LETTER OF THE LAW

Time to get serious on prosecutorial independence in Hong Kong

Giving a political appointee authority over prosecutions has shaken public confidence in the system

PUBLISHED : Monday, 01 August, 2016, 4:16pm
UPDATED : Monday, 01 August, 2016, 10:19pm

At the start of Prosecution Week 2016 in June, the director of public prosecutions, Keith Yeung Ka-hung, complained that, in “politically sensitive cases”, his prosecutors had “on growing occasions been subject to groundless, malicious and unfair personal abuse, from certain members of the public”.

Although everyone sympathises with the difficulties of frontline prosecutors, the solution lies in the hands of Yeung’s boss, the secretary for justice, Rimsky Yuen Kwok-keung, who must now rectify the situation.

While we have a prosecution service which is headed not by an independent prosecutor, as elsewhere in the common law world, but by a government minister, the problems Yeung described will continue, and probably worsen.

Although Yuen’s predecessor, Wong Yan-lung, myopically blocked progress towards an independent DPP in 2011, citing Basic Law obstacles, which the Hong Kong Basic Law Institute clinically debunked, Yeung’s concerns indicate that the department of justice must now get serious about prosecutorial reform.

The high levels of discontent over, for example, political reform, social injustice and inadequate housing, are not going to go away, and many people, in frustration, will undoubtedly resort again to street politics, resulting in more clashes with police and further prosecutions.

Whereas, as Yeung rightly noted, Hong Kong has an independent prosecution system, many people do not believe this, and they will certainly not change their minds as long as a political appointee exercises ultimate authority over prosecutions, which is understandable.

Good prosecution policy is not just about charging the right people with appropriate charges, but also about promoting public confidence in the legal system

Although Yuen belonged to the three-person constitutional task force which promoted the doomed electoral reform package in 2014, he was, nonetheless, in the aftermath of Occupy Central, the official with overall responsibility for deciding which of the people arrested for protesting against his proposals should be prosecuted, and the conflict of interest was stark.

Of course, insiders know that politics plays no part in prosecution decisions, just as they understand that the department of justice is manned by people of integrity, but what about the man in the street, let alone the suspect in the dock? Good prosecution policy is not just about charging the right people with appropriate charges, but also about promoting public confidence in the legal system, which means ensuring that justice is seen to be done.

Whilst people can see that the judiciary is headed by an independent chief justice, separate from government, when they look at the prosecution service they see the exact opposite. It is little wonder, therefore, that public confidence in prosecutors is not always as great as it should be, or that there are fears of political prosecutions.

Although Article 63 of the Basic Law does not specify which particular individual should discharge the department of justice’s mandate to “control criminal prosecutions, free from any interference”, the obvious candidate is the DPP, a neutral figure without political responsibilities. The Hong Kong Basic Law Institute has explained that, whereas this arrangement is constitutional, any involvement by the justice secretary in prosecution decisions is not, as it breaches Article 63’s “no interference” imperative.

If, by the time of Prosecution Week 2017, Yuen has handed over his prosecution powers to an independent chief prosecutor, the DPP may well have less cause for complaint next time round.

Grenville Cross SC is a criminal justice analyst