Free to decide
As the secretary for justice prepares to oversee his third director of public prosecutions in less than 18 months, the time has come for the roles of the secretary and the DPP to be redefined in a way that promotes prosecutorial independence.
The old colonial arrangement, whereby the secretary controls the DPP and intervenes in prosecution decisions, is no longer tenable. The secretary is a politically appointed minister who sits on the Executive Council and answers to the chief executive, and yet the prosecution process must be manifestly free of the political overtones associated with this situation.
Perceptions are important, and the fiction that a minister in a government can legitimately wear two hats, one as politician and one as prosecutor, has been largely discredited and discarded in many jurisdictions, including England and Wales. Removing a politician from involvement in prosecution decisions would promote confidence in the integrity of the system and align Hong Kong with developments in the common law world.
The recent trend has been for politicians either to disengage altogether from the prosecution process, as in Ireland, or else to keep their involvement to an absolute minimum, as in Australia, and the lessons must be learned.
In England and Wales, Baroness Patricia Scotland QC, the attorney general in the last Labour government, issued a protocol in 2009 that reformed the relationship between the attorney general and the DPP. All prosecution decisions are now taken independently by the DPP, save in exceptional circumstances. The attorney general will only ever become involved in a particular case if he or she is required by law to give a specific consent to the case proceeding, or if, as the protocol puts it, 'it is necessary to do so for the purpose of safeguarding national security'.
In Australia, the federal DPP now operates an independent office. He or she acts independently of both the attorney general and the political process. Although the attorney general can issue guidelines and directives to the DPP, this can only occur after he has fully consulted the DPP. In New South Wales, the independence of the state DPP is seen as a safeguard against corruption and interference in the criminal justice system.
In Canada, an independent federal prosecution service was created in 2006. By law, the DPP acts independently in the discharge of the prosecution function. Although the attorney general has a residual power to intervene in a particular case, he or she must do so in writing and a notice must be published in the Government Gazette. The notice alerts the public, and the power is not lightly invoked. In Nova Scotia, following a miscarriage of justice and a royal commission, responsibility for provincial prosecutions was transferred from the attorney general to an independent DPP.
In my own experience, the community is far more prepared to accept decisions that are taken personally by the DPP, without the involvement of the political appointee. In 2003, for example, after the secretary for justice withdrew from the case to avoid the perception of conflict of interest, I alone took the decision not to prosecute former financial secretary Antony Leung Kam-chung for alleged misconduct in public office. Although not everyone agreed with my reasoning, most people accepted I had acted impartially, and in good faith.
In contrast, when the decision not to prosecute people associated with Zimbabwean President Robert Mugabe and his family for alleged assaults on journalists was taken jointly by me and the secretary in 2009, there was widespread concern that political factors could have influenced the decision. Although they had not, many people felt uneasy, and the situation highlighted the need for radical change. This is achievable under the Basic Law, and the secretary, given his governmental functions, should now step back from the prosecution process.
Article 63 of the Basic Law provides that 'the Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions'. Control, crucially, is vested in the department and not the secretary, although that is not how it has been interpreted, perhaps for historical reasons. A switch in responsibility for the control of prosecutions from the secretary to the DPP could come into effect internally, without legislation, and there is a clear public interest that this be done.
Such an arrangement would also be constitutionally legitimate, as the DPP is a law officer operating under the umbrella of the Department of Justice. As a politically neutral civil servant, he or she would be able to command public confidence over prosecution decisions in a way that is not always possible with a political figure, who must answer to a political master. If the buck stopped with the DPP, this would be good not only for justice, but also for the appearance of justice.
The decision whether to prosecute a suspect is a quasi-judicial function. This responsibility must therefore be exercised by a public prosecutor who is truly independent of government and is seen to be above politics.
Hong Kong's present arrangements are antiquated, and no longer pass muster by international standards. Prosecutions, after all, are too important to be left to the politicians.
Grenville Cross SC, the former director of public prosecutions, is an honorary professor of law at the University of Hong Kong, and represents Hong Kong in the senate of the International Association of Prosecutors