Top prosecutor Kevin Zervos calls for curb on legal power of SFC

Kevin Zervos says finance watchdog should be stripped of its authority to prosecute as it could conflict with regulatory and investigative role

PUBLISHED : Saturday, 17 August, 2013, 12:00am
UPDATED : Saturday, 17 August, 2013, 3:53am

The Securities and Futures Commission should be stripped of its power to prosecute because it lacks sufficient internal regulation and oversight, Hong Kong's top prosecutor has warned.

Kevin Zervos, the director of public prosecutions, writes in a soon-to-be-released report that law enforcement agencies should not carry the responsibility for prosecuting because this may conflict with their roles as investigators and regulators.

Leaving prosecutions to the Department of Justice would also act as a necessary check on their powers, he adds.

Zervos, who steps down next month, revealed tension has arisen between the SFC and the prosecutions division of the Department of Justice.

The SFC's right to prosecute on its own - which applies in certain market-related cases before magistrates - should be transferred to the prosecution service, he argues. "I note that the Securities and Futures Commission is a regulatory and investigatory agency with extensive coercive powers.

"But it also has prosecutorial responsibility and in this regard there has been tension between us," he says in the report. Zervos contrasts the SFC's position with that of the Independent Commission Against Corruption.

The ICAC is not responsible for prosecuting and its investigations are supervised by the Operation Review Committee (ORC), comprising members of the community.

"Unlike the ICAC, there appears with the SFC to be a lack of appropriate internal regulation and policing as well as effective oversight as seen with the ORC.

"There is cause for concern and it would be preferable if the SFC did not have any prosecutorial responsibility, which would be better placed with an independent prosecution service," Zervos adds.

The remarks are made in the Prosecutions Hong Kong report 2012, which has been seen by the Post and will be released next week. Zervos says in the report that an independent prosecution service is vital for upholding "the just rule of law".

He says: "I am firmly of the view that under our criminal justice system, it is imperative to keep the prosecutorial responsibility separate from regulatory or investigatory agencies, especially when they also possess coercive powers of investigation.

"To give a law enforcement agency the responsibility for prosecution is a matter of some concern. It could result in such agency becoming judge of its own cause and this should be avoided."

An SFC spokesman said it could not comment, as the report had not yet been published.

Responding to a question in the Legislative Council in May, Secretary for Justice Rimsky Yuen Kwok-keung said there had been high-level communications between the Department of Justice and the SFC in respect of the SFC's co-operation and use of its powers in criminal cases.

He said the Department of Justice had stressed to the SFC the importance of exercising its powers in a "proper, fair and responsible way", of being full and frank with other agencies and of the need for checks to ensure it is even-handed.