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Speech by the Director of Public Prosecutions

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Following is the speech by the Director of Public Prosecutions, Mr. Grenville Cross, SC at a forum organised by the Hong Kong Economic and Trade Office in Sydney today (September 10):

It gives me great pleasure to be here today. I welcome this opportunity to share with you my thoughts on how things have progressed in the Hong Kong Special Administrative Region (Hong Kong) in the four years or so of its existence.

The reason I am in Sydney this month is to chair the Asia/Pacific Regional Forum of the International Association of Prosecutors ('IAP'). Hong Kong participates in many international organisations, including the World Trade Organisation, the Asian Development Bank, the World Health Organisation, and the World Intellectual Property Organisation. And on 1 January 2001, the Prosecutions Division of the Hong Kong Department of Justice, which I head, took up its place as the 75th organisational member of the IAP. The DPP of New South Wales, Mr. Nicholas Cowdery QC, is, of course, the distinguished President of the IAP, and he has just organised and hosted the highly successful 6th Annual Conference of the IAP. The conference focused on the role of the prosecutor in the new millennium, and it means much to us that Hong Kong was invited to join the IAP. This is an organisation which is committed to promoting the highest of prosecutorial standards, as well as to pursuing the closest of cooperation between prosecutors. In this area, as in so many others, Hong Kong has much to contribute.

Since my arrival in Sydney, I have been struck by the level of interest which people have in Hong Kong, and also by the extent of the goodwill. But I am not surprised. The links between Hong Kong and Australia go back a long way. Now, post 1997, I would say that, if anything, the links are more vigorous and vital than ever.

There are about 45,000 Australians living in Hong Kong. About 350 Australian companies are based there, while a further 1,000 Australian companies have representative offices. In 2000, Hong Kong was Australia's 20th largest merchandise import market, her 9th largest export market, and her 6th largest market for services. Australia and Hong Kong work closely together in multilateral fora, including the World Trade Organisation (WTO) and Asia Pacific Economic Cooperation (APEC). Memoranda of understanding have been signed between the two places on such subjects as Customs cooperation and cooperation in information technology. We also have in place arrangements for mutual legal assistance in criminal matters and for the surrender of fugitive offenders.

Speaking as a lawyer, I can say that we in Hong Kong are indebted to Australia for having contributed to the success of our new legal arrangements. In 1997, Hong Kong, like Australia previously, severed the link with the Judicial Committee of the Privy Council, and established its own Court of Final Appeal (CFA) as the ultimate appellate court. On 1 July 1997, the power of final adjudication became vested in Hong Kong. Henceforth, the CFA is no longer bound by the Privy Council, and it has become the ultimate arbiter of the common law of Hong Kong.

Hong Kong remains an autonomous common law jurisdiction and, in a unique arrangement, foreign judges from other common law jurisdictions sit on the CFA when it hears appeals. That Australia has made available to the CFA three of its most eminent judges, Sir Anthony Mason, Sir Darryl Dawson and Sir Gerard Brennan, is most welcome. The involvement of judges of such stature at the apex of our judicial system has, by common consent, enriched greatly the judgments of the CFA, and also served to promote our links with the rest of the common law world. That there have been, in the four years since 1 July 1997, 232 CFA and CFA-related criminal cases, as opposed to the 56 criminal cases which went to the Privy Council in the four years immediately prior to 1997, reflects the confidence which the people of Hong Kong have in their new judicial arrangements.

It is now four years since the HKSAR was established on 1 July 1997. On that historic date this small, vibrant and densely populated region reverted from British to Chinese sovereignty under the principle of One Country, Two Systems. Hong Kong was promised a high degree of autonomy. The whole emphasis was on Hong Kong people ruling Hong Kong. The notion that two distinct systems could co-exist within one country was undoubtedly a bold one. The world has watched our progress with a keen and a benevolent interest.

The Basic Law of the HKSAR took effect on 1 July 1997, and it is now Hong Kong's mini-constitution. This remarkable document guarantees the rights, freedoms and duties of the people of Hong Kong, and, thereby, their way of life. Not only does it provide for such matters as the continuity of the common law, the right to a fair trial, and the exercise of independent judicial power, but it stipulates that the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) shall remain in force and be implemented through our laws. So it is that Hong Kong continues to report to the UN treaty monitoring bodies in respect of the six major treaties on human rights which apply to her. It is within this clearly defined constitutional framework that Hong Kong has been able to maintain her own way of doing things and to exercise her high degree of autonomy.

As a prosecutor, I am sometimes asked if things have changed much in my office since 1997. I am able to reply 'no'. There has been continuity. We remain plugged firmly into the prosecutorial traditions of the common law world. Basic prosecutorial criteria remain intact. It is profoundly reassuring as well that, for the first in Hong Kong's history, the principle that the prosecuting authority controls prosecutions free from any interference is enshrined in our constitution, the Basic Law. In the area of prosecutorial responsibility, I can say without reservation that there has indeed been a 'through-train'.

When people ask how things have changed in Hong Kong since 1997, I am able to say that the rule of law has continued to flourish, that basic freedoms remain intact, and that the fundamental principles which are the requirements of civil society are secure. Hong Kong remains today what it has been for many years : an international city; a major financial centre; a bridge between the West and the Mainland; an entrepreneurial city in which there is a place for all of those committed to her well-being and prosperity. Hong Kong is rightly recognised as the place where East and West blend to form a truly world-class international city. It is a gateway not only to the mainland of China but, equally important, a gateway to the rest of Asia.

When the last Governor of Hong Kong, Chris Patten, now the Commissioner for External Affairs in the European Commission, visited Hong Kong recently, he had this to say : 'Hong Kong people have been running Hong Kong, and despite the problems doing it remarkably well. And what the rest of the world notices most clearly is the unshakable commitment of the people of Hong Kong to the values, principles and qualities which have made this city a beacon of stability, prosperity and decency. You in Hong Kong have been ever vigilant in the interests of your quality of life. And we salute you for that'.

Rightly has it been said that if Hong Kong has a defining ideology it is the rule of law. Government decisions are subject to the law, and an independent judiciary resolves disputes between parties. Since Hong Kong is an international financial centre, it is important that people should understand that it is a safe city in which to do business. Hong Kong is a place where corruption is not tolerated, where investment is safe, where the financial system is properly regulated, and where insider dealing is not countenanced. Hong Kong is also a law-abiding city, with a secure environment in terms of law and order.

I believe it is no exaggeration to say that the collective commitment of the Government and the people of Hong Kong is to upholding the rule of law. Hong Kong prides itself upon being a principled and tolerant society. This can be seen in the vigilance of the media, the respect for religious freedom, the free expression of divers opinions and the varied political views of those who stand for public office. In the four years since the handover 8,400 public meetings and processions were held, and most of these were conducted lawfully and peacefully. All of these, surely, are the indicia of a free society.

The Falun Gong movement, though banned in the Chinese mainland, is allowed to continue to operate freely in Hong Kong, and to enjoy freedom of expression and assembly so long as it abides by the law. That the Central People's Government has not sought to intervene shows not only its adherence to One Country, Two Systems, but also that it understands well the system in Hong Kong, and that it has confidence in Hong Kong people ruling Hong Kong. As long as Falun Gong abides by the law in Hong Kong, the Hong Kong Government will not intervene in its activities, notwithstanding that it is proscribed in the Chinese mainland.

Just last month, the US State Department, in its report to Congress on Hong Kong, had this to say : 'Hong Kong under Chinese sovereignty has remained one of the freest cities in Asia with the Hong Kong Government committed to advancing Hong Kong's distinct way of life'. And any visitor to Hong Kong can confirm that message. The success of Hong Kong is not accidental. I agree with those who say that it is the fusion of the formidable talents of the Hong Kong people with the attributes of a free society which is perhaps the secret of that success, and which is central to its view of itself as Asia's World City. Hong Kong people have great self-reliance. They come from all backgrounds, from all over China, from all over the region, from all over the world. The rich mix of talent and ideas and experience is unique, and is very much a part of the distinctive Hong Kong Brand.

Although Hong Kong, like other parts of Asia, is still undergoing turbulence as a result of the financial crisis, our economy continues to grow, and we are pulling through precisely because of the resolve and skills, divers as they are, of all our citizens. I may say as well that as we have a 15% maximum salaries tax and a 16% profit tax, and as we have no value added tax or sales tax, no capital gains tax and no withholding tax on dividends and interest, we have in place a fiscal regime which provides the best possible climate for hard work and business investment. Not for nothing has the Heritage Foundation rated Hong Kong as the world's freest economy for seven years in a row. Our vision is of a Hong Kong which plays the same role in Asia as London plays for Europe and New York plays for North and South America.

Looking ahead, Hong Kong is awaiting with eagerness China's accession to the WTO. Hong Kong was a founding member of the WTO, and her separate membership status reflects the autonomy in the conduct of her external commercial relations which the Basic Law guarantees. Once China's accession is a reality, the level of China's external trade and the amount of foreign direct investment into the Mainland are both forecast to double over the next decade. This growth in trade will add significant traffic to our airport and our container port, which are already the busiest in the world. This growth in investment will enhance our role as a business centre. Already of the US$56 billion which were raised in the capital market last year in Hong Kong, three-quarters were for companies from the Mainland. And with China's accession to the WTO, Hong Kong's professional and service industries will take full advantage of the opening of different sectors of the Mainland economy. There will be new opportunities, as well, for our legal services.

Few will dispute that Hong Kong is the best base for those businesses that wish to take advantage of the opportunities opening up in China. Hong Kong law firms are best placed to provide legal services in the developing China market. The relaxation of the rules relating to the delivery of legal services in China will provide Hong Kong lawyers with a unique opportunity to expand their legal services and to contribute towards the development of the Mainland and the globalisation of its economy. Proposals are in hand to enable Hong Kong law firms to open multiple offices in the Mainland, and for Hong Kong lawyers to register in the Mainland as Hong Kong law lawyers, and to be employed by Mainland law firms to practise Hong Kong law. So, I would say that for geographic, linguistic and cultural reasons there are vast opportunities opening up for those lawyers in Hong Kong who wish to participate in the modernisation and development of Mainland China. It has also now been announced that people from Hong Kong will be allowed to sit China's National Lawyers Examination, so as to qualify in their own right as Mainland lawyers. Hong Kong people are not afraid of change or risk, and I feel sure that they will turn the challenges and the opportunities ahead to their best advantage.

China's determination to adapt herself and to create a new legal order for foreign investors is there for all to see. The Constitution of the PRC has recently been amended to enshrine the principle of 'rule of law', and to express the determination to govern the country 'according to law'. Of particular interest to investors is the constitutional amendment which expressly protects 'the legitimate rights and interests of ... private business'.

I would say that there is a keen appreciation in the Mainland that if its economic development is to succeed, the system must be underpinned by the rule of law. Hong Kong has much to contribute to this process of law reform, which was initiated by Deng Xiaoping, who once observed that 'we need to build a modern legal system for China'. I am sure as well that now that China has ratified the ICESCR, and signed the ICCPR, it will benefit from Hong Kong's experience in reporting to the UN monitoring bodies in relation to those two treaties, and from Hong Kong's experience in dealing with the relevant United Nations bodies.

In conclusion, I would leave you with the message that One Country, Two Systems has got off to a good start. The Central People's Government, the HKSAR Government and the Hong Kong people have all diligently applied themselves to the challenge of making a success of this unprecedented concept. It has not always been easy. But as the British Foreign Office Minister, John Battle, observed in March this year, after he visited Hong Kong, 'One Country, Two Systems is a new template for political, economic and social relationships that other parts of the world would do well to watch'. Of course, this a new concept, and of course we have had some problems. Like most places, we have our share of alarmists who seek to exaggerate every difficulty that comes along. It is precisely because the reunification has gone so well, despite the warnings of the soothsayers, that some people feel cheated.

The reality is that since 1997 continuity has been achieved in the substance and operation of our procedures in accordance with the high degree of autonomy we were promised. That the One Country, Two Systems concept has succeeded so well is undoubtedly a tribute to the vision and resolve of people of goodwill on both sides of the border. It is also attributable to the continuing support and understanding which we receive from our many friends internationally. I believe we have achieved much in a short period of time. But do not just take it from me. Visit us in Hong Kong. Come and see for yourselves.

End/Monday, September 10, 2001

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