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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 2006 today (April 19):
Introduction
For the Prosecutions Division, 2006 was a year of challenge and of change. Throughout the year, prosecution policy was scrupulously applied, modernisation was vigorously pursued, and closer liaison with our counterparts in other places was actively promoted in the interest of better law enforcement. A series of reforms to modernise our processes was introduced, and a policy of transparency was maintained to promote community understanding of our work. Our core business remained the professional and effective prosecution of criminals.
The Strategic Plan of the Prosecutions Division 2002-2007
The Strategic Plan of the Prosecutions Division 2002-2007 was introduced in 2002. In its fourth full year of operation, prosecutors brought the bulk of the Strategic Plan to fruition. Partnerships were strengthened, liaison was improved, professionalism was encouraged, expertise was enhanced and transparency was promoted. The Strategic Plan placed the notion of service to the community at the heart of the Division's agenda, and committed prosecutors to 'a professional and focused system of public prosecutions'. Through the implementation of the Strategic Plan, prosecutors committed themselves in 2006 to:
* the fair and independent making of decisions
* the timely and accurate giving of advices
* the firm and fair prosecution of offenders
* the effective and concerted combat of crime
* the modern and efficient operation of the prosecution service.
Prosecution Policy in 2006
Article 63 of the Basic Law provides that the Department of Justice shall control criminal prosecutions, free from any interference. Throughout 2006, prosecutors acted independently of both government and those who investigate, and took the decisions they considered to be in the interests of justice. Before prosecutions were instituted, there had at least to be a reasonable prospect of conviction, and the laying of charges had also to be in the public interest. Suspects were protected from prosecution on the basis of mere suspicion.
In 2006, prosecutors pursued 215,302 prosecutions, and gave 14,895 legal advices. Whenever possible, prosecution action was used as a last resort, and particularly with young persons alternatives to prosecution were considered. As regards juvenile offenders aged up to 17 years, 2,774, or 40.3%, were cautioned by the Police as an alternative to prosecution.
Criminal Justice Initiatives in 2006
In 2006, the Division sought to enhance the quality of criminal justice available to the community, and prosecutorial techniques were subject to constant review. Proposals to improve the operation of the legal system were formulated and advanced. Specific initiatives to have been pursued by prosecutors included:
* the compilation of a criminal appeals manual
* the finalisation of procedures for the disclosure of unused material by law enforcement personnel
* the drafting of a manual of specimen charges to promote consistency in offence formulation
* the implementation of measures to fast-track cases involving vulnerable witnesses
* the preparation of guidelines for prosecuting cases involving domestic violence.
Domestic Violence
In October, 2005, the Policy Address contained a commitment to protect the victims of domestic violence, and to 'pursue the perpetrators of violence and bring them to justice'. As prosecutors, we recognise that domestic violence is a blight on society, and in 2006 we established a working group to modernise our existing arrangements, and to identify measures to promote the interests of its victims. In November, the working group issued to prosecutors The Policy for Prosecuting Cases involving Domestic Violence. The Policy places the robust prosecution of domestic violence cases at the forefront of our planning. The Policy recognises that justice is the right of those who are abused in a domestic context.
The Policy guides prosecutors in their dealings with others, and promotes an appreciation of the standards of service that victims of domestic violence are entitled to expect of the criminal justice system. If offenders are to be brought to justice, victims must trust the system and be prepared to testify against them at court. The Policy is a practical guide for prosecutors, and it places victims and their interests at the heart of the approach to prosecuting. The Policy:
* describes domestic violence
* explains the prosecution's role
* considers charging policy and practice
* highlights the avoidance of delay
* examines the role of the victim
* prioritises support for the victim at court
* reviews the use of bind-over orders
* promotes appropriate sentencing levels.
The function of the prosecutor is to help to develop best practice in the handling of cases involving victims of domestic violence, to make the right decisions and to prosecute effectively. Decisions must be based on the fullest evidence and background information. Through the pursuit of viable prosecutions, those responsible for domestic violence must be brought to account.
The Standing Committee on Disclosure
The Standing Committee on Disclosure was established by the Prosecutions Division in 2004. Its mandate is to keep the Division's arrangements for the disclosure by the prosecution of evidence to the defence in the interests of fair trials under periodic review. In October, 2005, the Policy Address was delivered, and the Policy Agenda announced there would be 'a comprehensive review of the disclosure arrangements of the law enforcement agencies in relation to material which requires to be revealed to the defence to ensure the fair and proper conduct of criminal cases'. In 2006, therefore, the Standing Committee settled tailor-made guidelines for:
* the Independent Commission Against Corruption (April)
* the Customs and Excise Department (May)
* the Hong Kong Police Force (May)
* the Departmental Prosecution Services (July).
In 2005, the Standing Committee was asked to modernise the guidance provided to prosecutors in relation to their disclosure obligations. Having completed its task, the Standing Committee issued fresh guidelines in 2006. These guidelines both modernised and expanded the existing disclosure requirements in a way which emphasised the right of an accused to a fair trial. Topics addressed included:
* the obligation to disclose
* the disclosure test and its application
* what must be disclosed
* the timing of disclosure
* public interest immunity
* informants
* legal professional privilege.
International Association of Prosecutors
Throughout 2006, the Prosecutions Division played a full role in the International Association of Prosecutors (IAP), which it joined in 2001. The IAP facilitates communication between prosecutors in different places, it promotes best practice in the combat of transnational crime, and it provides a point of reference for prosecutors in the challenges they face. We liaised closely with our counterparts in other jurisdictions in order to enhance our ability to combat all types of transnational crime.
From September 16 to 20, 2007, at the Hong Kong Convention and Exhibition Centre, we will host the 12th Annual Conference and General Meeting of the IAP. The conference will be attended by 500 prosecutors from more than 100 countries, representing every region of the world. The theme of the conference is 'Relations with Others : Accountability, Transparency and Independence'. The Conference will examine the way in which prosecutors relate to others in the community, and no issues are more important for prosecutors these days than accountability, transparency and independence. We look forward to welcoming the prosecutors of the world to Hong Kong, and to sharing perspectives and aspirations with our counterparts. The 12th Annual Conference promises to be a watershed for prosecutors everywhere.
Contacts with the Mainland and Macau
Throughout 2006, the Prosecutions Division promoted its contacts with legal officials from other parts of China. Prosecutors visited the Mainland and Macau to discuss comparative legal procedures, the combat of corruption, prosecutorial techniques, organised crime and the protection of human rights. We briefed 14 visiting delegations from elsewhere in China upon the operation of our legal system.
In 2006, pursuant to the Legal Services Co-operation Agreements, we welcomed officials from the Zhejiang Justice Department, the Nanjing Justice Bureau, the Shanghai Justice Bureau and the Shenzhen Justice Bureau. In turn, our prosecutors visited the Justice Bureaux of Beijing and Shenzhen. In June, July and August, 10 legal officials, from the Supreme People's Prosecution Service, the Ministry of Public Security, the Ministry of Supervision and the Customs General Administration, were attached to the Division under the Training Scheme in Common Law for Mainland Legal Officials, and we explained to them the operation of a modern prosecution service based on the common law.
Key Areas of Prosecution Responsibility
The Division's teams of specialist prosecutors discharged a heavy workload in 2006. These included:
(1) Commercial Crime: In 2006, there were 62 serious fraud cases investigated, each such case involving losses of at least $5 million, and 21 persons were prosecuted for serious fraud offences. Reported losses in serious fraud complaints amounted in 2006 to $3.62 billion.
(2) Copyright Crime: In 2006, 776 cases were prosecuted involving criminal violations of the Copyright Ordinance, and 597 persons were imprisoned. Our Copyright Crime Team provided 84 advices to law enforcers.
(3) Corruption: In 2006, there were 3,339 corruption reports to the ICAC. We prosecuted 341 persons for corruption and related offences, and provided 832 advices to the ICAC. Calculated on the number of cases, we secured convictions in 88% of corruption cases.
(4) Customs Offences: In 2006, our prosecutors advised the Customs and Excise Department on offences involving smuggling, licensing breaches, origin frauds and excise duty evasion. We gave 842 advices to Customs and prosecuted 1,554 smuggling cases, which resulted in the convictions of 1,193 persons and 207 companies.
(5) Environmental Protection: In 2006, our prosecutors advised the Environmental Protection Department on offences involving pollution, noise, waste disposal, dumping at sea and the ozone layer. We prosecuted 341 cases for violations of environmental laws. Fines imposed by the courts totalled $3,281,000.
(6) Gambling: In 2006, we prosecuted 921 cases of unlawful gambling, and 4,936 persons were convicted of gambling offences.
(7) Immigration Offences: In 2006, our prosecutors advised the Immigration Department on offences involving false travel documents, making false representations to an immigration officer, possession of a forged identity card, breach of condition of stay and employing a person not lawfully employable. We prosecuted 15,365 persons for immigration offences, and 16,587 charges were laid, of which 15,808 resulted in convictions.
(8) Inland Revenue: In 2006, we advised the Inland Revenue Department upon 14 of its investigations, and 7 cases were prosecuted. Total tax evaded in cases prosecuted was $8,397,583.
(9) Labour and Occupational Safety: In 2006, our prosecutors advised the Labour Department on offences involving occupational safety, non-payment of wages, anti-union activity and denial of workers' rights. The Labour Team gave 396 advices to the Labour Department, and prosecuted 5,193 labour cases, resulting in 3,881 convictions.
(10) Money Laundering: In 2006, 116 persons were prosecuted for money laundering offences under the Organised and Serious Crimes Ordinance, and $4.447 million of crime proceeds was confiscated. A further $40.003 million was restrained pending court proceedings.
(11) Narcotics: In 2006, we prosecuted manufacturers, distributors and possessors of dangerous drugs. In total, we prosecuted 353 persons 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 4,135 persons were prosecuted for unlawful possession of dangerous drugs.
(12) Obscene Articles and Child Pornography: In 2006, our prosecutors advised the Television and Entertainment Licensing Authority (TELA) on cases arising under the Control of Obscene and Indecent Articles Ordinance. TELA referred 457 articles to the Obscene Articles Tribunal for classification. Of these, 241 articles were classified as obscene, and 144 as indecent. These positive classifications resulted in 228 prosecutions.
(13) Social Welfare: In 2006, our prosecutors provided the Social Welfare Department with 91 advices. We conducted 134 prosecutions, most typically involving fraudulent applications for social security, and the improper use of welfare payments, resulting in 130 convictions.
(14) Technology Crime: In 2006, there were 741 reported cases of technology crime. We prosecuted 15 cases of computer crime, 11 persons were convicted. Our Computer Crime Team provided 41 advices to law enforcers.
(15) Triad and Organised Crime: In 2006, we prosecuted 715 persons for triad society offences. Prosecutors made 34 applications for enhanced sentences for those convicted of offences under the Organised and Serious Crimes Ordinance.
Caseload
In 2006, there were 215,302 new prosecutions in the courts, as compared to 222,876 in 2005. In 2006, 14,895 advices were given in criminal cases, as compared to 14,707 advices in 2005.
In 2006, Government Counsel attended 1,340 court days in the Court of First Instance. That compared with 1,700 court days in 2005. In the District Court, the figures for 2006 and 2005, were, respectively, 778 and 866 court days. In the Magistrates Court, the figures for 2006 and 2005 were, respectively, 491 and 591 court days.
Our Court Prosecutors prosecuted a total of 177,034 cases in 2006 in the Magistrates Courts, involving 12,571 court days. That compared with 188,306 cases in 2005, involving 13,705 court days.
Conviction Rates
2005 2006
Magistrates Court 73.5% 76.8%
District Court 87.5% 91.8%
Court of First Instance 90.4% 92.3%
Appeal Rates
2005 2006
Court of Appeal
Total no. of appeals 601 493
determined
- Dismissed 241 (40.1%) 84 (17.1%)
- Allowed [in whole 111 (18.5%) 188 (38.1%)
or in part]
- Abandoned 249 (41.4%) 221 (44.8%)
Magistracy Appeals
Total no. of appeals 1,154 1,180
concluded
- Dismissed 579 (50.2%) 247 (20.9%)
- Allowed [in whole 200 (17.3%) 502 (42.6%)
or in part]
- Abandoned 375 (32.5%) 431 (36.5%)
Court of Final Appeal (CFA)
The number of cases processed and conducted by the Prosecutions Division in 1997/2006 far exceeded the number that proceeded to the Privy Council prior to reunification. Thus:
From January 1988 to June 1997, (9? years), there were 113 criminal cases from Hong Kong to the Privy Council.
In comparison:
Between July 1997 and December 2006 (9? years), 829 CFA and CFA-related criminal cases were dealt with - an increase of 634%.
Briefing Out Cases
In 2006, a substantial number of cases was briefed out to private lawyers to prosecute on our behalf. This is an arrangement which facilitates the operation of the Division, and contributes to the development of a legal profession which is experienced and balanced in its understanding of public prosecutions. The briefing out statistics were:
(1) Court of First Instance: 31 cases were briefed out, accounting for 744 court days. This may be compared with 380 cases prosecuted by Government Counsel, and accounting for 1,340 court days. The percentage of cases briefed out to private lawyers was 7.5%, and 35.7% of court days;
(2) District Court: 530 cases were briefed out, accounting for 2,902 court days. This may be compared with 932 cases prosecuted by Government Counsel, and accounting for 778 court days. The percentage of cases briefed out to private lawyers was 36.3%, and 78.9% of court days;
(3) Magistrates Court: 308 cases were briefed out, accounting for 720 court days. This may be compared with 265 cases prosecuted by Government Counsel, and accounting for 491 court days. The percentage of cases briefed out to private lawyers was 53.8%, and 59.5% of court days.
Overall percentage of briefing out: 35.5% of cases and 62.6% of court days. [Compared to 35.0% of cases, and 55.1% of court days, in 2005.]
Court Prosecutors
In 2007, the Court Prosecutors as a grade celebrate their pearl anniversary. In the 30 years since their introduction in 1977, they have greatly advanced the rule of law at the summary level. The Court Prosecutors conduct the bulk of the cases tried in the courts of Hong Kong, and they also facilitate the efficient processing of cases. All of those concerned with the administration of justice owe them a great debt of gratitude. I thank the Court Prosecutors for their unswerving devotion to the interests of justice, in sometimes difficult circumstances, and for their immense contribution to our legal system.
Of the 96 Court Prosecutors in practice in 2006, 46 held legal qualifications. Whereas 9 were admitted as barristers, a further 7 had obtained their Postgraduate Certificates in Law (PCLL). A further 30 had law degrees, while 33 others were holders of degrees in other disciplines. At the end of 2006, 4 Court Prosecutors were studying for law degrees.
The average cost per court day of prosecutions conducted by a Court Prosecutor of $2,621 compares favourably with the fees for counsel prosecuting on general fiat of $5,430 per court day. If all the 12,571 court days conducted by Court Prosecutors in 2006 were to be briefed out to private counsel, it would cost about $68.3 million, which is 107.6%, or $35.4 million, more than the $32.9 million cost of the Court Prosecutors. Not only do our Court Prosecutors provide a first-class service, they do so at a cost which is reasonable, which is a welcome bonus.
Chinese Language Programme
Throughout 2006, we continued to promote the use of the Chinese language in criminal proceedings. Of our 100 Government Counsel, 85 were bilingual in 2006, while all 96 of our Court Prosecutors were proficient in Chinese and English. We organised 2 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, now contains 1,678 terms. Our Bilingual Court Documents Unit translated 6,068 pages of English documents into Chinese, and 350 Chinese documents into English. The figures for the use of Chinese language in criminal proceedings in 2006 show:
2004 2005 2006
Court of 22.7% 19.3% 26.4%
Appeal
Court of First 56.8% 62.5% 63.2%
Instance
(Magistracy Appeals)
Court of First 21.2% 16.5% 23.5%
Instance (Trials)
District Court 12.3% 11.8% 37.1%
Magistrates Court 68.7% 69.7% 75.2%
Conclusion
To succeed, a modern prosecution service must be modern in outlook, progressive in practice, and attuned to the needs of its community. It must also be adequately resourced, not least because this is the era of globalisation and transnational organised crime. Hong Kong is an advanced Asian city and a regional hub, and the challenge for the Prosecutions Division is to supply a sophisticated and expert service in all areas. We have come far since 1997, and we must maintain the momentum in the years ahead.
Our prosecution service has moved with the times, and its levels of expertise are now formidable. But greater specialisation is inevitable if investigators are to be properly advised and criminals brought to account. Our operations must be subject to ongoing scrutiny and development, and complete familiarity with latest prosecution techniques has to be actively promoted. Fundamental to this is close liaison with prosecutors in other places, full community engagement and comprehensive training.
In conclusion, I thank the Secretary for Justice, Mr. Wong Yan-lung, for the support and encouragement he gave to the Division throughout 2006. In his first full year of office, he provided us with important new perspectives, and took a keen interest in our operations. I am grateful to the Secretary for his advice and guidance, and thank him for his efforts on our behalf.
Ends/Thursday, April 19, 2007
Issued at HKT 17:10
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