| The role of the Prosecutions Division is to prosecute trials and appeals on behalf of the HKSAR, to provide legal advice to law enforcement agencies upon their investigations, and generally to exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR. In addition, counsel in the division provide advice and assistance to government bureaus and departments in relation to any criminal law aspects of proposed legislation.
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Description
The prosecution of offences A criminal case may be prosecuted in the Magistrates’ Courts (for relatively minor offences) or in the District Court or the Court of First Instance where the offence is more serious. The decision whether or not to prosecute, and on what charges, is taken by the Secretary for Justice or by counsel acting on behalf of the Secretary in the Prosecutions Division. The Secretary is ultimately responsible for all prosecution decisions. In the decision-making process, the prosecution policy guidelines (which were first published in 1993 and updated in 1998, 2002 and 2008) are applied.
The majority of prosecutions in the Magistrates’ Courts are conducted by public prosecutors, called Court Prosecutors. They are appointed by the Secretary for Justice under section 13 of the Magistrates Ordinance (Cap 227) and have rights of audience in the Magistrates’ Courts. Every Court Prosecutor attends an initial nine-month training course run by counsel in the Department of Justice before starting work. Throughout their careers thereafter as Court Prosecutors, they will participate in a programme of continuing legal education.
Counsel in the Prosecutions Division will sometimes prosecute in the Magistrates’ Courts, particularly in cases of significance or where complex points of law are expected to arise. Counsel in the division handle almost all appeals, the majority of prosecutions in the Court of First Instance, and a considerable number of cases in the District Court. Counsel from the private bar and solicitors in private practice are regularly employed to prosecute on behalf of the division (referred to as a counsel or solicitor "on fiat").
Before a case goes to trial, there is considerable work to be done by counsel in the division in marshalling and evaluating the evidence and carrying out any necessary legal research. While some counsel in the division specialise in presenting cases at trial, or on appeal, other counsel appear in court less often and instead specialise in the vital work of preparing cases for trial in either the District Court or the Court of First Instance.
Commercial
crime Formed in 1984, the Commercial Crime Unit advises the Commercial Crime Bureau of the Hong Kong Police on combating syndicated and complex fraud. The unit also assists the Independent Commission Against Corruption in its investigations into private and public sector corruption, and conducts its prosecutions. Cases conducted by the unit typically concern frauds which involve losses of at least $5 million, or which require expert advice in light of their sophistication. The unit contributes much to the reputation which Hong Kong enjoys as a safe business environment which is intolerant of corruption.
Computer crime The internet is widely used in Hong Kong and criminal activities involving the use of a computer have risen in recent years. Computer and internet crimes embrace a variety of offences. These include fraud, “phishing”, pornography, criminal damage, access to a computer with dishonest intent and copyright infringement. Technology crimes frequently transcend national boundaries.
While law enforcement agencies are responsible for the investigation of such crimes, prosecutors in the Department of Justice provide the legal back-up required for the enforcement of the law in this area.
To make a reality of the commitment to take firm action on this front, a Prosecutions Division counsel was designated as Prosecution Policy Co-ordinator on Computer Crime in 1999 to head a team of specially trained specialist counsel. The team is responsible for the provision of expert legal advice on technology crime and for the conduct of related prosecutions. It also co-ordinates legal action in the HKSAR and promotes co-operation at the international level.
Copyright crime A Prosecutions Division counsel was designated as Prosecution Policy Co-ordinator on Intellectual Property in 1998. This counsel heads a team of specialist counsel who advise the Customs and Excise Department on cases of copyright infringement and false trade descriptions, and conducts the prosecutions which result. The division has enhanced the capacity of its existing specialist team to prosecute intellectual property cases through redeployment and training, and through liaison with prosecutors from other jurisdictions.
Obscene
articles and child pornography The Prevention of Child Pornography Ordinance (Cap 579) was enacted in December 2003, and gave effect to the United Nations Convention on the Rights of the Child. A Prosecution Policy Co-ordinator was subsequently appointed to handle cases arising from this Ordinance and the Control of Obscene and Indecent Articles Ordinance (Cap 390), as well as to advise the Television and Entertainment Licensing Authority on the status of objectionable material and to conduct proceedings before the Obscene Articles Tribunal. Since 2004, priority has been given to the effective application of Hong Kong's new anti-child pornography legislation, and the promotion of public understanding of its ambit.
A bilingual prosecution system Until 1997, all proceedings in the High Court (now the Court of First Instance) were conducted in English. Following necessary amendments to the Jury Ordinance (Cap 3), on 29 July 1997 the Court of First Instance heard the first criminal case conducted in Chinese. Since then, an increasing number of trials have been conducted in Chinese where it is agreed that this is the most convenient language for all concerned. In the Magistrates’ Court, the majority of cases are now dealt with in Chinese, while a significant number of criminal appeals have also been heard in Chinese in the Court of First Instance and the Court of Appeal.
With the aim of achieving a fully bilingual prosecution system, the division's Bilingual Court Documents Unit arranges for the translation of court documents into Chinese. This ensures that all criminal cases can be heard in either English or Chinese. Bilingual charge sheets, advising the defendant of the precise charges against him, have been provided for all criminal cases heard in the District Court since 1 August 1995. Bilingual indictments have been provided in respect of all criminal cases brought before the Court of First Instance since 2 November 1995. Bilingual summaries of facts (which describe how the particular offences were committed) are now available for all trials which are listed to be heard in Chinese in the District Court. Whenever cases are heard in Chinese in the District Court or the Court of First Instance, the unit provides Chinese versions of all court documents, including immunities, admitted facts and notices to the defence. For appeals in Chinese to the higher courts, court documents in Chinese are filed. The unit also translates important judgments.
Appeals The division's Appeals Sub-division has responsibility for all appeals and reviews of sentence. Counsel conduct, prepare and advise on appeals from all trial courts to the Court of Appeal and the Court of Final Appeal. Applications to the Court of Appeal to review sentences are usually only made by the Secretary for Justice if it is apparent that the sentence is wrong in principle or manifestly inadequate, or contrary to law. The review procedure also gives the Court of Appeal the opportunity to establish or amend sentencing tariffs or guidelines for certain offences, thus promoting uniformity and continuity in sentencing and assisting the lower courts.
Significant initiatives and reforms in 2008 and 2009
Criminal justice initiatives
Throughout 2008 and 2009, the division sought to enhance the quality of criminal justice available to the community, and prosecutorial techniques were kept under review. Specific criminal justice initiatives pursued by the division included:
- the compilation of a manual on disclosure for the guidance of prosecutors
- the introduction of a manual on advocacy to enhance the preparation and presentational skills of prosecutors engaged in the conduct of criminal cases
- the implementation of measures to fast-track cases of domestic violence and the issuing of guidelines to prosecutors on the handling of these cases
- the introduction of guidelines for expediting juvenile offender cases
The division supported the work of the Law Reform Commission by joining a number of its sub-committees dealing with criminal law issues. These included:
- the review of common law and statute law governing sexual and related offences
- the consideration of the rule against double jeopardy
- the examination of the criminal liability of parents or carers for causing or allowing the death of a child or vulnerable adult
- the use of hearsay evidence in criminal proceedings
- the criteria for service as jurors
Information source: Departmental
Review - "Department of Justice 2010"
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