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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.

 

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This article is now closed to comments

22gt7
Here, technicality should never be a factor to be considered. Many prosecution cases involve certain degree of technicality in the issue. It is definitely not logical to consider technicality as a justification for not transferring the prosecution to DJ. ICAC does the same then why SFC should not. I just wonder why this issue is brought up so lately until Mr. Zervos is going to step down. Now that most Hongkongers do not trust HK SAR government, can we trust DJ who is under control of the government or SFC who is seemingly more independent? Or DJ is more independent than SFC, who knows? When trust is lost, HK society is in a chaotic state (who to trust - we formerly trust the Police and ICAC)! The issue is worthy of more discussion.
dynamco
actually he is totally right
read up on the Principles of Natural Justice-only been around since Roman times
"nemo judex in parte sua" (no person may judge their own case) applies
You cannot be the investigator, prosecutor, judge, jury & executioner which seems to be the current scenario
Simply , BIAS
investigators and decision-makers must act without bias in all procedures connected with the making of a decision.
A decision-maker must be impartial & must make a decision based on a balanced & considered assessment of the information & evidence before him/her without favouring one party over another.
Even where no actual bias exists, investigators & decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.
So SFC should not legally investigate, prosecute, hear arguments, judge, fine or otherwise deal with the case
Investigate by all means but let the relevant authority prosecute based on the basis of evidence provided. Failure to do so opens the backdoor to guilty parties on appeal.
Do the HK Police, Customs, Immigration etc prosecute their own cases in their own hearings ?
get real
en.wikipedia.org/wiki/Natural_justice
johnyuan
SFC should give up its prosecution power to Justice Department. Any delay in doing so is unjustifiable and renders Hong Kong to a place of no just rule of law. To accept a policeman metering punishment when a thief is caught is unthinkable.
dynamco
"this is no different than the police handing out fines for illegal parking"
ahem, totally misguided + incorrect thinking
a Fixed Penalty ticket is an allegation of a contravention of civil law to the owner of the vehicle The owner must admit or deny liability for the parking contravention no matter who the driver was
The system was designed to remove the criminality from parking offences
Slightly different from insider trading involving million of dollars
'nemo judex in parte sua'
We have Courts of Law
SFC should use them to decide on their investigations and evidence
rizpah
There should be no problem in the Department of Justice controlling SFC prosecutions. Article 63 Basic Law provides that 'The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference. ' That is not something to be desired; it is a constitutional requirement.
If the DPP feels that SFC prosecutions are not conducted to his satisfaction, perhaps he is not flexing his constitutional muscle.
johnyuan
I wrote according to Zervos. I think he should follow up and response to your comment.
As to technical limitation in restricting JD's role is not a good argument though. It can always retain SFC for consultation. I think it is actually quite normal and practiceable. These days there are all sorts of crime coming from technically rooted.
impala
It seems like a largely technical decision (and one with the usual turf politics apart) who does the prosecuting. Either the SFC does it itself, or they hand over the file the Justice Department.

Mr Zervos might be right that it is slightly more proper to have the JD do it, but won't something be lost in terms of expertise? Do his prosecutors have the technical financial know-how to fully understand what they are prosecuting? And if we take the SFC's ability to prosecute away, won't the SFC just be implied to pursue its cases through the civil route?

Anyway, it seems a largely academic and power-politics decisions rather than that it would make any difference in terms of prosecution results.
impala
That is not an apt comparison. And I don't understand why Mr Zervos implies the same thing, as he surely knows better.

When the SFC prosecutes, it does not control the verdict, nor the punishment. It still has to go before a judge (and sometimes a jury) to argue its case. It is then the judge/jury deciding on the verdict and, if applicable, the punishment.

The SFC does also have direct enforcement powers, and can hand out fines and some other punishments (like suspending licenses), but all of these can be challenged in court by the receiving party, and this is no different than the police handing out fines for illegal parking, littering or other minor offences.

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