In the wrong hands
The price of justice,' said Arnold Bennett, 'is eternal publicity.' A series of recent cases has placed the spotlight on the need for a radical review of the way in which criminal prosecutions are controlled. Prosecutions at present are the responsibility of a minister in the government who is appointed by the central authorities on the recommendation of the chief executive, and such an arrangement is no longer viable, as recent developments have shown.
The alleged assault by an activist on the chief executive at the Museum of History created a situation in which real problems of perception could have arisen, and may yet arise, as the secretary for justice, who sits with the alleged victim in the Executive Council - and is beholden to him - has overall responsibility for the decision whether or not to prosecute the suspect. This, by any yardstick, is less than satisfactory, particularly for the suspect.
The news that at least two of the secretary for justice's fellow ministers have allegedly allowed illegal structures to exist on their properties, and may thus be liable to prosecution, again shows the need for the secretary to withdraw from involvement in the prosecution process, and to cede responsibility to a politically neutral director of public prosecutions.
Decisions on cases of this type will undoubtedly be taken on proper grounds. But after the secretary for justice, to avoid any appearance of bias, has recused himself, it is vital that the public can see for themselves that correct procedures have been followed. The time has come, in the best interests not only of the community but of the officials themselves, for clear blue water to be placed between the roles of the secretary and the director of public prosecutions.
In an unrelated case, a former senior civil servant has claimed that political pressure was brought to bear on him by senior government figures over the awarding of an information technology contract, and there is a clear public interest that allegations of political interference are never made in respect of the conduct of public prosecutions. The obvious means of preventing this is for the secretary for justice to disengage from involvement in the decision-making process, and to concentrate instead on his main function of giving legal advice to the government.
In England and Wales, the bulk of the prosecution powers of the attorney general have now been handed over to the director of public prosecutions, and this was achieved by means of a protocol which provides for most decisions to be taken independently by the director. This arrangement has been widely welcomed by prosecutors and the wider community, and it provides a useful precedent for Hong Kong.
The importance of there being a chief prosecutor who is free of political control has been acknowledged not only in the major common law countries, but also in some of the smaller jurisdictions, including ones within the British sphere of influence.
On May 1, for example, Cheryll Richards QC became the Cayman Islands' first director of public prosecutions, and she is now solely responsible for instituting or discontinuing prosecutions in the jurisdiction. As its chief prosecutor, Richards enjoys a constitutionally guaranteed independence, and is not subject to the control of the attorney general or anyone else. What is good for the Cayman Islands would, undoubtedly, also be good for Hong Kong. Although some people, particularly those who favour the status quo, have suggested that the Basic Law prevents the control of prosecutions from being vested in the director of public prosecutions, a creative interpretation is both legitimate and desirable. Article 63 does not place the control of prosecutions in a named individual but in the Department of Justice, and it is logical for the director of public prosecutions, as a law officer of the department, to assume this responsibility. The director, moreover, must also operate from a secure base.
Hong Kong named a new director of public prosecutions in January. Contrary to the impression that was given earlier by officials of a substantive appointment, the senior prosecutor appointed was given an unprecedented six-month term. The revelation is startling, as it means the post is now held only on sufferance. Although this arrangement may be for testing purposes, it also means that if the acting director of public prosecutions says or does anything which upsets his political masters during the probationary period, the appointment may be revoked. A chief prosecutor ought not to have to keep looking over his shoulder in this way, and the situation highlights the importance of a director of public prosecutions who is not only free of political control, but who also enjoys job security.
Hong Kong's prosecution arrangements are clearly unsatisfactory and will hopefully be reviewed soon. If they are not, it is to be hoped that, once a new administration is inaugurated next year, the incoming secretary for justice will have the vision to modernise the system, and to align it with international norms. This will not only enhance public confidence in criminal justice, but also strengthen the rule of law.
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