a modern prosecution service - doj.gov.hk · • revised sentencing guidelines for serious ......
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2005 �� 653 �)�
Article 63 of the Basic Law provides that the
Department of Justice shall control prosecutions, free
from any interference. The duty of the prosecutor is
to take the decisions he believes to be right, regardless
of criticism, actual or potential. Throughout 2005,
the Prosecutions Division operated within the
parameters of its published prosecution guidelines,
and determined where the interests of justice lay in
each case. Prosecutors also proceeded with restraint.
Where possible, prosecution was used as an
instrument of last resort. Alternatives to prosecution
were pursued where appropriate.
In the decision-making process, the Division applies
The Statement of Prosecution Policy and Practice,
which was issued in 2002. Throughout criminal
proceedings, the prosecutor acts in the interests of
justice. His role is crucial to the fairness of any trial.
The prosecutor must properly advise the investigator,
adequately assist the defence, and fairly present the
case at court. When in December the DPP addressed
the Asia-Europe Prosecutors General Conference, in
Shenzhen, he said that ’it is the prosecutor who is
able to supply the perspective which the courts
expect of those who are concerned with the due
administration of criminal justice.’
In 2005, the Division upheld the practices of the
common law world. No one was prosecuted unless
there was at least a reasonable prospect of
conviction, and the prosecution was in the public
interest. The consequences of prosecution can be
far-reaching, and a decision to prosecute should only
be taken after the evidence and the circumstances
have been carefully evaluated. After a prosecutorial
decision was challenged in January, Mr Stanley
Chan, SADPP, explained that prosecutors had to ’act
in accordance with the existing law, our prosecution
policy and on the basis of hard evidence.‘
Prosecution Policy was applied in a manner which
was fair, open and just. In all they did, prosecutors
represented the public interest. Through its policy
of transparency the Division reached out in 2005 to
the community it served, and sought its trust.
2005�� !" PROSECUTION POLICY IN 2005
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Prosecutors recognised that their
position had to be grounded in public
confidence, and that decisions must be
justifiable. When a decision not to
prosecute was queried in Apri l ,
Miss Agnes Chan, SGC, told the
Magistrates Court that ‘if there is
insufficient evidence to give rise to a
reasonable prospect of conviction, then
the suspect should not be charged’
(KCMP 653 of 2005).
Equality of treatment lies at the heart
of prosecution policy. The differential
conduct of cases against suspects
erodes public confidence. After it was
suggested that two mainland officials
had violated the law with impunity,
Mr John Reading, SC, DDPP, assured the
Security Panel of the Legislative Council in January
that ‘irrespective of the identity of people coming to
Hong Kong, they are expected to follow the laws of
Hong Kong.’ At the same time, equality does not
require every case to be identically processed.
Prosecutors must consider the personal situation of
the suspect, the aggravating and mitigating features,
and the views of the victim. Equality connotes an
absence of arbitrariness, hence the published
prosecution guidelines.
Those who conduct prosecutions bear a heavy
responsibility. Their task is to seek the conviction of
those who are truly guilty, and to ensure that
proceedings do not miscarry. Prosecutors must be
professional and firm. The highest of ethics are
required, even if acquittals result. When in May he
addressed the seminar for new fiat counsel, the DPP
emphasised that ‘the prosecutor must act as a
minister of justice, presenting the evidence fairly,
making full disclosure of relevant material, and ever
conscious that prosecution must not become
persecution.’
After controversy erupted in May when a judge
accused the prosecution of bad faith in not making
full disclosure to the defence ([2005] 3 HKC 1), the
DPP said prosecutions must always be conducted in
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Miss Agnes Chan, SGC : a suspect should not
be charged without a reasonable prospect of
conviction.
2005�� !" PROSECUTION POLICY IN 2005
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‘complete good faith’, and established a Board of
Inquiry. That arose after the existence of earlier
surveillance operations by investigators was not
revealed to the defence when a supermarket was
prosecuted for selling pork of suspect provenance.
When the Board of Inquiry reported in October, it
found that prosecutors and investigators had acted
throughout in good faith, although errors of
judgment had been made. Recommendations to
tighten procedures were made, and these were
accepted by the Division.
Whenever their posit ion was
challenged, prosecutors stood firmly
by the decisions they believed to be
right. That prosecutors do not
accede to pressure or criticism from
any quarter is fundamental to the
rule of law. When a politician
suggested in July that prosecutors
had shown favouritism in deciding
not to prosecute another politician
for alleged criminal misconduct, the
DPP said the imputation was
‘scurrilous, and ought never to have
been made.’ He added that ‘no
suspect should be prosecuted unless
there is a reasonable prospect of
conviction. Mere suspicion falls well
short of the required standard.’
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�� !"# CRIMINAL JUSTICE INITIATIVES
In 2005, the Prosecutions Division continued to
develop the quality of criminal justice available to
the community. In their first full year of operation,
divisional initiatives on the treatment of victims of
crime and witnesses, on the engagement of expert
witnesses, and on the avoidance of miscarriages of
justice were monitored and yielded solid results.
When he met the media on 14 April 2005, the DPP
said the mission of the Division was to be ‘active in
pursuit of a better criminal justice system.’
In order to reshape attitudes, practice and culture
amongst the law enforcement agencies, prosecutors
conducted a series of seminars for frontline
enforcement personnel. These were designed to
heighten awareness of potential problems in the
course of investigation, to enhance standards of case
preparation, and to reduce the scope for impropriety.
In order to develop joint standards based on
professionalism, integrity and the principle of legality,
closer liaison with law enforcers at the senior level
was also pursued.
In exchanges with law enforcement agencies,
consideration was given to :
• improved procedures for the disclosure of unused
material
• better arrangements for the handling of informers
• revised sentencing guidelines for serious offences
• deployment of covert surveillance techniques
• greater consistency of approach in the charging
of aged suspects
• enhanced forensic account support services
• updated committal procedures for Court of First
Instance cases
• greater co-ordination over suspects charged
separately by different agencies.
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All aspects of the Division‘s portfolio were subject to
critical review throughout the year. In consequence,
specific measures were adopted. These included
guidance on :
• the preparation and presentation of criminal
appeals
• the priority to be given to vulnerable witness cases
• the award of costs in criminal proceedings
• the preservation of the anonymity of victims of
blackmail
• the use of search warrants on law premises and
the issue of legal professional privilege.
In August, prosecutors and police reached consensus
over the retention of case exhibits for at least twenty
years after convicted cases conclude. This initiative
was recommended in 2003 by the Heads of
Prosecuting Agencies Conference (HOPAC), and will
facilitate ex post facto reviews of the safety of
convictions in light of advances in forensic science.
On the advice of prosecutors, police will retain
specific exhibits in serious criminal cases, such as
homicide and rape.
During 2005, the Division updated its Prosecution
Manual. Prosecutors liaised with law enforcement
agencies to modernise their internal disclosure
guidelines. The Criminal Appeals Bulletin alerted
prosecutors to new case law. Fiat counsel were
updated on latest developments to maintain the
standards of prosecution. Throughout the year,
modernisation was a recurrent theme of our agenda.
�� !"# CRIMINAL JUSTICE INITIATIVES
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- 2002�2007�� !"#$
‘ We envisage a modern prosecution service working
decisively and imaginatively in all areas of
prosecutorial responsibility to enhance the quality
of criminal justice which is on offer to the
community.’
- Strategic Plan 2002-2007
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The Prosecutions Division submitted its Strategic Plan
2002-2007 to the Secretary for Justice in September
2002. Its purpose is to identify the priorities and
targets of the Division over the five-year cycle, and to
indicate how these will be achieved. The Strategic
Plan envisages ‘a modern prosecution service working
decisively and imaginatively in all areas of
prosecutorial responsibility to enhance the quality of
criminal justice which is on offer to the community.’
The implementation of the Strategic Plan is
monitored by the senior directorate. The half-way
point in its lifespan was reached in March 2005. In
his progress report to the Secretary for Justice, the
DPP advised that most of the objectives had been
achieved in the first 21/2 years. He explained that all
areas of the Division‘s activities remained ‘subject to
periodic review in order to ensure that modern
thinking is applied, that latest techniques are
deployed, and that highest levels of professionalism
are achieved.’
Each of the four Sub-divisions contributed in 2002-
2005 to the fulfilment of the Strategic Plan :
Sub-division I (Management, Trial Preparation,
Summary Prosecutions), developed modern
management approaches, enhanced case
preparation procedures, and secured better
arrangements for victims and witnesses
Sub-division II (Court Specialists and Organized
Crime), enhanced trial presentation, promoted
prosecutorial ethics, and increased co-operation with
law enforcement agencies
Sub-division III (Appeals), developed appellate
advocacy, promoted best practice in appeal
preparation, and heightened awareness of legal
developments
Sub-div is ion IV (Fraud and Corrupt ion) ,
strengthened its capacity to prosecute commercial
crime and corruption, and widened liaison both
locally and abroad to counter transnational crime.
2002� 2007�� !"#$ STRATEGIC PLAN 2002-2007
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The Strategic Plan recognises the importance of
international co-operation in the combat of crime. It
therefore commits the Division to :
• work with the International Association of
Prosecutors
• liaise with the Asia Crime Prevention Foundation
• assist global initiatives to enhance criminal justice
• develop regional anti-crime strategies
• promote contacts, exchange ideas, share
experiences
• provide speakers, panellists and facilitators at the
international level.
In order to project its influence and standing at the
international level, the Strategic Plan commits the
Division to bidding to host the Annual Conference
and General Meeting of the International Association
of Prosecutors in Hong Kong. This was duly achieved
in August 2005. In consequence, the International
Association of Prosecutors will assemble in Hong
Kong in September 2007.
In a message to coincide with the release of the Half-
way Report of the Strategic Plan, the DPP told the
Division on 3 May 2005 that solid and imaginative
progress had been made in all key areas to implement
its Action Plans. This would help ‘to modernise our
prosecution service and to advance its position.’ The
DPP complimented prosecutors upon their efforts in
making a reality of the Strategic Plan.
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Mr Darryl Saw, SC, DDPP, Head of Appeals : the development of
appellate advocacy.
2002� 2007�� !"#$ STRATEGIC PLAN 2002-2007
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The Prosecutions Division in April released to the
public The Code of Practice for Expert Witnesses
Engaged by the Prosecution Authority (‘The
Code’). Its preparation was a major project of the
Division in 2003-2004. The Code was produced
after a comprehensive consultation exercise with
the legal community and interested parties. That
followed concerns over the quality of expert
testimony in criminal cases.
At a time when so much crime is advanced and
technical, the role of the expert in assisting the trier
of fact is crucial. He must be fair and impartial, and
not simply the representative of the prosecution or
the defence. When the DPP met the media in open
session on 14 April 2005 to explain the rationale of
The Code, he emphasised that ‘the expert is not a
hired gun acting at the behest of one or other party,
but a professional whose duty it is to contribute to
the attainment of justice.’
The Code identifies the standards of practice required
of those to whom it applies. It contains a framework
of rules and duties in an area where this was lacking,
and places the emphasis upon professionalism. The
duty of the expert is to help the court on matters
within his area of expertise. The Code highlights
the duty of the expert to disclose relevant
information. It is a practical document which also
sets an appropriate tone for those to whom it applies.
Any expert engaged privately by the prosecution
must agree to be bound by The Code as part of his
terms of engagement. It applies to any such expert
engaged to :
• provide a report and/or witness statement as to
his opinion for use as evidence in criminal
proceedings, or
• give opinion evidence in criminal proceedings,
or
• inquire into and report on an issue as a court
appointed expert.
�� !"#$ CODE FOR EXPERT WITNESSES
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The Code emphasises that the expert witness :
• has an overriding duty to assist the court
impartially on matters relevant to his particular
expertise
• has a primary duty to the court and not to the
person who retains him
• is not an advocate for a party but a seeker of the
truth.
After a commentator queried whether The Code was
sufficiently comprehensive, Mr John Reading, SC,
DDPP, told the Hong Kong Lawyer in
June that ‘The Code is a criminal justice
initiative designed to improve our system.
Other jur i sd ic t ions have s imi la r
instruments, in relation both to criminal
and civil proceedings, and there is no
reason for Hong Kong to be left behind.
As prosecutors, we are determined to
ensure that experts in local courts abide
by the highest of standards.’
The introduction of The Code was
welcomed by the Academy of Experts,
and others. In its first full year of
operation, it acquired broad acceptance
and contributed to enhanced standards
in criminal cases. The operation of The
Code is subject to our periodic review.
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Mr Harry Macleod, DDPP, explains a point to the media at the launch of The Code for
Expert Witnesses on 14 April 2005.
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�� !"#$%& STANDING COMMITTEE ON DISCLOSURE
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Every accused has the right to a fair trial. This requires
the prosecution to observe its disclosure obligations.
The general duty of the prosecution is to disclose to
the defence the evidence it proposes to rely upon at
trial. Also disclosable is relevant material which might
undermine the prosecution case or advance the
defence case. The law of disclosure is always
evolving and sometimes problematic.
The Standing Committee on Disclosure, chaired by
Mr Patrick Cheung, SADPP, was established in 2004.
Its mandate is to keep the disclosure arrangements
of the Prosecutions Division under periodic review.
The Standing Committee reports biannually to the
DPP, in light of local developments and international
practices. It also undertakes ad hoc projects.
In 2005, the Standing Committee advised the DPP
on :
• treatment of intercepted material
• use of special advocates
• material possessed by third parties
• crime and legal professional privilege
• public interest immunity.
In mid-year, the Standing Committee reviewed the
disclosure arrangements used by the police, the ICAC
and the Customs and Excise Department. Existing
guidelines were updated, and special guidance was
provided for other departmental prosecution
services. In exchanges with law enforcement
agencies, the Standing Committee emphasised that
the non-disclosure of relevant material could cause
trials to miscarry and lead to unsafe convictions.
After the Court of Appeal in May stayed the
prosecution of a supermarket accused of selling
unauthorised pork because of material non-
disclosure by the prosecution, the DPP instructed the
Standing Committee to review the case ([2005] 3
HKC 1). When it reported in July, the Standing
Committee concluded that although existing
prosecution guidelines upon disclosure were clear
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The Standing Committee on Disclosure : Mr Patrick Cheung, SADPP,
Chairman, Ms Vinci Lam, SGC, Secretary, (left) and Miss Winnie
Lam, GC, Research Assistant.
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and comprehensive, they had not been applied as
required. It made a series of proposals to strengthen
the arrangements already in place, and these were
accepted by the DPP.
In its Report, the Standing Committee recommended
that :
• specially-tailored guidelines on disclosure for
prosecuting departments should be prepared
• departmental prosecutors should be reminded of
the ambit of the duty of disclosure
• increased emphasis should be placed on disclosure
requirements in training courses for departmental
prosecutors
• biannual discussions on disclosure obligations
should occur between the DPP and the Heads of
Departmental Prosecution Services
• regular updates to departmental prosecutors on
disclosure developments should be issued.
Throughout 2005, the Standing Committee ensured
that the Division‘s disclosure procedures remained
modern and just, and attuned to international
norms. Where reform was necessary, the way
forward was identified. In response to media
questioning in May, the DPP emphasised that the
proper conduct of cases required ‘the full and timely
disclosure of all relevant material.’
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�� !"#$% INTERNATIONAL ASSOCIATION OF PROSECUTORS
The International Association of Prosecutors (IAP) is
the first and only world organisation of prosecutors.
It is committed to the promotion of high standards
of criminal justice and to the development of close
co-operation amongst prosecutors. The IAP has
special consultative status with the Economic and
Social Council of the United Nations, and is
associated with the Council of Europe and the Asia
Crime Prevention Foundation.
The Prosecutions Division became the 75th
organisational member of the IAP in 2001. Since then,
the Division has played a full part in its affairs, and
contributed to IAP projects at both regional and
international levels. In 2005, the Division participated
in the initiative to establish a documentation databank
for the IAP, containing data from all jurisdictions where
the IAP has organisational members.
The IAP promotes the effective, fair and impartial
prosecution of criminal offences. Its ‘Standards of
Professional Responsibility and Statement of the
Essential Duties and Right of Prosecutors’ constitute
an international benchmark for the conduct of
individual prosecutors and of prosecution services.
These provide guidance to prosecutors in Hong
Kong, and are incorporated into our prosecution
policy guidelines.
From the Executive Committee of the IAP, Mr Daniel
Bellemare, MSM, QC, Assistant Deputy Attorney
General (Criminal Law), Canada, and IAP Vice-
President, visited Hong Kong in November. He was
briefed by the Division upon all facets of public
prosecutions in the jurisdiction. Mr Bellemare, in
turn, lectured senior prosecutors upon ‘Democracy
and the prosecution process.’ The need for the
prosecutors of the world to share experiences and
to co-operate was recognised in exchanges
throughout the visit.
From 25 to 27 November 2004, the Division hosted
the 2nd Asia and Pacific Regional Conference of the
IAP, at the Hotel Miramar, Kowloon. In its Newsletter
28, in February, the IAP acknowledged ‘the excellent
arrangements which led to the overall success of
the conference.’ At the 10th Annual Conference
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Mr John Reading, SC, DDPP, addresses the International
Association of Prosecutors, in Copenhagen, on 1 September 2005 :
supporting IAP projects at regional and international levels.
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and General Meeting of the IAP, in Copenhagen,
Denmark, the DPP, on 29 August, on behalf of the
Division, and in recognition of its ‘work in pursuit of
the objects of the Association’, received the Certificate
of Merit from Mr Nicholas Cowdery, AM, QC,
President of the IAP.
In mid-year, the DPP submitted to the Secretariat of
the IAP in The Hague the Division‘s bid to host the
Annual Conference and General Meeting of the IAP
in Hong Kong in 2007. In support of the bid, the
DPP wrote that ‘Hong Kong is an extraordinary city
in many ways, and combines the best of east and
west. It has a fascinating history and a bright future.
Hong Kong has a prosecution service which is
modern, transparent and just. In recent years, close
ties have been established with the prosecutors of
the world.’
After its meeting in Copenhagen in August, the
Executive Committee of the IAP announced that the
12th Annual Conference and General Meeting of
the IAP would convene in Hong Kong from 16 to
20 September 2007. The venue of the conference
would be the Hong Kong Convention and Exhibition
Centre. The DPP advised the IAP that ‘Our
prosecutors stand ready to do all they can to provide
the IAP with a warm welcome, a memorable visit
and a successful conference in 2007.’
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The DPP receives the Certificate of Merit of the International Association of
Prosecutors from IAP President Mr Nicholas Cowdery, AM, QC, in Copenhagen,
on 29 August 2005 : pursuing the objectives of the Association.