The prosecution service plays a pivotal role in the criminal justice system. It is very important that the public has confidence in the prosecuting authority knowing that it serves the community at all times in upholding the rule of law. The prosecuting authority should not aim at achieving a high conviction rate but instead be committed to ensuring that the guilty are convicted and the innocent acquitted. Prosecutors are, therefore, entrusted to take on these responsibilities in a fair manner and in accordance with the law.
Article 63 of the Basic Law of the HKSAR provides that the Department of Justice “shall control criminal prosecution, free from any interference”. This serves as an important constitutional guarantee to prosecutors within the Department that they make decisions to prosecute or not to prosecute in a wholly independent manner without any political, improper or other undue influence.
To facilitate the promotion of fair, efficient and effective administration of justice, the Prosecutions Division has formulated policies and practices to guide and direct prosecutors in conducting prosecutions and to ensure that decisions to prosecute are made consistently and justly. The first set of guidelines called Prosecution Policy – Guidance for Crown Counsel was issued in 1993. Moving on with the time and keeping in line with the development and changes in the law and criminal jurisprudence, there have been subsequent revisions and updates. In September 2013, the Division released its latest edition of the prosecution guidelines bearing the title Prosecution Code.
Apart from serving as a guide for prosecutors, as stated in the introduction of the Prosecution Code, it “also aims to give others a clearer understanding of the approach prosecutors take, and the considerations they employ, in handling prosecutions”. The Prosecution Code is not intended to be an internal set of rules out of reach by the public. Instead, as a modern, transparent and accountable authority, the Department uploaded the Prosecution Code on its website for free public access, enabling the public to know the principles and guidelines that prosecutors should follow in the discharge of their duties.
The decision to prosecute or not is a very crucial one and has wide implications to an individual, an entity, a victim of crime and the community as a whole. Prosecutors in the Department are guided by a two-stage test as set out in the Prosecution Code in deciding whether prosecution should be brought in each case, namely that the evidence available demonstrates a reasonable prospect of conviction and if so, a prosecution is required in the public interest. The same or similar test is applied in other common law jurisdictions. In each case a prosecutor must consider the situation and examine all the relevant factors. Generally, the more serious the case, the more likely it is that a prosecution will be required in the public interest. What constitutes public interest may vary from case to case and often such a decision is not easy to make. The prosecution test is applicable at all stages of the prosecution process and a prosecutor is under a duty to continually review a prosecution that has been commenced.
Prosecutors may, in appropriate cases, agree to deal with offenders who have committed minor criminal offences for the first time by way of a bind over. This will require an offender to admit his or her wrongdoing. A conviction will not be recorded against him or her but he or she will be bound over to keep the peace and/or of good behaviour in reference to specific conditions. The practice has proved to be effective in keeping him or her on the straight and narrow and to steer away from crime. The bind over procedure may be viewed as a rehabilitative measure in its own right and should not be treated as a “let-off”. An offender subjected to a bind over order is liable to criminal sanction for non-compliance with the terms of the order. The Prosecution Coderequires a prosecutor to consider the following factors carefully before taking a decision to agree to a bind over:
At the same time, it is, no doubt, in the public interest that criminals committing serious crime are prosecuted. Throughout the past few years, the Division has successfully prosecuted a number of high-profile cases without fear or favour. Whether or not high-ranking public officials and well-known members of the community are involved, prosecution actions are initiated in accordance with the principled criteria as set out in the established prosecution guidelines and practices.
The people of the HKSAR enjoy the freedom of peaceful assembly, procession and demonstration. There are, however, occasions when the law enforcement agencies have to step in to maintain law and order or to protect the rights and interests of others. In making prosecutorial decisions in relation to offences alleged to have been committed where people are exercising these constitutionally guaranteed freedoms, prosecutors also get guidance from the Prosecution Code. It helpfully reminds prosecutors of the fundamental principles in accordance with which cases related to public order events should be dealt with through highlighting the useful references to the Basic Law, the Hong Kong Bill of Rights and the relevant court decisions.
As a concluding note, it cannot be emphasised more that to maintain public trust in the administration of the criminal justice system, prosecutorial decisions must be fair, objective and independent. To this end, Public Prosecutors in the Department will continue to strive to serve the community as ministers of justice in assisting the court and to do justice.