Decisions on whether or not to prosecute in criminal cases are rarely controversial. But the process lies at the heart of our criminal justice system and when controversy does arise, it can severely damage public confidence. The question of whether Hong Kong's top prosecutor should make such decisions independently is, therefore, one which should be taken seriously.
The case for an independent Director of Public Prosecutions was put by former DPP Grenville Cross in a recent article in this newspaper, prompting much public debate. In this respect Hong Kong is out of step with comparable jurisdictions which have defined the independence of public prosecutors from political masters. The Basic Law provides that prosecutions should be controlled by the Department of Justice, which is headed by a political appointee who reports to the chief executive.
The question of the DPP's independence has been taken up by a Legislative Council panel. Cross was DPP for 12 years until 2009. Interestingly, much controversy arose on his watch over decisions not to prosecute. Examples include former publishing tycoon Sally Aw Sian over alleged circulation fraud, former financial secretary Antony Leung Kam-chung for buying a car before he announced a new vehicle tax, and bodyguards of Grace Mugabe, wife of Zimbabwe's president, over alleged assault on journalists.
Cross points to two current cases where problems of perception could arise. One involves an alleged assault on the chief executive by an activist, and the other the alleged existence of illegal structures on the properties of at least two fellow ministers of the Secretary for Justice, Wong Yan-lung. There is no reason to think decisions on whether to prosecute will not be taken on proper grounds. But Cross argues, nonetheless, that it is ideal to separate the justice minister from the process of prosecution decision making.
This makes sense. The Department of Justice argues that Article 63 of the Basic Law, which says the department shall control criminal prosecutions free from any interference, does not permit an independent DPP as such. But that is not the only way of interpreting the provision. Senior Counsel Alan Hoo, for example, argued that a constitutional convention could be established that leaves decisions on whether or not to prosecute solely to the DPP. This would serve to strengthen the independence and freedom from interference of the process envisaged in the Basic Law. It would be similar to the arrangement adopted in England and Wales. If the law is to be seen to be applied equally without fear or favour, the independence of the prosecution process can be just as important as an independent judiciary.