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Hong Kong justice chief should give up prosecuting power, top lawyer says

Cheng Huan SC says role has become too political in nature and duty should be given to director of public prosecutions

PUBLISHED : Wednesday, 10 January, 2018, 10:02am
UPDATED : Wednesday, 10 January, 2018, 10:37am

There is no better time than now for the city’s politically appointed justice minister to relinquish her prosecuting power, a move that will help preserve the rule of law, a prominent criminal barrister said on Tuesday.

Cheng Huan SC reignited the call echoed previously by other legal heavyweights, who feared that the city’s secretary for justice, appointed by the government, had become too sensitive a role to handle criminal matters amid an increasingly divided political landscape.

Their argument is that the prosecuting power should lie with the prosecutor-in-chief, the director of public prosecutions (DPP).

“It’s the best time,” Cheng said, noting that the justice department had just had a reshuffle to appoint Teresa Cheng Yeut-wah SC as the new secretary for justice and David Leung Cheuk-yin SC as the prosecution chief.

In a rare and wide-ranging interview with the Post, senior counsel Cheng also shared his personal take on Hong Kong’s affairs, arguing how a “confrontational” approach to China, as adopted by some in recent years, might take a toll on the city’s ongoing development.

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“We will lose our freedom, our way of life and our independence of judiciary and rule of law faster than anything if we are confrontational,” he said.

Cheng, considered one of the four top criminal barristers in town, spoke to the Post at his chambers in Central.

The barrister said he had seen no evidence that Rimsky Yuen Kwok-keung, who stepped down as secretary for justice last month, had let politics get in the way when making decisions. “But obviously, there might be some perception that he interfered,” Cheng acknowledged.

In past years, he noted, criticisms had arisen out of the decisions to prosecute those who took part in the Occupy protests of 2014, in the name of fighting for greater democracy.

A more recent case in point was that of three students activists, including the protest’s poster boy Joshua Wong, who were jailed in August by the appeal court at the prosecutors’ request, despite initially being handed non-custodial sentences by a lower court.

Do you think that China would allow a common law system which draws its inspiration from Canada, New Zealand and from the court of human rights in Brussels?
Cheng Huan SC

The call for a more independent decision maker as prosecutor was part of a Legislative Council discussion in 2011, and had been long been advocated by former director of public prosecutions Grenville Cross.Lawmaker for the legal functional constituency Dennis Kwok had told the Post earlier that he would like to bring the issue up again in Legco.

Revisiting the idea, Cheng said: “It is something I feel strongly about, that it will prevent such criticisms.”

But he said it would take courage for the new secretary for justice to do so, adding that the Bar Association should help advocate for the change in a bid to promote the rule of law.

Born in Malaysia, the barrister read law at Cambridge University in the UK, and worked as an assistant editor at the now defunct Far Eastern Economic Review and as a China correspondent for The Guardian newspaper.

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He was called to the Hong Kong bar in 1976 and took silk as Queen’s Counsel 12 years later. Cheng, who is known for his pro-China stance, has a column in one of the city’s Chinese-language dailies.

Last year, Cheng represented one of the seven police officers convicted of assaulting activist Ken Tsang Kin-chiu during the Occupy protests. He has also represented celebrity Nicolas Tse Ting-fung.

On other affairs, Cheng said he noted some “confrontational” views perpetuated by some of the city’s politicians, while calling the pro-independence movement “a problem”.

The city was promised autonomy for 50 years under the Basic Law after the former British colony was handed back to China in 1997. Uncertainties await after 2047, including what will happen to the city’s common law legal system inherited from the UK, he said.

“Do you think that China would allow a common law system which draws its inspiration from Canada, New Zealand and from the court of human rights in Brussels?” he asked rhetorically.

“One of the important issues is how we amalgamate the two systems,” he said, referring to city’s common law and the mainland’s civil law systems.

He said he did not have the answer, but he suggested society should think about the way forward.

He said if some were not as confrontational, the city would stand a higher chance of maintaining its way of life for longer, and that China would be more accommodating, even if there were changes to be made after 2047.

But he warned: “If you start talking about the rise of localism and an independence movement, they can change the Basic Law in one stroke and take back Hong Kong.”