Article 63 of the Basic Law provides that the Department of Justice “shall control criminal prosecutions, free from any interference”. Since the Secretary for Justice heads the department, this has been interpreted as meaning that, constitutionally, he or she has ultimate responsibility for public prosecutions. This, in any event, is how it was interpreted by the Department of Justice in 2011, and by the Bar Association in 2015. This interpretation, however, has left the department exposed to criticism, and now is as good a time as any to revisit the position.
As the Civic Party and its allies know full well, there are various ways of undermining public confidence in the legal system. One obvious means, which they have often deployed in recent weeks, is to accuse police officers of using excessive force, whenever they have tried to control the mobs who have attacked them with bricks and metal rods, or thrown Molotov cocktails at their lines, or attacked their homes.
Another technique is to accuse prosecutors of political bias whenever they decide that the evidence is sufficiently strong to justify prosecuting the rioters. Although these allegations are not always easy to rebut, they should never be made in the absence of evidence. This, of course, is always lacking.
Secretary for Justice Teresa Cheng Yeuk-wah has established a dedicated team of experienced prosecutors to handle all the riot cases, under her overall supervision, and they are now providing consistent and reasoned advice in accordance with established prosecution policy. This means, therefore, that prosecutions are only being authorized in cases where the evidence discloses a reasonable prospect of conviction, and where they are in the public interest. Of course, given the high levels of violence used by the rioters and the blatant threats to life and limb, it is obviously in the public interest that those responsible are not only prosecuted, but prosecuted on the most serious charges.
After all, apart from the rioting itself, there has been wanton violence and injury, massive criminal damage, and a blatant disregard for public safety. Two bomb factories have, moreover, also been located, one even containing 2 kilos of TATP (triacetone triperoxide), the explosive of choice used by terrorists around the world to commit atrocities, as in London (2005) and Paris (2015). Quite clearly, evidence permitting, such crimes cry out for prosecution, and politics has absolutely nothing to do with the decisions taken. Indeed, it would be a dereliction of duty if Cheng’s dedicated team did not prosecute those it considers responsible.
If, moreover, these alleged prosecutors have any solid evidence to show that the prosecution process has been subverted, and they do not want to disclose it to the police, they can instead reveal it to the judge at trial, who can then terminate the proceedings. However, nobody should hold their breath, as this all appears to be part of an elaborate fantasy cooked up by people with ill-intentions to undermine the department at a critical time, and alarm the public
Although an anonymous letter has now emerged, in which several alleged prosecutors accuse Cheng of political interference in the prosecution process, this is apparently a hoax. It is, of course, not difficult for ill-intentioned people to get hold of Department of Justice letter paper, and to use it to malign honest prosecutors. In the unlikely event that the letter was in fact drafted by some rogue prosecutors, they should at least have the guts to identify themselves, and to disclose the basis of their allegations.
After all, to bring prosecutions which are not justified, for spurious reasons, may well amount to perverting the course of public justice, a serious criminal offense, and should be reported to the police. However, since the alleged prosecutors have, apart from throwing some calumnies around, done nothing significant, it is a safe bet that they have no evidence whatsoever to substantiate their allegations, and only want to damage the reputation of their own department. Such, of course, has been the modus operandi of the coward down the ages, and the Civic Party, as scaremongers par excellence, has eagerly lapped it all up.
If, moreover, these alleged prosecutors have any solid evidence to show that the prosecution process has been subverted, and they do not want to disclose it to the police, they can instead reveal it to the judge at trial, who can then terminate the proceedings. However, nobody should hold their breath, as this all appears to be part of an elaborate fantasy cooked up by people with ill-intentions to undermine the department at a critical time, and alarm the public.
Although these allegations are ludicrous, given that Cheng, like her prosecutors, possesses great integrity, similar allegations have also been made on several occasions since 1997, and the real question now is how best to close them down, once and for all.
In 2009, the attorney general of England and Wales, Baroness Patricia Scotland, by means of a memorandum of understanding, voluntarily handed over most of her prosecutorial responsibilities to the director of public prosecutions (DPP). One of the reasons for this was to enable the public to see that an independent chief prosecutor was ultimately calling the shots, and not a minister in the government, as this helps to promote confidence in the prosecution system. This arrangement, which has also been followed in many other common law jurisdictions, has worked well over the past decade, and it has enabled people to see for themselves that, when controversial decisions are being taken, objective prosecutorial criteria are being applied by professional prosecutors, and that people in the government are not involved in the process.
Although it is true that Article 63 vests the control of criminal prosecutions in the Department of Justice, no particular officer in the department is actually designated. Common sense suggests the most suitable person is the DPP. A respectable case can, therefore, be made for saying that Cheng could legitimately decide that, in future, responsibility for public prosecutions should vest in the DPP, as a politically neutral figure.
If, therefore, after necessary consultation, Cheng chose to follow the English paradigm, and to vest the bulk of her existing prosecutorial powers in the DPP, this would go a long way toward ensuring that unfounded allegations could no longer be made against her and her department, or at the very least diminishing the likelihood of this happening. It would also enable her to concentrate on her principal function, as legal adviser to the government. This arrangement has worked well elsewhere, and there is no reason why it should not also work well here.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region government.
HONG KONG NEWS