideal time to go. But I told the department in 2006 I thought 2009 would be a good time, because by then I would have completed exactly 33 years as a public prosecutor and exactly 12 years as DPP. It seemed to me 2009 was a good time to go.'

He would like to be remembered as a DPP who made the prosecution process more transparent and forged contacts with prosecutors around the world. He remains Hong Kong and China's representative on the Executive Committee of the International Association of Prosecutors. Links with the outside world became vital after 1997, said Cross.

'This was a massive challenge I faced at that time. The eyes of the world were on Hong Kong. No one knew whether one country, two systems was going to succeed and how it was going to work out.'

One of the tests would be the legal system including the prosecution process. 'This meant I had to adopt an approach to public prosecutions which was perhaps far more imaginative, far more visionary and far more innovative than had been the case in respect of my predecessors,' said Cross.

It was necessary to ensure people around the world understood how Hong Kong's prosecutors worked, he said. Greater transparency - especially over decisions on whether to prosecute - was also intended to offer reassurance and establish credibility. But high-profile decisions not to prosecute have caused controversy.

Critics, including some prosecutors, have argued Cross was all too willing to make decisions which would find favour with people of influence and power.

He rejects such criticism outright. The pressure, he said, came instead from victims of crime, lawmakers and the media.

And this had to be put aside so that decisions could be made in accordance with the correct criteria.

'There are some people who will always insist there should be prosecutions, no matter what you say and no matter how good your reasoning. Those people apart, I think that if the general community is reassured by a policy of openness and if we are transparent this helps to diffuse tensions and dispel myths.'

The case of Aw, who was named as a co-conspirator in a newspaper circulation fraud case but not charged, sparked concerns that wealthy and well-connected people would be able to escape prosecution in post-handover Hong Kong.

Elsie Leung said at the time there was insufficient evidence to prosecute Aw. She went on to say that even if there had been, a prosecution would not be in the public interest because it would result in many of Aw's employees losing their jobs. Cross has always said he supported Leung's decision, despite reports of disagreements.

'It was clearly a very difficult time for us and also a very early period in my relationship with Elsie Leung. She didn't know me that well and I didn't know her that well. She had some criminal law background but it was essentially a family law practice that she came from so she had to rely on me to a great extent,' he said.

'There were definitely weaknesses in the evidence against Sally Aw. Looking back, people think it was solely decided on public interest grounds. In fact, this was decided first on evidential grounds.'

Cross said he had never before encountered the idea that someone may escape prosecution on the grounds that this would cause job losses.

'This was a new concept to me. Obviously, I had to discuss this in great depth with Ms Leung and decide whether this was a correct approach to adopt,' he said.

Cross said he wrote to prosecutors in other parts of the world to ask what their approach would be and, although some were non-committal, most said they would consider job losses as a factor to be taken into account. 'At the end of the day, I agreed with Ms Leung a prosecution could not be justified on those grounds. If I had thought in any way at the time any improper motives were intruding into the decision I would have had no option but to resign.'

Cross said lawyers representing Aw had also argued that her position as a member of the Chinese People's Political Consultative Conference and contributions to charity should weigh against a prosecution.

'We rejected all those,' he added. Other alleged conspirators were jailed. Cross said the non-prosecution of Aw on the grounds of lack of evidence was 'borderline'. 'On balance, I could see the case for saying there wasn't quite sufficient evidence to justify a prosecution.'

Controversies over such cases have brought calls for the DPP to be allowed to make decisions on prosecutions independently. The Basic Law says the Department of Justice should make such decisions 'free from any interference'. This means the buck ultimately stops with the secretary for justice. But as the secretary is a political appointee accountable to the chief executive, concerns have been raised about a conflict of interest in sensitive cases.

In England this year, a protocol was issued providing that the attorney general should not be involved in most decisions on prosecutions.

Cross said: 'I think perceptions can be quite important. I think the present system is working quite well, but it is something to which future consideration can be given.'

He said an independent or semi-independent DPP would be consistent with the Basic Law and it may offer some reassurance to the community. But people would still criticise decisions on prosecutions and say they had been made under pressure, so it is 'not a magic wand', he added.

Cross is proud of reforms he introduced on prosecution policy, victims and witnesses, and the handling of evidence.

Asked what challenges face his successor, Ian McWalters, he said: 'In the case of criminal justice initiatives, we have done a lot already. He is older than I am, so you have to bear that in mind. The retirement age is 60 in the civil service.' McWalters is 58.

Cross added: 'We have laid a solid foundation now, not only for him but for my other successors. They must keep moving forward and identify the areas that require reform and modernisation.'

But his greatest achievement, he says, is lasting in the job for 12 years.

'No one previously had done more than four. Of course, after 12 years, one makes powerful enemies, both within government and outside, and the real surprise is not that I am going, but that I have managed to survive for so long.'

Cross is coy about his plans. He intends to take his wife, a former police superintendent, to South America and will do some writing and lecturing.

Relaxation takes the form of walks on Lantau, reading Graham Greene novels and collecting early postcards of Shanghai and Macau.

'I am certainly not ruling anything out. All options remain open. Winston Churchill became prime minister at 65. It is not the end of the road.'