Hong Kong prosecutors upholding professional values in turbulent times

In public prosecutions, transparency is always welcome, and this is now acknowledged throughout the common law world. The more prosecutors are able to tell the community about their operations, the fewer misconceptions there will be. In recent times, when false accusations of political bias have been leveled against prosecutors, it has become more important than ever for them to explain the way in which they discharge their responsibilities. The public needs to know more about the decision-making process, and to understand how cases are handled once they get to court.

Since 1998, therefore, the Department of Justice's Prosecutions Division has produced a yearly review of its work for the Secretary for Justice, which is accessible both locally and internationally, and has been widely applauded. It explains prosecution policy, provides an overview of the Division’s activities, and discloses statistical information of interest to the public. It not only gives a valuable insight into various aspects of prosecutorial activity, but also indicates how prosecutors interact with the law enforcement agencies, the legal profession and the courts, as the latest report exemplifies.

Issued on December 31, "Prosecutions Division 2019" describes a particularly eventful year in the life of the Division, and one in which its prosecutors came under global scrutiny. Although this was only the second year in office of the Secretary for Justice, Teresa Cheng Yeuk-wah, she suddenly found her mettle, and that of her prosecutors, tested in a way which would have been unimaginable when she assumed office in 2018. After urban warfare erupted on June 9, 2019, Cheng and her team worked closely with the police to uphold criminal justice, and to defend the city from those bent on its destruction. The new report sheds light on how prosecutors responded to their unprecedented challenges, and what they did to maintain the rule of law.

In his introductory letter to Cheng, the outgoing Director of Public Prosecutions, David Leung Cheuk-yin, explains how, during the social unrest, prosecutors were "tested in terms of the soaring number of sensitive and complicated cases", and he says they rose to the challenge with "unfailing professionalism". Indeed, prosecutors provided no less than 12,225 legal advices to government bureaux and law enforcement agencies, which sounds prodigious, albeit slightly down on the figure for 2018. Of all the requests for legal advice they received, 91.2 percent were responded to within 14 working days, which was no mean feat, given that they were working under great pressure.

The Division faced huge strains in 2019, not least because the violence on the streets was sustained, widespread and organized, and there were many arrests. However, prosecutors proved they could handle not only the public order cases, but also those arising within their other portfolios, including general crime, fraud and corruption

Quite clearly, the Division faced huge strains in 2019, not least because the violence on the streets was sustained, widespread and organized, and there were many arrests. However, prosecutors proved they could handle not only the public order cases, but also those arising within their other portfolios, including general crime, fraud and corruption. The accusations that the Division was in any way "delinquent" in its processing of protest-related cases receive short shrift. They were, says Leung, “unfounded”, and made without a proper understanding of how things work.

In fact, we learn, specialist prosecutors held urgent cases conferences with the police in public order cases when necessary, and provided expedited legal advice when required. Cases were only prosecuted if there was a reasonable prospect of conviction on the available evidence, and if a prosecution was in the public interest. If these criteria were satisfied, charges were formulated "as soon as practicable", in order to get the suspects, some of whom were in custody, before the courts without undue delay.

Once a defendant appeared at court for the first time, it was, we are told, invariably necessary for prosecutors to seek an adjournment. This enabled the police to complete their investigations, and gave prosecutors the time they needed to finalize the charges and decide on the venue of trial. This, of course, often involved prosecutors spending many hours watching videos of riots and other street disturbances, evaluating the evidence and deciding the way forward. Since prosecutors are also required to disclose unused material to a defendant’s lawyers if it might assist them, they also had to carefully assess all the documents the police submitted to them, which was invariably time consuming, and make an informed decision as to what to disclose.

Once a case finally gets underway, the report highlights the prosecutor’s duty to ensure that the defendant receives a "fair trial". This involves "presenting the evidence in court proceedings fairly and comprehensively and assisting the court with all relevant principles". As Leung points out, the prosecutor is duty-bound to behave like a "minister of justice", not obsessed with securing a conviction at all costs, but with ensuring there is a just outcome. The function of the prosecutor, he stresses, is to "prosecute, not persecute", which confirms that the Division adheres to international norms.

An illuminating part of the report is always the statistical information, concerning the outcome of trials and appeals, and this year’s is no exception. Whereas the overall conviction rate, combining guilty and not guilty pleas, was 90 percent in the Court of First Instance, and 92.9 percent in the District Court, the corresponding figure in the Magistrates Courts was lower, at 68.3 percent, which will require attention. That said, the overall figures are positive, as they demonstrate that most cases which proceeded to trial were meritorious, and that the decisions reached by prosecutors were soundly-based.

Conviction rates in the Magistrates Courts, where most cases are tried, are traditionally lower than in the other courts. However, only 54.6 percent of cases which went to full trial in 2019 resulted in convictions, down from 57.5 percent in 2018, and this will need to be improved. The Division may, for example, wish to consider reducing the number of cases briefed out to junior lawyers in the private sector to prosecute, given the inexperience of many of them. Anything that can be done to enhance the standards of prosecution, most obviously by ensuring that the bulk of trials are handled by the Division’s own highly-trained Court Prosecutors, will be welcome. This, after all, was the position until several years ago, when their wings were clipped, in an unfortunate attempt to pander to the Bar Association, which wanted more work for its members. In consequence, however, standards have fallen, and the decline must be reversed. The Division, of course, is not a charity, and, in the public interest, it must ensure that its cases are only ever conducted by prosecutors of the right quality.

In the Court of Appeal, there were 238 appeals by convicted persons, of which only 47 succeeded, with 191 dismissed. Of the four reviews of sentence brought by the Secretary for Justice, on the basis of undue leniency, three were successful. In the Court of First Instance, there were 433 appeals by people convicted in the Magistrates Courts, of which 107 succeeded, with 326 dismissed. These figures, therefore, point to the fact that the bulk of persons convicted at trial were properly convicted, always remembering as well that many of the successful appeals only involved sentence.

Anybody interested in public prosecutions, or wanting to know how prosecutors handle challenges, or concerned by malevolent criticisms of prosecutors, should read this report. The Division was sorely tested in 2019, but it proved its worth, and its professionalism shines out from these pages. Although one or two prosecutors let the side down, every organization has its duds, and they have hopefully been neutralized. By adhering to prosecutorial standards, coping with a vast workload, and remaining focused when the rule of law was under threat, the Division, with Cheng’s guidance, contributed greatly to the survival of Hong Kong in 2019. For that, we must all be grateful.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.