Speech by Mr Grenville Cross, the Director of Public Prosecutions of the Department of Justice, on "The Role of the Prosecuting Authority in the Legal System of the Hong Kong Special Administrative Region of the People's Republic of China" delivered at a conference organised by the Public Ministry of Macau
My name is Grenville Cross, and I am the Director of Public Prosecutions of the Hong Kong Special Administrative Region of the People's Republic of China. I was appointed to that post by the Chief Executive of the HKSAR, Mr. Tung Chee Hwa, in October 1997. As DPP, I head a Division within the Department of Justice, which is responsible to the Secretary for Justice, Ms. Leung Oi-sie, who cannot be here today, but who sends her warm greetings and her hopes for a successful conference.
I am sometimes asked if I have noticed any changes in the HKSAR since the handover. As a lawyer, and as a prosecutor, I am able to assure people that the rule of law has continued to flourish, that basic freedoms remain intact, and that the fundamental principles which underpin our way of life are secure. It remains an international centre, in which there is a place for all those committed to its well-being and prosperity. It is some twenty years since Deng Xiaoping told Hong Kong people to stop worrying about the future. That assurance was turned into precise promises by the Joint Declaration, between the United Kingdom and the People's Republic of China, and by the Basic Law, which together provide the bedrock upon which contemporary Hong Kong is built. Full respect has been accorded to the imaginative concept of 'one country, two systems'. The HKSAR has, as was promised, kept its own way of life, its own way of doing things, and has been left to run its own affairs. So it is that continuity has been achieved in the substance and operation of the legal system of the HKSAR. In the protection and advancement of the rule of law in the HKSAR its prosecutors have a vital role to play.
The Secretary for Justice is responsible for all prosecutions in the HKSAR. It is her responsibility to decide, either directly or indirectly, whether or not a prosecution should be instituted in any particular case and, if so, to institute and conduct the prosecution through the office of the DPP.
As DPP I head a Division which comprises some 250 prosecutors. As my title indicates, I direct the course of public prosecutions in the HKSAR, by and on behalf of the Secretary for Justice. The main tasks performed by prosecutors are the prosecution of trials in the Court of First Instance, the District Court, and the Magistrates Courts, appearing at the hearing of appeals, advising the Police and other departments as to charges and preparation of cases, and advising the Secretary for Justice generally on matters arising within the prosecutions portfolio.
The Legal System in the HKSAR
What then is the framework within which the prosecutors of the HKSAR operate? The legal system of the HKSAR is firmly based on the rule of law and the independence of the judiciary. To these concepts are attached the greatest of importance. The courts in the HKSAR exercise power independently, free from any interference. This was so traditionally and it is now enshrined in Article 85 of the Basic Law, which also protects judicial officers from legal action in the performance of their judicial functions. It is recognised that an independent judiciary upholding the rule of law is the bullwark of the legal system. The administration of justice by the courts has continued as before. The common law flourishes.
After the resumption of sovereignty on 1st July, 1997, the constitutional framework for the legal system of the HKSAR is provided for, at the international level, by the Sino-British Joint Declaration, which was signed in December, 1984. It is provided for at the domestic level by the Basic Law enacted by the National People's Congress of the People's Republic of China under Art. 31 of the Chinese Constitution and promulgated in April, 1990.
The Basic Law of the HKSAR provides for the adoption of the laws previously in force in Hong Kong. Art. 8 of the Basic Law states that:
"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of HKSAR. "
The Standing Committee of the National People's Congress, in February, 1997, acting under Art.160 of the Basic Law, adopted all the laws previously in force, save for 24 Ordinances which were found (in whole or in part) to contravene the Basic Law.
The continuity of the legal system in HKSAR is further guaranteed by the Hong Kong Reunification Ordinance which provides for:
(1) the continuance of laws previously in force which have been adopted as laws of the HKSAR and their interpretation in a manner that does not contravene the Basic Law and is in conformity with the status of Hong Kong as a Special Administrative Region of the People's Republic of China;
(2) the continuance of legal proceedings, the criminal justice system and the administration of justice; and
(3) the continuing validity of official acts and documents.
The laws in force in the HKSAR therefore comprise:
(1) the Basic Law,
(2) national laws listed in, or added to, Annex III to the Basic Law,
(3) the laws previously in force (i.e. before the resumption of sovereignty) that were adopted as laws of the Special Administrative Region by the Standing Committee of the National People's Congress, and
(4) laws enacted by the legislature of the Special Administrative Region.
So it is that the structures to protect the way of life of the HKSAR are in place and functioning. But there is no room for complacency. The structures established have to be operated, and here the judiciary, the private legal sector and the Department of Justice all have essential roles to play.
Criminal Procedure in the HKSAR
The criminal procedure of the HKSAR generally shares the characteristics of the common law system and is adversarial in nature. Beginning from the investigation and detection of crimes, the rules of criminal procedure regulate the conduct of the proceedings. In such proceedings, there are different stages from the investigation to the end of a trial, or to the appeal, if any. The stages consist generally of (a) investigation by a law enforcement agency; (b) laying a charge; (c) choice of venue of trial; (d) the trial; (e) the appeal.
Prosecutors in the HKSAR play an important role in the administration of criminal justice. Because of the adversarial nature of a criminal trial, the judge takes a less active role in the production of evidence, while counsel for the prosecution or for the defence will call witnesses, or, ask various questions with a view to establishing the necessary evidence to support their own cases or else to undermine the opposing case.
Most criminal offences are investigated by the police. There are, however, a number of offences which are within the ambit of other law enforcement agencies, such as the Immigration Department, the Customs and Excise Department and the Independent Commission Against Corruption. Police and other officers have various powers enabling them to carry out their duties in the detection and investigation of crimes.
The powers of the police include the power to investigate and prevent crimes, to stop and search, to seize property relevant to the investigation of an offence, to arrest suspects, to detain suspects for further investigation and to question. Police officers are empowered to exercise the power to arrest either with or without a warrant. Where the circumstances cause reasonable suspicion on the part of a police officer that an offence would be or has been committed, he can arrest a suspected person without a warrant. Where the situation of the case requires the police to obtain a warrant first for an arrest, it can be obtained by application supported by information on oath from a Magistrate.
Upon arrest, the suspect must be informed of the reason for the arrest, unless it is impracticable to do so. The arrested person, however, must be brought to a police station for further enquiry as soon as possible. Normally, an arrested person is cautioned when he is arrested.
There are rules governing the manner in which an arrested person is to be treated after he has been taken to a police station. The arrested person must either be charged as soon as possible and brought before a magistrate, be released unconditionally, or else be granted bail.
Apart from the power to arrest, the police can stop any person acting in a suspicious manner, and, if necessary, search and detain the person for further enquiry. In the HKSAR, citizens or arrested persons are not obliged to answer questions from the police. Police officers cannot in any way compel or induce a citizen or an arrested person to answer any question. Any incriminatory answers obtained by trickery, inducement, oppression, or unfairness will not be admissible in evidence. This is an important principle underlying the criminal justice system based on the right of a person subject to criminal proceeding to remain silent.
During or after the investigation of a criminal case, the police will consider the grant of bail to an arrested person, unless the offence is of a serious nature. Usually, bail is conditional on the suspect agreeing to appear on a specified day in the police station or else in a Magistrates' Court.
What then is the prosecution policy of the HKSAR? Before the handover, it was a fundamental principle that the decision whether or not to prosecute any person was the responsibility of the Attorney General alone; and, in making that decision, the Attorney General would act independently, and in no way subject to political, or other pressure. Since the handover, the fundamental principle has continued to be applied by the Secretary for Justice, as the successor to the Attorney General. Thus, Article 63 of the Basic Law states unequivocally that the Department of Justice of the HKSAR shall control criminal prosecutions, free from interference. The Department of Justice has complied, and continues to comply with the Basic Law in this regard.
The Secretary for Justice is the senior law officer of the HKSAR and it falls upon her shoulders to develop and to control the administration of the criminal law in the public interest generally and in the interests of 'public justice'. The true doctrine is that it is the duty of the Secretary for Justice, in deciding whether or not to authorise a prosecution, to acquaint herself with all the relevant facts, including for instance the effect which the prosecution, successful or unsuccessful as the case may be, would have been upon the public morale and order, and with any other considerations affecting public policy. Whilst the Secretary may consult, the responsibility for the eventual decision rests with her. The Secretary retains a discretion whether or not to prosecute. There are two stages to the decision to prosecute. The first stage involves a consideration of the sufficiency of evidence. The second stage involves a consideration of whether a prosecution is in the public interest.
After the prosecution has decided what is the appropriate charge, it is necessary to decide the venue of trial in the HKSAR. The courts which can try criminal cases include the Juvenile Court, Magistrates' Court, District Court and Court of First Instance.
Juvenile Courts hear cases against juveniles, that is, children or young persons under the age of 16, except homicide cases. Magistrates' Courts deal with cases in which it is expected that an accused will not normally be sentenced to more than 2 years imprisonment on conviction. In the District Court and the Court of First Instance, the indictable offences are heard. The jurisdiction of a District Court is 7 years and there a judge sits alone without a jury. The most serious cases are heard in the Court of First Instance where there will be a judge and a jury of 7. The sentencing jurisdiction of the Court of First Instance is limited only by the maximum penalty for the offence.
The choice of venue is invariably made by the prosecution, although in law, some offences must be tried at certain levels - murder and rape, for example, must be tried in the Court of First Instance. When making the decision, it is necessary to take into account the jurisdiction of the courts and the likely sentence to be received by the accused in the particular case.
In deciding whether there should be a trial of an accused, and in the prosecution of any such accused, high standards are required of prosecutors. The prosecutor must be fair, independent and objective. He must not allow his decisions to be influenced by his own personal views. He must also not be affected by improper or undue pressure from any source. If there is a trial, his function is not to secure a conviction at all costs. It is to ensure a fair presentation of the prosecution case, and a fair trial of the accused. The prosecutor ought to see his role as akin to that of a minister of justice, and his aim must be to secure a just outcome of the proceedings. That does not mean he should not always be firm, but he must equally always be fair. If that involves the disclosure, for example, of material which may weaken the prosecution case, such as the previous convictions of a prosecution witness, then so be it. The prosecutor, who has at his disposal the fullest of resources, must never become obsessed with a particular outcome of the trial. He must keep a balanced judgment at all times. The rule of law requires no less of him. The end never justifies the means. The rules must never be bent. The standards of the criminal justice system must never be compromised.
At the trial the prosecutor must remember that he is a minister of justice. He must avoid emotive language. He must present his case in a manner which is balanced and even-handed. He must present his witnesses for cross-examination by the defence. He must refrain from argumentative questions for reasons of fairness, because the prosecutor has no interest whatever in securing a conviction. His sole interest is to convict the right man. It is a long established practice that if the prosecution concludes at any stage of the trial that there is no evidence against the accused or so little evidence that it would not be safe to leave the case for final adjudication, then the proper course to adopt is to invite the court to acquit the accused. The prosecutor should not express to the court a personal opinion as to the guilt of the accused.
In a trial in the HKSAR, the accused has no obligation to prove his innocence. The burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt. That burden never shifts. The accused is presumed to be innocent until such time that the prosecution has convinced the court of the contrary. The accused can challenge his accusers. He can decide if he wants to give evidence or to call any witness. No adverse inferences will be drawn if the accused exercises his right to remain silent. If he is convicted of an offence, he is entitled to place such matters in mitigation of sentence before the court as he wishes.
Since the prosecutor is a minister of justice, the prosecution has no vested interest in securing a more severe sentence. The prosecutor should not attempt by advocacy to influence the court in regard to sentence. The prosecutor, having secured a conviction, nonetheless plays an important role at the sentencing stage of the trial. The duty to assist the court is part of the prosecutor's general duty in the administration of justice.
The public interest requires no more of the prosecutor than that he assists the court to have access to all available and relevant matters which may affect sentence and protects the court from any errors which may have to be remedied on appeal or review. He should be aware, for example, of any legal limitations on sentence, and of recent sentencing guidelines.
There are obvious ways in which the prosecutor discharges his duty to lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution. At a contested trial the prosecution calls all the relevant evidence in order to discharge the burden of proving the case and thereby provides the sentencer with the factual material which may aggravate or mitigate the sentence.
On the plea of guilty the prosecutor will address the court to provide a proper presentation of the facts of the case. On conviction, he tells the court of the accused's antecedents, and must ensure that these are up to date. He also has a duty to deal with appropriate compensation, forfeiture and restitution matters which may arise on conviction.
That the Basic Law recognises the rights of an accused to a fair trial, to trial without undue delay, and to be presumed innocent, emphasises the continuity of the legal traditions by which the HKSAR sets such store.
In 1997, 78.1% of the cases prosecuted in the Court of First Instance resulted in convictions. In the District Court the corresponding figure was 76.1%. The corresponding figure in the Magistrates Court was 72.7%.
Role of the Prosecution in the Appeal Process
When there is an appeal against conviction, the duty of the prosecutor is to assist the court as required to achieve a just disposal of the appeal. Although the prosecutor will generally seek to uphold a conviction, if he has formed the view that the appeal should succeed he should acquaint the court with that view and explain the reasons for it. If the court disagrees with him, the prosecutor is entitled to adhere to his view and is not obliged to conduct the appeal in any way which conflicts with his own judgment. At the same time it remains the prosecutor's duty to give assistance to the court if requested to do so.
Where an accused appeals against sentence, the prosecutor should be in a position to assist the court as required. This may involve drawing its attention to the relevant sentencing guidelines. The prosecutor should not seek to place before the court 'comparables', that is, judgments which might bear some similarity to the case under consideration, but which ultimately turn on their own facts. He should also, if required, be in a position to address the court on the prevalence of the offence, on the customary range of sentences for a particular offence, and to provide accurate statistics.
It is no part of the prosecutor's function on appeal to seek to uphold a sentence which he considers to be manifestly excessive, wrong in principle or not authorized in law. Equally, the prosecutor should, if required, indicate why the prosecution feels that the sentencer has achieved a fair and just result in all the circumstances. The prosecutor must be in a position to assist the court as to its powers in disposing of the appeal.
The Department of Justice is committed to providing the people of the HKSAR with an independent, effective, fair and just prosecution service. In order to promote public confidence in the administration of justice, the highest ethical and professional standards are applied to instituting, and where necessary terminating, proceedings without fear or favour. The Department strives for excellence, efficiency and effective communication with law enforcement agencies, the courts and other entities within the criminal justice system. In its dealings with the public the Department is open and honest, and prosecutors are required to show sensitivity and understanding to victims and witnesses, and to treat all accused fairly. Prosecutors should act with integrity and objectivity, and exercise sound judgment, with confidence.