• Sun
  • Dec 21, 2014
  • Updated: 4:05pm
NewsHong Kong

Prosecution guidelines still a letdown, says veteran barrister

Veteran barrister says prosecution code is unclear on which court to try cases in and neglects importance of the jury system

PUBLISHED : Saturday, 26 April, 2014, 5:37am
UPDATED : Saturday, 26 April, 2014, 10:55pm

Barristers have described as disappointing an updated code for prosecutors that they say still places too little emphasis on the role of jury trials.

The Department of Justice guidelines remain obscure on when prosecutors should submit a case to the District Court, which does not have jury trials, or the High Court, which does, the Bar Association says.

"The association is not satisfied with the present code; [it] repeats many of the points in the previous guideline," veteran barrister Michael Blanchflower SC, representing the professional body, told a Legislative Council panel meeting.

Speaking to the South China Morning Post later, he said there ought to be examples to illustrate which court to go to.

The prosecution code, as updated last year, added two new considerations for prosecutors in deciding the venue of a trial: whether the defendant held "high public status, responsibility or trust", and whether issues for determination "require the application of community standards and/or values", on top of existing principles including expected sentence lengths.

The department said this was "a substantial improvement".

But Blanchflower said the change meant little as prosecutors were still left on their own to make decisions on which court to try a case in, without much reference to actual cases.

"One does shake one's head sometimes, wondering why some cases are in the District Court," he said.

For example, legal circles were shocked to see a socially significant case about a well-known tycoon's money-laundering trial held in the District Court, Blanchflower said.

The choice of courts predetermines the maximum possible sentence. The High Court has no limit beyond those prescribed by law, but the District Court limit is seven years.

Prosecutors, who have the sole power to decide which court a case goes to, do not always prefer the more powerful court. Most indictable offences - those too serious for a magistrate's court - go to the District Court.

But judiciary statistics suggest that the criminal caseload may be shifting away from the once-overwhelmed District Court. In 2011, it handled 71 per cent of all indictable offences; that dropped to 65 per cent and then 57 per cent in the following years.

But prosecutors who spoke to the Post on condition of anonymity said there were inconveniences in setting up trials in the High Court, and that the jury system was one of them.

Blanchflower said prosecutors sometimes thought juries were more likely to acquit a defendant. High Court trials of first-instance cases also required additional hearings and specific files for jurors.

At the panel meeting, Director of Public Prosecutions Keith Yeung Ka-hung said there was no need to write any more into the guidelines about jury trials. The difference in the two courts' conviction rates was negligible, both about 70 per cent, he said.

Yeung said Hong Kong, unlike some common law jurisdictions, did not give defendants the right to choose the mode of trial.

The ideal situation, Blanchflower argued, would be for the District Court to incorporate jury trials, although he admitted it was unlikely to happen in the foreseeable future.

Blanchflower stressed the association's 2010 stance that the jury system should not fall into disuse. "It's the guardian of liberty, guarantees sound administration of justice and protects individuals against oppressive laws," he said. "If we're going to preserve the common law come 2047 ... then jury trials are part of that common law system."


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Senior Counsel Blanchflower has mooted the prospect of the loss of the common law in 2047. There is a real prospect of that happening if nothing changes in Beijing and another powerful driver for that is the crumbling of English standards in the courts and the profession. With many judgments now published in Chinese (by judges uncomfortable using English) and unintelligible to many of our most experienced and knowledgeable common law practitioners (few are translated by the Judiciary Administration), the link to the common law world becomes weaker by the day. Thus we are developing parallel legal systems. For all the talk about our precious rule of law, these changes are building organically with no leadership or direction from our top judges. Hong Kong's legal system in 2047 is likely to look very different to the one we had in 1997 and possibly very much worse.
Another issue quite frankly is the quality of the District Court judges dealing with these significant commercial cases. It would be interesting to see the statistics of those who had convictions overturned by the Court of Appeal and even the Court of Final Appeal.
You make some excellent points ianson: very well put indeed.


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