1. Independence of the Prosecutor

Independence Generally

1.1   A prosecutor is required to act in the general public interest, but independently as a “minister of justice”. In making decisions and exercising discretion a prosecutor must act fairly and dispassionately on the basis of the law, the facts provable by the admissible evidence, other relevant information known to the prosecution and any applicable policy or guidelines.

1.2   A prosecutor must not be influenced by:

  1. any investigatory, political, media, community or individual interest or representation;
  2. the personal feelings or beliefs of the prosecutor concerning the offence, the suspect, the accused or a victim of crime;
  3. the possible effect of the decision on the personal or professional circumstances of those who have the conduct of the case;
  4. the possible political effect on the government, any political party, any group or individual;
  5. possible media or public reaction to the decision;
  6. the race, religion, sex, ethnic or national origin, colour, language, political or other opinion, social origin, social or political affiliation, official or other position in the community, lawful activities, beliefs, property, health, disability or any other personal characteristics of the suspect or accused or any other person involved or concerned (although such considerations may need to be addressed for other reasons).

Department of Justice

1.3   Article 63 of the Basic Law of the Hong Kong Special Administrative Region provides that the Department of Justice “shall control criminal prosecutions, free from any interference”. That constitutional guarantee of independence ensures that prosecutors within the Department may act independently without political or other improper or undue influence.

Secretary for Justice

1.4   The Secretary for Justice is head of the Department of Justice. The Court of Appeal stated in In Re C (A Bankrupt) [2006] 4 HKC 582 at 590:

“The prosecutorial independence of the Secretary for Justice is a linchpin of the rule of law… ‘the decision whether any citizen should be prosecuted or whether any prosecution should be discontinued, should be a matter for the prosecuting authorities to decide on the merits of the case without political or other pressure.’ [Sir Robert Finlay, 1903] …these statements…reflect accepted and applied fundamental principle in this jurisdiction the continuation of which is preserved by the entire theme of the Basic Law as well, specifically, as by article 63.”

1.5   The Secretary for Justice is responsible for applying the criminal law, formulating prosecution policy, and superintending the Director of Public Prosecutions and prosecutors in the Prosecutions Division of the Department. The Secretary is accountable for decisions made by prosecutors, to whom various powers are delegated.