Following is the statement by the Director of Public Prosecutions, Mr Grenville Cross, SC, at the media session to release the Yearly Review of the Prosecutions Division 2003 today (April 7):
The year 2003 was a significant one for the Prosecutions Division. It was a period of reform. A series of comprehensive criminal justice initiatives was instituted. A policy of transparency was pursued to enable the public to better understand our decisions. We worked closely with prosecutors from elsewhere in order to combat transnational crime more effectively. Cooperation with investigative agencies was developed in the interests of better law enforcement. Great importance was placed upon safeguarding the interests of victims of crime and witnesses. In all they did, prosecutors worked to a progressive and a defined agenda.
The Strategic Plan 2002-2007
The Strategic Plan of the Prosecutions Division 2002-2007 was introduced at the end of 2002. In its first full year of operation in 2003, the Strategic Plan gave the Division the sense of purpose it required at a time of challenge and of change. The mission of the Division throughout 2003 was to play a positive role in promoting and developing the system of criminal justice in Hong Kong, in accordance with the Strategic Plan. Key strategies included :
* The conduct of cases to a high standard, in a fair and just manner;
* The retention, development and motivation of high quality staff;
* The provision of appropriate levels of assistance to law enforcement agencies;
* The effective participation in overall law enforcement at local and international levels, and,
* The monitoring of performance in all areas, with a focus on quality, quantity, timeliness and value for money.
Public Prosecutions : Prosecution Policy
Prosecutors are gatekeepers. They ensure that only legitimate cases are prosecuted. Prosecution policy dictates that a person should not be prosecuted unless the evidence against him is sufficient. That policy was scrupulously applied in 2003. Prosecutors acted throughout the year on the basis of hard evidence and with a keen appreciation of the consequences of prosecution. Suspicion, however grave, was not a basis for the institution of proceedings.
We recognised in 2003 that community engagement by prosecutors was vital. Prosecution policy was explained and rationalised. We believe that transparency promotes confidence and understanding. The less secrecy there is over the decision-making process the better. An open prosecution service is one which is secure and trusted by the public upon whose behalf it acts.
In 2003, prosecutors pursued 210,055 prosecutions, and gave 16,820 legal advices. That most of these were accepted without reservation by the community and attracted no adverse comment was a source of satisfaction. At the same time we recognised that upholding the rule of law was not about winning popularity contests, but about doing what was right.
Criminal Justice Initiatives
In 2003, the Division pursued a reformist agenda. Practice and procedure were reviewed. New approaches were examined. Fresh thinking was injected. This was achieved through three committees which were established to improve the standards of criminal justice.
The first committee made recommendations to promote the interests of victims of crime and witnesses. These included :
* First, improved guidance for witnesses at court;
* Second, better arrangements for victims in sexual cases;
* Third, greater support for civilian witnesses at court from trained professionals;
* Fourth, improved methods by which victims of crime can be compensated;
* Fifth, a limited system of restorative justice as an alternative to prosecution for young offenders aged 10 to 17, whereby victims and offenders can meet with the assistance of a trained mediator as part of a healing process;
* Sixth, a statement for the guidance of prosecutors on the treatment of victims and witnesses.
Today, we announce the public release of The Statement on the Treatment of Victims and Witnesses. This Statement indicates how, as prosecutors, we consider that victims and witnesses should be treated, and the means by which prosecutors will safeguard their interests. The Statement is a road map for prosecutors. It places victims and witnesses at the heart of our calculations in the course of decision-making, in the course of criminal proceedings, and after trials or appeals are over. The Statement is a practical document designed to provide those involved in the criminal process with the best possible deal. The Statement is a pact between the prosecutors and those people who are the victims of crime and the witnesses to crime. We commend it to the community.
The second committee examined if more was required of prosecutors to take steps to avoid miscarriages of justice. It recommended :
* First, guidelines for expert witnesses which stress the importance of impartiality, honesty and the need to disclose material which may assist the other party to the proceedings;
* Second, closer liaison between prosecutors and frontline enforcement personnel to foster a better understanding of potential miscarriages of justice and the means by which these can be avoided;
* Third, ad hoc working groups to examine lessons to be learned from cases involving miscarriages of justice;
* Fourth, greater caution in the use of prison informants who may have purposes of their own to serve in making allegations against others in custody;
* Fifth, retention of case materials for long periods after cases of significance have concluded to facilitate scrutiny of convictions in light of forensic advances.
The third committee prepared a draft Code of Conduct for expert witnesses. This code defined the role of the expert in terms not of partisanship, but of impartial and honest assistance to courts. The standards and duties of the expert witnesses were defined with precision.
The recommendations of the three committees are being considered, and consultation is under way. We believe that these initiatives will contribute to an improved legal system for the people of Hong Kong.
International Association of Prosecutors
Throughout 2003, the Division took full advantage of its membership of the International Association of Prosecutors (IAP), which it joined in 2001 as an organisational member. We recognised that co-operation amongst prosecutors throughout the world was vital to the effective combat of transnational crime. Prosecutors worked with others in the IAP on the combat of terrorism, technology crime, corruption and over the treatment of young offenders. Liaison with prosecutors from elsewhere was actively pursued in all areas.
We are pleased to announce today that the Division has been invited to host the 2nd Asia and Pacific Regional Conference of the International Association of Prosecutors. This is a recognition of the standing enjoyed by our prosecution service at the international level, and we have accepted the invitation of the IAP. The Regional Conference will be held in Hong Kong from 25 to 27 November 2004. The theme will be "Dealing with drugs offenders".
Contacts with the Mainland and Macau
Throughout 2003, the Division developed its association with prosecutors and legal officials in the Mainland. Regular liaison was pursued with our counterparts in Macau. We briefed eight visiting delegations from the Mainland and Macau on the operation of our criminal justice system, and ourselves made seven official visits to other parts of China.
Apart from exchanging ideas and publications, we contributed to specific training modules, as well as generally to initiatives to reform Mainland criminal law and procedure. In the process, greater understanding of the common law system was promoted, as well as a better appreciation of the operation of public prosecutions in Hong Kong. Such engagement, we believe, has contributed to a better understanding of different systems and a deeper awareness of mutual problems in the area of law enforcement. All of this is good for the successful operation of the one country, two systems concept.
Hong Kong since 9/11 has contributed at all levels to the combat of terrorism. Law enforcers are empowered to freeze terrorist funds, subject to court oversight. Financial institutions and businesses are required to report transactions that might be terrorist-linked. Anti-terrorism legislation has brought Hong Kong into compliance with UNSCR 1373 and the special recommendations of the Financial Action Task Force (FATF).
The Prosecution Policy Co-ordinator on Anti-Terrorism was active throughout 2003 in providing advice, in-house expertise and liaison. She advised on legislation to facilitate the seizure of non-fund property linked to terrorism, as well as to implement the Bombings Convention and the Maritime Safety Convention. Advice was provided on the report for the Asia/Pacific Group on anti-terrorism measures in Hong Kong. The Policy Co-ordinator in mid-year briefed prosecutors from other jurisdictions upon measures taken to counter terrorism, as well as upon the need for heightened levels of co-operation. In September, the Policy Co-ordinator brought to a successful conclusion the first prosecution to be brought under the United Nations (Anti-Terrorism Measures) Ordinance, which involved a bomb threat at the Grand Hyatt Hotel.
Through the International Association of Prosecutors, our prosecutors, in August, in Washington, DC, advanced a set of proposals to promote common objectives in the combat of terrorism. These emphasised the importance of prompt exchanges of information, pooling of intelligence, laws with extra-territorial reach, agreement as to conduct to be criminalised, pro-active approaches to mutual legal assistance, elimination of safe havens, issuing of official lists of terrorist suspects, protection of human rights and the aggressive and imaginative development of all legal means to bring offenders to justice. This agenda was well received by our counterparts.
Following the enactment in 2003 of the Prevention of Child Pornography Ordinance, we enhanced our capacity to provide appropriate advice to others in government, to liaise with prosecutors elsewhere, and to prosecute such cases in the courts. We appointed a Prosecution Policy Co-ordinator on Obscene Articles and Child Pornography to provide the required levels of expertise at the advisory stage and in court.
The Policy Co-ordinator appeared before the Obscene Articles Tribunal (OAT) as required when its rulings were challenged. In 2003, TELA referred 1,743 articles to the OAT for classification, and 1,151 articles were classified as obscene and 538 as indecent. These positive classifications led in turn to 186 prosecutions for offences under the Control of Obscene and Indecent Articles Ordinance.
The Prevention of Child Pornography Ordinance gives effect to the United Nations Convention on the Rights of the Child. As prosecutors we play a role in ensuring that those who make, produce, publish or advertise child pornography are prosecuted and, if convicted, sentenced appropriately. This is an area in which prosecutors will show no leniency. Those who seek to profit from the abuse of the most vulnerable must expect to face the full rigors of the law.
Key Areas of Prosecution Responsibility
The Division's teams of specialist prosecutors carried a considerable and challenging workload in 2003. These included :
(1) Corruption : In 2003, there were 4,310 corruption reports to the ICAC. We prosecuted 421 persons for corruption and related offences, and provided 860 advices to the ICAC. Calculated on the number of cases, we secured convictions in 85% of corruption cases.
(2) Computer Crime : In 2003, there were 588 reported cases of every type of computer crime. We prosecuted 10 cases of technology crime, and eight persons were convicted. Our Computer Crime Team provided 44 advices to law enforcers.
(3) Copyright Crime : In 2003, 976 cases were prosecuted involving criminal violations of the Copyright Ordinance, and 552 persons were imprisoned. Our Copyright Crime Team provided 180 advices to law enforcers.
(4) Customs Offences : In 2003, our prosecutors advised the Customs and Excise Department on offences involving smuggling, licensing breaches, origin frauds and excise duty evasion. We gave 651 advices to Customs and prosecuted 882 cases, which resulted in the convictions of 693 persons and 78 companies.
(5) Narcotics : In 2003, the effective prosecution of those who dealt in any way in dangerous drugs was one of our priorities.
In total, we prosecuted 407 persons in 2003 in the Court of First Instance and the District Court for the more serious narcotics offences of importing, manufacturing or distributing dangerous drugs. A further 5,173 persons were prosecuted for unlawful possession of dangerous drugs.
(6) Money Laundering : In 2003, 26 persons were prosecuted for money laundering offences under the Organized and Serious Crimes Ordinance, and $400,000 in crime proceeds was ordered to be confiscated. A further $104.43 million was restrained pending court proceedings.
(7) Commercial Crime : In 2003, there were 83 serious fraud cases investigated - each such case involved losses of at least $5 million - and 164 persons were prosecuted for serious fraud offences. Reported losses in serious fraud complaints amounted in 2003 to $2,237 million.
(8) Triad and Organised Crime : In 2003, we prosecuted 480 persons for triad society offences under the Societies Ordinance. Prosecutors made 49 applications for enhanced sentences for those convicted of offences under the Organised and Serious Crimes Ordinance.
In 2003, there were 210,055 new prosecutions in the courts, as compared to 213,467 in 2002. In 2003, 16,820 advices were given in criminal cases, as compared to 16,579 advices in 2002.
In 2003, Government Counsel attended 1,399 court days in the Court of First Instance. That compared with 1,496.5 court days in 2002. In the District Court, the figures for 2003 and 2002, were, respectively, 1,130 and 838 court days. In the Magistrates Courts, the figures for 2003 and 2002 were, respectively, 824 and 806.5 court days.
Our Court Prosecutors prosecuted a total of 183,866 cases in 2003 in the Magistrates Courts, involving 13,851 court days. That compared with 190,377 cases in 2002, involving 14,015 court days.
Conviction RatesCourt of Final Appeal (CFA)
The work of the CFA in criminal cases involved a heavy engagement of prosecutors in 2003. The number of cases processed and conducted in 1997/2003 far exceeded the number that proceeded to the Privy Council prior to reunification. Thus :
From January, 1991, to June, 1997, (6 1/2 years), there were 81 criminal cases from Hong Kong to the Privy Council.
In comparison :
Between July, 1997, and December, 2003, (6 1/2 years), 446 CFA and CFA-related cases were dealt with - an increase of 450.6%.
Briefing Out Cases
In 2003, we briefed out a substantial proportion of our cases to private lawyers to prosecute on our behalf. That reflected our belief that budgetary constraints notwithstanding, it is beneficial to involve the private sector in our work, and it contributes to a strong, experienced and independent Bar. The briefing out statistics were :
(1) Court of First Instance : 32 cases were briefed out, accounting for 458 court days. This may be compared with 439 cases prosecuted by Government Counsel, and accounting for 1,399 court days. The percentage of cases briefed out to private lawyers was 6.8%, and 24.7% of court days;
(2) District Court : 486 cases were briefed out, accounting for 2,239 court days. This may be compared with 1,003 cases prosecuted by Government Counsel, and accounting for 1,130 court days. The percentage of cases briefed out to private lawyers was 32.6%, and 66.5% of court days;
(3) Magistrates Court : 195 cases were briefed out, accounting for 561 court days. This may be compared with 510 cases prosecuted by Government Counsel, and accounting for 824 court days. The percentage of cases briefed out to private lawyers was 27.7%, and 40.5% of court days.
OVERALL PERCENTAGE OF BRIEFING OUT : 26.8% of cases and 49.3% of court days. [Compared to 34.1% of cases, and 59.1% of court days, in 2002.]
In 2003, the Court Prosecutors provided an essential service of the highest quality in the Magistrates Courts. At the start of the year, their ranks were supplemented by the recently qualified 18th batch of Court Prosecutors. The Court Prosecutors prosecuted the bulk of cases in the courts of Hong Kong. They did that with skill, determination and professionalism. We are indebted to the Court Prosecutors for their solid achievements over the years, in often difficult circumstances. Their contribution to the success of the system of public prosecutions in Hong Kong in 2003 was immeasurable.
Standards of Court Prosecutors have never been higher. Of the 106 Court Prosecutors in practice in 2003, 45 held legal qualifications. Whereas eight were admitted as barristers, a further six had obtained their Postgraduate Certificates in Law (PCLL). A further 31 Court Prosecutors had law degrees, while 39 others were holders of degrees in other disciplines. In September, five Court Prosecutors began studying for the PCLL. At the end of 2003, a further 13 Court Prosecutors were studying for legal degrees.
The average cost per court day of prosecutions conducted by a Court Prosecutor of $3,079 compares favourably with the fees for counsel prosecuting on general fiat of $5,670 per court day before July 4, 2003, and $5,430 per court day on or after July 4, 2003. If all the 13,851 court days conducted by Court Prosecutors in 2003 were to be briefed out to private counsel, it would cost about $76.87 million, which is 80.23%, or $34.22 million, more than the $42.65 million cost of the Court Prosecutors. So it is that in addition to providing the community with a high quality prosecution service at the summary level, we have a system which is cost effective.
Chinese Language Programme
Of our 110 Government Counsel, 90 were bilingual in 2003, while all 106 of our Court Prosecutors were proficient in Chinese and English.
Throughout 2003, the wider use of the Chinese language in criminal proceedings was matched by our programme to enhance the skills of our bilingual prosecutors. We sent prosecutors to Zhongshan University on a tailor-made course designed to enhance their capacity to make legal submissions in Chinese. We organised 16 Chinese language workshops to develop the capacity of bilingual prosecutors to conduct cases in Chinese. The Glossary of Legal Terms for Criminal Proceedings, which was introduced in 1998, and which we regularly update, now contains 1,438 terms. Our Bilingual Court Documents Unit translated 6,896 English documents into Chinese, and 282 Chinese documents into English. The figures for the use of Chinese language in criminal proceedings in 2003 show :
2001 2002 2003
Court of Appeal 18.5% 23.0% 24.6%
Court of First Instance 57.3% 55.9% 59.9%
Court of First Instance 16.3% 27.1% 23.7%
District Court 25.9% 30.0% 32.5%
Magistrates Court 78.8% 77.5% 74.9%
Prosecutors stand at the centre of the criminal justice system. An independent prosecution service is no less important to the rule of law than an independent judiciary or an independent Bar. Those who prosecute represent the public interest, and they must be vigilant in defence of their rights.
Prosecutors are upholders of human rights. They defend the rights of those suspected of crime. They safeguard the rights of victims and witnesses. They protect the rights of those charged with offences. A professional prosecution service has at all times to display judgment, impartiality and fairness. Prosecutors must be fearless in defence of that which is just.
Transnational offending and cyber crime challenge us all. Prosecutors need to liaise more constructively with local enforcement agencies and with their counterparts in other places. Better law enforcement strategies have to be identified and pursued. We must apply vision, innovation and grit in order to succeed in the combat of organised crime.
In conclusion, I thank the Secretary for Justice, Ms Elsie Leung, for the support and encouragement she provided to me and to our prosecutors throughout 2003. She guided and advised the Division with determination and understanding, and we had no doughtier defender when the going got tough. We thank the Secretary for all her efforts on our behalf.
Ends/Wednesday, April 7, 2004