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Tuesday, September 22, 2020, 23:57
Public prosecutions office must put its house in order
By Tony Kwok
Tuesday, September 22, 2020, 23:57 By Tony Kwok

In the riot-related trials, some magistrates could have been unfairly criticized for letting out defendants most leniently, in allowing them to be “bound over to be of good behavior” for a nominal sum, normally HK$500 ($65) to HK$1,000, for a set period (six months to a year). The object of the binding-over system is to enable the magistrate to deal with low-level public-order cases in an expedient manner. The initiative in triggering this process can come either from the prosecutor or the magistrate, or as a result of plea bargaining between the prosecutor and the defense counsel.

However, the public was often alarmed over the seemingly illogical handling of some cases in which the defendants were charged with fairly serious offenses such as possession of offensive weapons and even assaulting police officers, but were allowed to be bound over, and the public often criticized the magistrates for being so extraordinarily lenient. As pointed out by Grenville Cross, former director of public prosecutions, our society has a duty to protect police officers from illegal assault, so sentences meted out must have a proportionately deterrent effect.

But as things turned out, the culprits might as well have been the public prosecutor. It has recently been revealed that the Department of Justice has expressed concern, through an internal memo, suggesting that the binding-over system could have been abused. It was said that there had been over 190 riot-related cases involving possession of offensive weapons and assaulting police officers where the case prosecutors had decided to offer no evidence and agreed with the magistrate to allow the defendants to be bound over to be of good behavior.

Apparently, most of these cases were decided by the prosecutors outside the established special prosecutor team set up to handle the riot-related cases — the Public Order Events Team — due to the POET’s excessive workload.

The DOJ has decided to take remedial action by appointing five deputy directors of public prosecutions (DDPPs) to oversee all these cases to try to prevent the prosecutors from ending the cases in such a ridiculously lenient fashion without taking the severity of the offenses into account. With the new supervision system, at least two cases involving possession of offensive weapons saw reversals of the case prosecutors’ decisions to offer no evidence, after the DDPPs looked into the cases and concluded that there was more than enough evidence to press the charges.

Hence the big question is: How many of these 190 cases could have been mishandled? To ease the public’s mind, the DDPPs should now review all of these 190 cases to ascertain whether there was any impropriety, and if so, who was responsible for such obvious travesties of justice and what could their motives have been. Was it due to their incompetence or their political bias in favor of the rioters? Or worse, due to their close relationship with the defendants’ legal representatives? Are those isolated incidents or repeated occurrences by the same prosecutor(s)? All these concerns should be properly addressed to flush out any possible subversive elements in the DOJ. They are there for sure; some were said to have joined the protest march organized by the Bar Association. We can all remember the case where a senior public prosecutor was given permission to publish a book advising people on how to evade police arrest and prosecution. This is outrageous as it is equivalent to a senior officer of the Inland Revenue Department publishing a book giving advice on tax evasion. Clearly, there is a serious supervisory shortcoming at the highest level in the DOJ!

Police and DOJ management should come up with a more effective review system. If any police officer is aggrieved with the case prosecutor’s decision, he can direct his case to an appointed senior police officer who will act as a direct link with the appointed senior DOJ officer to initiate an urgent review. The police commissioner should have a system of regular meetings with the justice secretary and the director of public prosecutions to address any issue affecting the two departments’ collaboration. Such a consultative system had proved its worth between the Independent Commission Against Corruption and the DOJ.

Those in the law enforcement field know perfectly well that a successful prosecution often depends on the competence and attitude of the prosecutor. I remembered in my ICAC days one particularly outstanding prosecutor named Kevin Zervos. He was talented and very aggressive in his defense cross-examination as well as in arguing legal points with the court, and winning most of the time. If the ICAC had to deal with any particularly challenging cases, he was always the first counsel we called upon for help. His superior performance was well rewarded as he is now an honorable High Court judge.

While we now often criticize the magistrates for acquitting many of the riot-related defendants, we should also consider whether the problem might also lie with the prosecutors who adopted a hands-off approach in prosecution due to their personal political affiliations.

When the ICAC was established in 1974, one of the first units the commissioner created was the Internal Monitoring Group, headed by a senior officer equivalent to the rank of police senior superintendent. This demonstrates the importance the commission attached to staff integrity. Thus, it makes sense that the DOJ should set up a similar internal monitoring unit urgently to monitor the performance of the prosecutors and their integrity.

Police have arrested over 10,000 suspects in riot cases, but only 2,000-odd suspects have been prosecuted. Clearly, there is a huge backlog, and justice delayed is justice denied. The DOJ must come up with a speedy plan to boost its POET team, but it is important to select the right candidates.

The other problem with the public prosecutions office is the briefing-out system, where most of the prosecution work is briefed out to private counsels. There are several issues here. Firstly, it is unrealistic to expect the private counsel to fight the cases as vigorously as an in-house counsel when they share no loyalty to the DOJ. Secondly, it is a duplication of effort as the in-house counsel could have spent many hours of work examining the evidence to decide on the prosecution before handing over the case to the private counsel, who will have to study the case afresh. Thirdly, it deprives the in-house prosecutor the opportunity to practice advocacy in court; and fourthly, and most importantly, it would enable the private counsel to learn the inner workings of law enforcement, which could even touch on operational and official secrets, and that could jeopardize law enforcement effectiveness in the future.

The DOJ should now seriously consider abolishing the briefing-out system altogether and conduct a major recruitment exercise to hire competent and loyal public prosecutors.

The resignation of the director of public prosecutions should offer a golden opportunity to select the right person to put its house in order.

The author is an adjunct professor of HKU Space, and a council member of the Chinese Association of Hong Kong and Macao Studies. He is the former head of operations of ICAC and an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily. 

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