Eyes on the watchmen

PUBLISHED : Thursday, 16 December, 2010, 12:00am
UPDATED : Thursday, 16 December, 2010, 12:00am

Quis custodiet ipsos custodes? The Roman poet Juvenal posed the question: 'Who watches the watchmen?' When Sir Murray MacLehose established the Independent Commission Against Corruption, its priority was to root out corruption in the Royal Hong Kong Police Force, a task it achieved with considerable success.

A key element in this success was the backbone of former Criminal Investigation Department officers recruited from various British police forces. They carried no local baggage, no legacy of past obligations - just skill, experience and integrity. Answering directly to the governor, they were proud of their independence from government. These qualities brought about the transformation of Hong Kong's police into the relatively corruption-free force that it is today.

The ICAC became a byword for integrity. But how valid is that reputation today and who watches the watchmen?

The creation of an elite law enforcement body carries the risk that this very elitism breeds an arrogance best characterised as a sense of untouchability. The temptation to manufacture or suppress evidence in order to secure a conviction is a constant threat not only to the integrity of the officers but to the prosecution itself.

If there is truth in the latest allegations of ICAC officers trying to compel a witness to tailor his evidence to its requirements, it speaks of a frightening abuse of power. In the case brought against barrister Kevin Egan and solicitor Andrew Lam Ping-cheung, it was alleged that the ICAC destroyed a critical record of a tapped telephone conversation in its custody.

A single incident might be disregarded, but all three reports of the panel of judges appointed to oversee covert surveillance operations demonstrate that ICAC officers flagrantly ignore both the spirit and the letter of the legislation designed to protect the public from illegitimate telephone intercepts, especially privileged lawyer-client communications.

This cannot be dismissed as the errant behaviour of junior officers because it is the product of a climate of impunity infecting all levels and either encouraged or ignored by the Department of Justice's counsel, who are responsible for advising the commission.

Even a layman reading the Court of Final Appeal's judgment clearing Egan and Lam of all charges can see for himself that the prosecution was founded, substantially, on the testimony of manifestly unreliable, if not downright lying, witnesses. Yet the case had to go through the entire appellate process at considerable public expense before its dire deficiencies were exposed. Given that both Egan and Lam had been lawyerly thorns in the ICAC's side, some drew their own unhappy conclusions about the motive for the prosecution.

It is difficult to reconcile the present incarnation of the ICAC with its glory days. What remains is a largely overzealous, hyper-suspicious animal, jealous of its powers and demonstrating a remarkable contempt for the administration of justice.

So what has gone wrong? In essence, a lack of independent oversight. What, then, is the role of the Director of Public Prosecutions in this process? The proper function of the DPP is to hold the balance between public and private interests.

This is in marked contrast to the role of the Secretary for Justice, whose political role is to advise the government. As such, it is manifestly inappropriate for the DPP to be embedded in the prosecutions division of the Department of Justice.

The DPP is responsible for all prosecutions brought by any of the authorities charged with the pursuit of the ungodly, including the ICAC. He carries a heavy responsibility to ensure that those who ought to be prosecuted are and those who shouldn't aren't. By definition, this demands genuine independence and objectivity, certainly not - with all due respect - qualities readily associated with the career path of a government servant drawn from the pool of prosecuting counsel.

There will often be instances when the behaviour of high-profile members of the community and civil servants needs to be considered for prosecution. A system of justice is ill-served where there is the potential perception of a vested interest or an uncomfortably close association with government.

All too often, investigative agencies and prosecuting authorities have an incestuous relationship. It is for this reason that in England and Wales the DPP is appointed from the private sector and on a contract for a limited period. Eminent counsel drawn from the private sector bring with them a scrupulously stubborn independence of mind.

In Hong Kong, the policy is to make the appointment from within the Department of Justice, provided there is 'a suitably qualified candidate'.

The prime quality of independence of mind is the very antithesis of someone in government employ. Inevitably, such candidates will have operated closely with prosecuting authorities and built up a sound working relationship and loyalties. These are factors that, with the best will in the world, hardly work in favour of objective oversight.

None of this is to say that either the incumbent DPP or any of his predecessors are less than honourable men.

However, the principle that justice must not only be done but must be seen to be done applies with special force to the work of the DPP.

It does not enhance Hong Kong's international standing for the position of DPP to be seen simply as a stepping stone in the career of someone in the government's prosecuting authority.

Neville Sarony is a practising silk in Hong Kong and has been instructed on behalf of the ICAC in the past