現代的檢控機關

A Modern Prosecution Service

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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.