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LCQ14: DoJ provides legal advice to law enforcement agencies
     Following is a question by the Hon Tanya Chan and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (November 16):

     On the night of November 26, 2014, a police superintendent seemingly assaulting pedestrians with a baton when dispersing the participants of the occupation movement in Mong Kok was captured on video.  The said police superintendent retired in July last year.  On July 27, this year, the Director of Operations of the Hong Kong Police Force said that the Complaints Against Police Office had completed its criminal investigation into the case and submitted the results to the Department of Justice (DoJ), and was awaiting further advice from the latter.  In this connection, will the Government inform this Council:
(1) as (i) it has been almost two years since the occurrence of the aforesaid case, (ii) the Police sought legal advice on the case from DoJ in August and December last year, and (iii) it has been more than three months since DoJ received the results of the criminal investigation into the case, of the reasons why DoJ has so far not decided on whether or not to institute criminal prosecution in respect of the case; how much longer DoJ will take, as estimated by it, to make a final decision; and
(2) as the case has aroused wide public concern, whether the authorities will review the arrangements in respect of the retirement benefits, pension, etc. for the former police superintendent at the same time when making the decision on whether criminal prosecution will be instituted in respect of the case; if they will review, of the details; if not, the reasons for that?



     The reply to the Hon Tanya Chan's question is as follows.
(1) The independent prosecutorial power is guaranteed by Article 63 of the Basic Law which says that the Department of Justice (DoJ) of the Hong Kong Special Administrative Region (HKSAR) shall control criminal prosecutions, free from any interference.  According to the Prosecution Code, the DoJ should bring a prosecution only if there is a reasonable prospect of conviction.  Prosecutors in the DoJ have been strictly adhering to the prosecution policy and jealously guarding the principle of prosecutorial independence as guaranteed by the Basic Law.
     The DoJ will make all prosecution decisions independently, fairly and in strict accordance with the law and the Prosecution Code.  And where actually feasible, the DoJ will also seek to provide detailed and comprehensively considered legal advice to law enforcement agencies (including the Police) as quickly as possible.  However, the actual time that it takes to provide legal advice on each case would depend on a whole host of factors, including mainly the nature and complexity of the case.  And amongst the cases submitted to the DoJ, in the event that directions were necessary for the relevant law enforcement agency to make further enquiries, they would be given before the legal advice could be finalised and prosecutions (if considered appropriate) be taken forward.  Although prosecutors have the duty to decide as soon as possible after an incident whether to take prosecution action, they also have the responsibility to conduct comprehensive, detailed and in-depth research and analysis into the details of the case, so as to ensure that prosecution will be pursued only where there is sufficient evidence.

     In respect of the case mentioned in the question, the DoJ and the Police have all along maintained communication.  The DoJ is examining the information provided by the Police and related legal issues with a view to deciding as soon as possible whether any person should be prosecuted.  It is not appropriate for the HKSAR Government to make further comments on the case at this stage.
(2) The HKSAR Government does not comment on individual cases.
     Generally speaking, where a retired civil servant is convicted of certain offences, including those in connection with the public service under the Government, being an offence which is certified by the Chief Executive to have been gravely injurious to Hong Kong or to be liable to lead to serious loss of confidence in the public service, his or her pension may be cancelled, suspended or reduced by the HKSAR Government in accordance with the Pensions Ordinance or Pension Benefits Ordinance.
Ends/Wednesday, November 16, 2016
Issued at HKT 13:55
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