Mr Chairman,

I welcome this opportunity to explain in public the prosecution policy of my department. I propose to explain the role of the Secretary for Justice as the public prosecutor in Hong Kong and how that role is discharged in the public interest. I will also discuss the extent to which I am accountable for prosecution decisions.

I. Decision-making

I have working under me, as head of the Prosecutions Division, the Director of Public Prosecutions. It is the use of the word "public" that underscores a fundamental truth and it is this - that the prosecutor serves the interests of the general public of Hong Kong.

Independence

This principle is of paramount importance to the rule of law and the criminal justice system in Hong Kong. First of all, the Secretary for Justice, as public prosecutor, is not the servant or the tool of the Government of the HKSAR. It is a key feature and has long been so regarded in our legal system that, as an essential safeguard for the fair, unbiased administration of the criminal law, the Attorney General in the past, and Secretary for Justice now, should not be subject to the direction and control of the Government and must jealously guard that independence in the same way as the Judiciary. So that when newspapers say the Government has prosecuted such and such a person, that is inaccurate and misleading. The Government prosecutes no one, or it has no responsibility for prosecution. All prosecutions are brought quite independently of the Government. So that when it is claimed that a particular prosecution has been brought, or not brought, for "political motives" implying that the Secretary for Justice has been told whom to prosecute or not to prosecute, I have to tell you that that is completely untrue. This principle is, I repeat, of fundamental importance to our system of justice, and that importance has been recognised in Article 63 of the Basic Law, which guarantees that prosecutions will be brought free from interference.

A second aspect of independence which I believe is also of crucial importance is the independence of the prosecutor from the Police and other law enforcement bodies. The concept that the prosecutor should also be in charge of the criminal investigation is one that is wholly foreign to our legal system, although the law enforcement bodies are always entitled to seek legal advice during the course of an investigation if they feel that would be helpful. The role of the Police and ICAC is, among others, to investigate the commission of criminal offences and to apprehend those whom they think are wrong doers. Once the investigation is complete, the prosecutor takes over to conduct the proceedings, to review the situation and to decide whether or not there would be a prosecution at all and if so then to have the conduct of it. The prosecutor is not acting on behalf of the Police or ICAC in taking this decision, not on behalf of the Government, but on behalf of the public.

This separation of function ensures that the prosecutor is able to bring an independent and objective eye to the case prepared by the law enforcement body. He is able to assess the evidence that has been collected by it and to decide whether it is in the public interest that a prosecution should be brought.

Factors in the decision-making

What are the factors that the prosecutor has before him or her in deciding whether a prosecution should be launched? These are set out in the booklet, 'Prosecution Policy: Guidance for Crown Counsel' issued by the last Attorney General in 1993. The Director of Public Prosecutions arranged in November 1997 for that document to be revised and updated. That guidance is being revised for Government Counsel, but the fundamental principles remain unchanged. As the booklet points out, it is no part of our system that just because there is what the lawyers call a prima facie case against somebody that a prosecution will always follow. Over 40 years ago a distinguished Attorney General in England, Sir Hartley Shawcross said this:

"It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution."

And many years before that one of his predecessors, Sir John Simon, said in the House of Commons that:

"There is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call 'a case'. It is not true, and no one who has held office has supposed it is."

Thus, the Secretary for Justice has a discretion. What are the factors to be taken into account then when deciding whether or not to prosecute in any particular case?

Sufficiency of evidence

First of all, there must be enough evidence to prove all the elements of an offence. This is not always easy to determine, especially where an offence requires proof of a state of mind or intention of which there is often little or no direct evidence. Even if there is evidence that tends to prove the necessary ingredients of an offence, a bare prima facie case is, generally speaking, not enough to warrant a prosecution. There must be a reasonable prospect of securing a conviction because it is not in the interests of public justice, nor of the public revenue, that weak or borderline cases should be prosecuted.

In evaluating the evidence, the prosecutor must have regard to such matters as admissibility of evidence, the credibility of witnesses, conflict of evidence, the impression witnesses are likely to make on a judge or a jury, the lines of defence which are completely open to the accused and so on. The prosecutor will need to bear many matters in mind, including the fact that evidence which is admissible against one suspect may not be admissible against another. For example, if A makes a confession statement that implicates B, that evidence is admissible against A alone. He must come back to the question which is this: whether there is a reasonable prospect of a conviction. It is in the public interest and in the interests of fairness to individuals that there should not be a prosecution unless the prosecutor is able to satisfy himself of this reasonable prospect.

I have said that to warrant a prosecution, there must be a reasonable prospect of securing a conviction. A "reasonable prospect" means that the prosecutor does not need to satisfy himself with 100 per cent certainty that the accused will be convicted. The prosecutor makes his decision to prosecute based on evidence presented to him. The prosecutor himself does not interview the witnesses except he may interview expert witnesses to get a better understanding of their evidence. It would be wrong for the prosecutor to question the witnesses by conducting some sort of mini-trial before the proper trial because all trials should be held in a Court of Law, where the guilt or innocence of an accused will be determined by the judge, or in serious cases by a jury. The consequences of having a legal system with an independent Judiciary and with the prosecutor not having to satisfy himself of 100 per cent certainty of conviction means that there will inevitably be cases in which prosecutions will result in acquittals.

There may be many reasons for an acquittal. A prosecutor can work only on the material presented to him and during the course of cross-examination the witness may depart from his earlier testimony or may reveal matters which he has not disclosed to the police. There are, of course, occasions where a witness absconds and if he is a vital witness the case will suffer.

The Public Interest

If the proposed prosecution survives this evidential test, the prosecutor then has to turn to other criteria, generally known as "the public interest criteria". I quote again from Sir Hartley Shawcross when he described the guiding principle that however good the evidence is, the prosecutor still has to be satisfied "that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest. That is still the dominant consideration." He continued by saying that regard must be had "to the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy".

There clearly cannot be hard and fast rules that would dictate how to judge the public interest criteria. But among some of the factors to be considered would be these :

* What are the surrounding circumstances of the offence?

* How serious was it?

* What were its practical effects?

* What extenuating circumstances are there?

* How would the decision to launch a prosecution affect other

people?

* How serious a view would a Court take of the offence if there

were a conviction?

* Would the consequences of prosecution be out of all

proportion to the seriousness of the offence or to the

penalty a Court would be likely to impose?

* How long ago was the offence committed and has the accused

himself attributed to the delay?

* Is the offender so young, or so old (and possibly infirm)

that a prosecution could cause disproportionate harm?

* Is there a substantial risk that the strain of a prosecution

would seriously affect the condition of the accused?

* Is it really in the public interest to proceed against those

who are only on the fringe of the offence as well as the

ring leaders ?

These are just some of the questions that a prosecutor must ask himself in deciding whether a prosecution is merited in the public interest. If, after weighing all these factors in the balance the case between prosecution and non prosecution remains even, it can properly be said that the final arbiter must be the court, and the prosecution should proceed.

Public attitude and interest

The prosecutor thus needs to take account of public attitude and interests in a number of different ways and at a number of different stages in a prosecution. First, in applying the evidential test system, he may have to take a view of the probable reaction of a group of members of the public, sitting as jurors, to a particular set of circumstances. In other words, is there a reasonable prospect of a conviction by members of the public selected at random? Then in applying the public interest criteria, how does he assess what the public really expects of its prosecutors? This may not be easy. Very often, public opinion is aroused quickly and may not be fully informed. The prosecutor, looking at the situation impassionately and objectively, should not necessarily be swayed by it.

II. Accountability

Mr Chairman, I turn now to the question of my accountability. I am of course, accountable to the legislature and frequently answer questions, either in formal sessions of the Council or at Panels such as this. However, as a matter of principle, I cannot explain a decision not to prosecute a particular case.

This policy of not disclosing the reasons for prosecution decisions is a long-standing policy, and has been consistently applied in Hong Kong. It was, for example, explained to the Legislative Council in March 1987 by the then Attorney General, Mr Michael Thomas Q.C..

Nor is it a policy that is unique to Hong Kong. English Attorneys General and Directors of Public Prosecutions also consistently adopt it. In February 1992, Sir Patrick Mayhew Q.C., who was then the English Attorney General, explained the policy to a Committee of the House of Commons. He emphasised that -

"it is extremely important that where somebody has not been prosecuted or where a prosecution has been discontinued against someone, the evidence that would have been available had that prosecution continued should not be paraded in public."

He added that -

"I cannot think of an answer that I have given in this particular context that is more particular, or significantly more particular, than saying that I have examined the circumstances in which the particular course of action was followed and I have satisfied myself that the correct principles were applied."

The policy was not created for the convenience of the Secretary for Justice. Indeed there are many cases in which a Secretary for Justice would wish to be free to explain his reasons. The policy was created to safeguard the integrity of the criminal justice system and to protect the legitimate interests of those caught up in that system; to ensure that the fundamental safeguards provided for a defendant in a criminal trial are not swept away in the course of a non-judicial enquiry, where there are no rules of evidence, no presumption of innocence, no right of cross-examination and no requirement of proof beyond reasonable doubt.

I would like to demonstrate what could happen if there were an obligation to present an explanation for a prosecution decision. Let us assume that the prosecutor considered that there was insufficient evidence for there to be a reasonable prospect of a conviction. In order to demonstrate that he had considered all the relevant factors, and reached his decision impartially, the prosecutor would have to reveal the nature of the evidence; say why he considered a particular witness might not be reliable or might not be telling the truth; and so on. A public debate might then follow, in which people judged for themselves whether the suspect was guilty or not. In our system, the only proper place for questions of guilt or innocence to be determined is in a court of law, where the accused has the right to a fair trial in accordance with the rules of criminal justice and the opportunity to defend himself.

Similar considerations apply where the prosecutor considers there is sufficient evidence to justify a prosecution, but decides not to prosecute because this is not in the public interest. For example, if he were to announce that there was sufficient evidence to prosecute, but that the suspect played a minor role in the criminal action and his guilt in comparison with the principal offenders was minimal, this would be tantamount to announcing that the defendant was guilty, without any trial having taken place.

Mr Chairman, I hope I have demonstrated that there is an important principle at stake here, and that the principle is designed, not for the convenience of the Secretary for Justice, but for the protection of suspects and others involved in the criminal justice process.

The Hong Kong Standard Case

Finally, Members are well aware of the reason why I am called to this special meeting: recently, members of the public and the media have expressed concern about my decision not to prosecute Madam Aw Sian, the named co-conspirator in the Hongkong Standard case. It is said that my non-disclosure of the reason for my decision has eroded the rule of law in Hong Kong and affected people's confidence in our legal system.

May I assure Members of this Council that in reaching my decision, I have strictly adhered to the established prosecution policy of this Department and to Article 63 of the Basic Law. I am however doubly hindered in the present case in explaining my reasons, firstly because of the principle of non-disclosure as I have explained above, and secondly because the fact that three defendants will be on trial prohibits me from going into details of the facts of the case or the evidence involved. It is part of our criminal justice system that no comments should be made on matters which are sub judice.

I appreciate that the public, the media and Members of this Council are eager to know the details and the evidence of the case, short of which no explanation I now give will satisfy them. However, I must be careful to observe the rules of non-disclosure in cases in which no prosecution is made of a named person, and in cases that will come before the court. As a result, I cannot even say whether my decision is based on insufficiency of evidence or the public interest.

I must emphasise the need for the Secretary for Justice to make a decision independently. If the Secretary for Justice cannot disclose the ground for not prosecuting, it inevitably may give rise to public concern. However it remains the responsibility of the Secretary for Justice not to bring a prosecution in every case and leave it to the accused to fend for himself and seek an acquittal from the court. Otherwise, the defendant will have to go through the pressure of a trial and suffer damage as a result.

I would also like to take this opportunity to explain one issue raised by the media and in public, that is, why we have only charged three persons but not all alleged co-conspirators named in the case. This is not the first time that this has occurred. In the short time available to me, I have been able to identify 13 concluded cases coming from our Commercial Crime Unit alone, in which a named co-conspirator was not charged. In addition, there are other cases currently proceeding in such circumstances. There are various reasons why this can occur, for example, where the named person is to be a prosecution witness; where a person is not within the jurisdiction; and where charging the named person would not be in accordance with our prosecution policy, either because of the nature of the evidence or a public interest factor. It always has to be remembered that although a piece of evidence may be admissible against one person, it may be inadmissible against another. Under the Criminal Procedure Ordinance, an accused person is entitled to know with some particularity the nature of the case against him. Therefore, where it is alleged that A conspired with B, B's identity ought, where practical, to be revealed in the charge, even if B is not himself charged. B may not be charged, for example, because B may be called as a prosecution witness, is dead, is out of jurisdiction, there is insufficient evidence against B or it is against the public interest to charge B.

As I said, whatever explanation I give now would not satisfy the media and the public completely. But I hope that they will be patient and place reliance on our open and fair judicial system as, during the trial, the evidence will become open to the public. As previously indicated, I hope that at the conclusion of the trial it will be possible to make a public statement on the case.

I would add that, in performing my constitutional functions in respect of prosecutions, I will not bow to external pressure. I will continue to act independently, and in accordance with the rule of law.