The Department of Justice (DoJ) is responsible for making prosecutorial decisions. At times, these decisions attract extensive discussions in the community. It becomes interesting when overseas media and politicians embark upon allegations or purported demands relating to Hong Kong’s prosecutorial decisions.
Article 63 of the Basic Law provides that the DoJ of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference. This prosecutorial independence ought to be a feature in any society that cherishes the rule of law, and therefore attempts made by jurisdictions requesting such decisions to be made one way or another or even to request that they be varied is a blatant defiance of rule of law.
The DoJ acts independently without political, improper or undue influence including those from public opinions and certainly not from overseas politicians who made these requests possibly not based on evidence or law but on political motives.
In cases in which legal proceedings are on-going, we will not comment and neither should others as it may bring about the undesirable effect of a trial by the public. Statements made requesting the DOJ to drop all the charges or uttered with a view to affecting the DOJ’s role in controlling criminal prosecutions are futile. It is plainly wrong to label our prosecutions as “politicized”. On the contrary, no one, be they tycoons or politicians, will be above the law or be treated differently simply because they have a certain status or are pursuing certain beliefs or goals.
When law enforcement agencies have completed their investigation, they would seek legal advice from the DoJ. Our prosecutors would carefully consider the investigation reports and relevant materials submitted. A prosecution would only be commenced if the prosecutor is satisfied that there is sufficient admissible evidence to support a reasonable prospect of conviction.
The well-established procedures of our criminal justice system include the independent investigations by law enforcement agencies, the independent prosecutorial decisions based on objective assessment of evidence, applicable laws and in accordance with the Prosecution Code, and finally open trials by our independent judiciary. If we are to accede or be seen to yield to unreasonable demands to drop charges irresponsibly, we would not only be unfair and unprofessional but would also act in violation of the spirit of the rule of law.
I have explained the DoJ’s prosecution procedure on various occasions and stressed that our prosecutors are expected to apply the highest of professional standards in handling all criminal cases impartially and without fear or favour. They must not be influenced by political consideration. Cases should not be handled any differently irrespective of one’s own political beliefs or opinions.
The HKSAR Government always respects and protects human rights and freedoms. However, these rights are not absolute. As pointed out by the Chief Justice of the Court of Final Appeal at the Ceremonial Opening of the Legal Year 2020, “it is important to understand that the enjoyment of these rights has limits so as not to affect adversely to an unacceptable level the enjoyment by other members of their community of their rights and liberties.” There are clear limits in the law to the exercise of these rights. When law is broken, action will be taken in accordance with the criminal justice system.
The rule of law is a core value in Hong Kong. We have to stand united in upholding our independent criminal justice system especially when it is under attack by any unfair and unfounded allegation made with a view to discrediting or undermining it. Any attempt to do so would only be attractive to those unfamiliar with our independent legal and judicial systems. We are obliged to continue to explain and ensure that their absence of knowledge would not override facts. We will continue to disseminate proper and accurate information and help clear any misunderstandings in the local and overseas communities.
April 26, 2020