Alan Hoo weighs in on DPP debate

PUBLISHED : Thursday, 23 June, 2011, 12:00am
UPDATED : Thursday, 23 June, 2011, 12:00am


A day after the government said an independently operating director of public prosecutions would go against the Basic Law, the chairman of the Basic Law Institute has said just the opposite.

Alan Hoo, who is also a long-time senior counsel in criminal law, questioned why the secretary for justice - who is appointed by the central government and after nomination by the chief executive - would resist giving full control of public prosecutions to the prosecutions director.

'For a political appointee to insist on being involved and in charge of all decisions concerning whether to bring a criminal prosecution against any individual, our view is that it is an apparent breach of the Basic Law,' he said.

The director of public prosecutions decides who to prosecute for criminal offences, but operates under the secretary for justice, who can take complete authority.

The debate was sparked by an article written by former director of public prosecutions Grenville Cross in the South China Morning Post last week. He advocated a 'radical review' under which the secretary for justice would leave decisions on prosecutions to the director.

In a paper to be submitted to the Legislative Council's panel on administration of justice and legal services on Monday, Cross said England and Wales, Canada and Australia had a separation of attorneys general and directors of public prosecution and Hong Kong should follow suit.

A number of controversial decisions arose during Cross' 12-year reign. Sing Tao newspaper tycoon Sally Aw Sian was not prosecuted for fraud, nor was financial secretary Antony Leung Kam-chung prosecuted for buying a car before he announced a new-vehicle tax. And Grace Mugabe, first lady of Zimbabwe, was given diplomatic immunity after allegedly assaulting a journalist.

'The public would have had more confidence in those decisions if it had been reached by an independent or semi-independent DPP rather than the director in conjunction with the secretary for justice,' Cross said. 'The lessons are there to be learnt.'

While the Department of Justice said in a paper submitted to lawmakers on Tuesday that Article 63 of the Basic Law would not allow an independent public prosecutor, Hoo said the institute did not wish for a fully independent department. As in England and Wales, the secretary for justice could set up a constitutional convention, making it clear that he would not be involved in the director of public prosecutions' decisions, though the director would technically remain his subordinate.

Hoo also said Article 63 referred specifically to political pressure when it said the department of justice would control criminal prosecutions 'free from any interference'.