Prosecutions Division

Counsel in the division

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.

 

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.

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Sir Ken Macdonald’s report

In January 2010, with a view to modernising the Prosecutions Division and to further improving its efficiency as a world class prosecution service, the division commissioned Sir Ken Macdonald, QC, (now Lord Macdonald) the former Director of Public Prosecutions of England and Wales, to review the operations of the division. Having interviewed a wide range of individuals, in February 2010 Sir Ken submitted a review report recommending a line of changes in relation to the Prosecutions Division’s organisational structure, internal practices and procedures, the division and distribution of work, the nature and provision of training and the functions and duties of legal and paralegal staff and the division’s relationships and dealings with outside agencies. Pursuant to the recommendations made by Sir Ken, a number of reforms and new initiatives have been put in place.

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The restructuring of the Prosecutions Division

A key element of this restructuring exercise was the creation of a new Office of the Director of Public Prosecutions (ODPP). The ODPP is headed by the Chief of Staff and is responsible for all management and policy development of the division. The areas of responsibility covered by the ODPP are wide, namely media relations, administration and management, policy research and training and complaints and feedback. The operational work of the division is conducted by the other four sub-divisions: (a) Sub-division I Advisory, which is responsible for providing advice on and preparing for trial cases which are prosecuted in the Court of First Instance, District Court and Magistrates Court; (b) Sub-division II Advocacy, responsible for conducting advocacy work at all levels; (c) Sub-division III Appeals, responsible for advising and conducting appellate advocacy work including Basic Law, Bills of Rights and Judicial Review; and (d) Sub-division IV Commercial Crime, responsible for dealing with cases involving commercial fraud, bribery, dutiable commodities, technology crimes, securities and revenue fraud and breach of copyright and trade descriptions.

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Proceeds of crime

As part of the restructuring of the division, the Proceeds of Crime Section has been brought directly under the control of the head of Sub-division I because of the wide application and relevance of proceeds of crime and its significance as a law enforcement initiative.

The Proceeds of Crime Section advises law enforcement agencies on the feasibility of applying for restraint orders and confiscation orders. In 2011, the section successfully confiscated a total of about $1.8 billion.

Apart from court work, the section also gives full support internationally on anti-money laundering measures by giving lectures and workshops to assist law enforcers, both local and overseas, and other interested parties to understand the law and practice in this area. Some of the section members are also qualified assessors of the Asia/Pacific Group on Money Laundering.

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The creation of the rank of Assistant Principal Government Counsel

In view of the continuous increase in the complexity of work and the higher level of responsibilities undertaken by some of the experienced senior public prosecutors, a total of seven new posts at the rank of Assistant Principal Government Counsel were created within the Prosecutions Division in 2011. Five were attached to sub-division II (Advocacy), one was assigned to head a team dealing specifically with Customs and Excise cases and the remaining one was posted to the proceeds of crime unit, solely responsible for recovery action in relation to the proceeds of crime and advising on terrorist financing matters.

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Significant initiatives and reforms in 2010 and 2011

The Prosecutions Division has also taken forward a series of initiatives to modernise the division and enhance its efficiency and effectiveness. Major initiatives include:

  • The introduction of the quick advisory system known as “FAST” to deal promptly with relatively simple and straightforward cases
  • The establishment of a new advocacy subdivision to reflect the importance of advocacy expertise and to allow specialisation
  • The establishment of a staff training unit and of a continuing legal education programme
  • The creation of a Joint Training Programme with the Hong Kong Bar Association and the Law Society of Hong Kong for newly qualified lawyers
  • The holding in selected cases of “case review meetings” between prosecutors and relevant officers of the law enforcement agency to see what lessons can be learned and how improvements can be made for the future

Looking ahead, the Prosecutions Division will continue to pursue a policy of transparency and ensure that prosecution decisions are made fairly and properly in accordance with established prosecution policy and practice. The division is also considering effective ways to enhance the public’s understanding of the prosecution service and the criminal justice system.

 
 
The then Director of Public Prosecutions, Mr Ian McWalters, SC, with the Deputy Procurator General of the Supreme People's Procuratorate, Mr Sun Qian (September 2010)

As regards communications at the professional level, the division has engaged in active dialogue with the private legal profession and interested groups on a variety of issues and has fostered a partnership with the private legal profession in improving professional standards and addressing matters of common interest in relation to the criminal justice system.

The Prosecutions Division has also fostered close links with its counterparts in other jurisdictions. Prosecutors have actively participated in various international fora and events, as well as experience-sharing with other jurisdictions by way of video conferencing. Efforts will continue to be made to enhance the co-operation with other jurisdictions, in particular to combat cross-border crimes and for the restraint and confiscation of proceeds of crime.

 
A mock-up courtroom for criminal advocacy courses
 
The Director of Public Prosecutions, Mr Kevin Zervos, SC, addresses the World Summit of Prosecutors General, Attorneys General and Chief Prosecutors in Seoul

 

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  Wesley Wong Wai-chung
Principal Government Counsel, Prosecutions Division
   
   

When Wesley Wong featured in the department’s biennial report in 2000 he was a Senior Government Counsel in the Civil Litigation Unit. Wesley said then, “Working as a Government lawyer has given me opportunities to experience a range of work unparalleled elsewhere and it is particularly satisfying to be involved in Government at a time when Hong Kong is witnessing the development of its new constitutional framework.”

Wesley believes the same is still true to this day. Wesley, from the department’s first crop of legal trainees, has never regretted joining the government legal service in 1993 to start his pupillage in the then Attorney General’s Chambers after graduating from the University of Hong Kong. Having spent 11 years in the Civil Division, during which time he was promoted to the rank of Deputy Principal Government Counsel, he returned to the Prosecutions Division in 2010 and was put in charge of the section dealing with appeals to the Court of Appeal and the Court of Final Appeal. Since January 2011, he has headed the sub-division responsible for commercial crime and corruption.

As an in-house advocate, Wesley has regularly appeared before all levels of courts and tribunals, both civil and criminal, from early in his career and worked with or against top local and London silks in landmark cases.

"The DoJ provides fertile ground for any practitioner who looks for challenge and variety. It’s precisely because the spot light is on every case in court that I’m given the impetus to carry on despite the strains and stresses of work. Acting for the government means that one can’t settle for anything less than what the court can rightly expect in terms of the assistance it deserves in deciding every case that comes before it," says Wesley. "I also find time to act as a mentor for local law schools and teach part-time on short courses. It gives me enormous satisfaction to meet and do what I can for students and practitioners from different disciplines." On top of all that, Wesley has a passion for history and visits museums (of all sorts).

 
   

 

   
  Polly Wan Shuk-fong
Deputy Principal Government Counsel,
Prosecutions Division
   
   

Polly Wan joined the department in 1986 as a Court Prosecutor. Having graduated from Wolverhampton University with an LLB degree and passed the English Bar Final Examination, she was called to the Hong Kong Bar in 1994 and became a Crown Counsel the same year.

Polly has worked in the Prosecutions Division throughout her time in the department, undertaking a wide range of duties. She has worked in a number of different advisory teams and at one stage specialised in giving immigration advice. She has prosecuted many sexual offences and, as a member of the division’s Vulnerable Witness Team, is accustomed to handling child witnesses and other vulnerable witnesses. Before her present posting in January 2011 to head one of the two ICAC teams in the Commercial Crime sub-division, Polly had spent three years as part of the division’s Court Specialist team.

Outside work, Polly likes reading and is interested in knowing more about psychology. “It helps if we can understand what a victim and a defendant had been thinking at the time of the offence. We can better formulate the way we present our case and cross-examine the defendant,” she says.

 
   

 

   
  Jonathan Lin Po-hei
Public Prosecutor, Prosecutions Division
   
   

After graduating with a BSocSci degree from the Chinese University of Hong Kong in 2001, Jonathan Lin joined the civil service as an executive officer working in the Customs and Excise Department and then the Home Affairs Department. He left the civil service in 2007 after obtaining an LLB degree from the University of London and obtained the Postgraduate Certificate in Laws from the University of Hong Kong in 2008. Jonathan joined a sizable local law firm as a trainee solicitor the same year, primarily specialising in civil litigation and commercial law. After admission as a solicitor in 2010, Jonathan decided to join the department as a Public Prosecutor and was posted to the Prosecutions Division’s Advocacy Sub-division to polish his advocacy skills. Jonathan was recently posted to the ICAC (Public Sector) Team in the Commercial Crime Sub-division.

As an advocate, Jonathan was responsible for conducting magistracy and District Court trials covering a wide range of offences. In 2011, he acted as a Coroner’s Officer in a high-profile death inquest in which 52 witnesses were called. He also gave legal advice to law enforcement agencies.

"I find the core qualities of a Public Prosecutor appealing: to be impartial, objective, fair and fearless”, Jonathan says. “To be a Public Prosecutor is a tremendous honour. We are entrusted to maintain an uncompromising insistence on the fair administration of justice."

Jonathan has been an active volunteer for a charitable organisation providing multi-lingual active listening services to depressed and suicidal people. "The importance of empathy can never be over-emphasised, especially in a metropolitan city like Hong Kong. Also, it is a privilege to be able to give rather than to receive."

 
   

 

   
  Teresa Tang Yee-wan
Senior Law Clerk I, Prosecutions Division
   
   

Teresa Tang joined the government as a Clerical Officer II (now re-named as Assistant Clerical Officer) in 1982 and was posted to the Judiciary, where she worked as a magistrate’s clerk for two years before joining the then Legal Department in 1984 as a law clerk in the Prosecutions Division. “I think my experience of working in court is the reason why I was posted to the Fixed Penalty Unit, as a major part of the unit’s work is to conduct fixed penalty proceedings in magistrates’ courts,” Teresa says.

Teresa was promoted to Senior Law Clerk II in 1994 and in 1998 she was transferred to the District Court Unit in which her major duty was the drafting of bilingual charges for District Court cases. “I’m the first law clerk who undertook the drafting of charge sheets in Chinese”, she says. “It was a completely new experience for me but, at the same time, very challenging.” After four years in the District Court Unit, Teresa moved to the Costs Unit in 2002 to handle costs claims in criminal cases. She was promoted to Senior Law Clerk I in 2006 and since then has been responsible for the management and administrative work of para-legal staff. “My work history in various units of the division helps me to understand and appreciate the needs of my law clerks when exercising my supervisory duties.”

Due to her interest in law, Teresa completed a higher diploma in legal studies with the City University of Hong Kong in 1993 and an external LLB degree from Manchester Metropolitan University in 1996. She then took one year study leave to complete the PCLL course at the University of Hong Kong in 1998. She was called to the Bar in 1999 and completed her pupillage with the department in 2000.

Reviewing her life in the department, Teresa says: “It’s a privilege for me to be able to work in the department which plays a major role in the administration of justice in Hong Kong.”

 
   

 

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