Prosecutions Division


The Prosecutions Division is the largest in the department, with around 120 lawyers. The role of the 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.


The prosecution of offences


The Director of Public Prosecutions, Grenville Cross, SC, delivers a speech at the Conference Dinner of the 12th Annual Conference and General Meeting of the International Association of Prosecutors (September 2007).
A criminal case may be prosecuted in the Magistrates Court (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 and 2002, 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 disregard 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.


The Director of Public Prosecutions, Grenville Cross, SC, speaks at the 3rd China-ASEAN Prosecutors-General Conference in Indonesia (July 2006).
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. His team of specialist counsel advises 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, 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


The Director of Public Prosecutions, Grenville Cross, SC (left), meets Ronald J Tenpas (middle), Associate Deputy Attorney General and Robert E Coughlin (right), Deputy Chief of Staff, Criminal Division of the United States Department of Justice (May 2006).
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 once 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 2006 and 2007

Criminal justice initiatives

Throughout 2006 and 2007, 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 criminal appeals manual

the finalisation of procedures for the disclosure of unused material by law enforcement personnel

the drafting of a manual of specimen charges to promote consistency in offence formulation

the implementation of measures to fast-track cases involving vulnerable witnesses.

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.




Alex Lee Wan-tang, Senior Assistant Director of Public Prosecutions, Prosecutions Division
Alex Lee graduated from the University of Hong Kong in 1991 and joined the department as a trainee solicitor. He qualified as a solicitor in 1993 and was appointed as a Crown Counsel in the Prosecutions Division, initially in the High Court Trial Preparation Unit handling general criminal cases. As Alex's career progressed, his work became more specialised, and he joined the Commercial Crime Unit in 1996. Alex continued to hone his court room skills by attending the Middle Temple Advocacy course in London in 1998, and in 2000 he switched from the solicitors' branch of the profession when he was admitted as a barrister.

Over the years, Alex developed a keen interest in combating corruption and, since his promotion to Deputy Principal Government Counsel in 2005, he has headed the specialist team of seven prosecutors which advises the Independent Commission Against Corruption (ICAC) on its investigations into private sector corruption.

Alex has prosecuted ICAC cases in courts at all levels, and in 2006 he made a report to the inaugural conference of the International Association of Anti-Corruption Authorities (IAACA), in Beijing. Alex says, "ICAC cases are challenging, and I personally find it most fulfilling to be able to apply the expertise I have developed in the department to combat corruption in our society."


Isaac Tam Sze-lok, Senior Government Counsel, Prosecutions Division
After Isaac Tam graduated from the University of Hong Kong in 1991, he worked as a trainee solicitor in a private law firm before joining the department as a prosecutor in 1994. He is now a Senior Government Counsel, and Deputy Section Head of one of the three Court Specialists Sections. Isaac's work involves the conduct of jury trials in the Court of First Instance, and also other sensitive and high-profile cases.

As a member of the Director's Advisory Group (DAG), Isaac participates in advising on policy and other issues affecting the division. He is also an editor of the prosecutors' regular newsletter, the Prosecutions Division Quarterly. Isaac is an enthusiastic participant in the weekly social dance, tai chi and qigong classes organised by the department's staff club.

Away from the office, Isaac is a part-time teacher of law students at his alma mater. He also provides voluntary tuition to disadvantaged children, and supports the teaching mission of the Agency for Volunteer Service, which promotes primary education in the remote mountainous regions of mainland China. "I think that education is a good way of preventing crime," says Isaac. "I see private teaching as an important complement to my work as a public prosecutor."


Lily You Siao-ping, Senior Court Prosecutor I, Prosecutions Division
Lily You graduated from the Baptist College with a Diploma of Arts in 1984, and obtained her Bachelor of Laws degree from the University of Wolverhampton in 1996. She joined the department in 1984 as a Court Prosecutor. She was promoted to Senior Court Prosecutor II in 1991, and further promoted to Senior Court Prosecutor I in 1997.

Lily's current posting is at Kwun Tong Magistrates Court, where she supervises a team of Court Prosecutors and clerical staff. Lily has prosecuted all types of cases during her career, and is now involved in administration. She regularly gives lectures to the police on the preparation of cases and the giving of evidence. In 2007 Lily participated in the 12th Annual Conference and General Meeting of the International Association of Prosecutors.

"I take great pride in working as a prosecutor," says Lily. "My career has enabled me to contribute to the continued successful operation of the criminal justice system in Hong Kong."


Leung Chi-wai, Senior Law Clerk I, Prosecutions Division
Leung Chi-wai began his career in the government in 1974 as a Clerical Assistant with the Judiciary, subsequently joining the then Legal Department as a law clerk in 1984. He has enjoyed a varied career as a para-legal in the Prosecutions Division, and in 2000 was promoted to Senior Law Clerk I. Until 2005, Chi-wai headed the Prosecutions Registry, which provides support to prosecutors in trials, appeals and case preparation. Since 2005, he has headed the Briefing Out and Court Duties Section, which oversees the briefing out of cases to private lawyers, and handles costs and fixed penalty cases.

Chi-wai obtained a Diploma in Chinese Law from the University of East Asia in 1989, and then graduated in law from the University of Wolverhampton in 1996. He was admitted as a barrister in 1998, and obtained an LLM degree from the University of London in 2002.

"My experience in the department and my studies have expanded my horizons and given me a keen insight into the importance of my work in contributing to the successful operation of the system of public prosecutions," says Chi-wai. "I am proud of having served in this department for 23 years."