Keeping faith in the system

Last December, the legal establishment in Hong Kong was shaken by accusations from the colony's Bar Association that the standard of prosecution had deteriorated over the past year. The deterioration was blamed on the Attorney General, Jeremy Matthews, putting cost-cutting before the administration of justice.

The association was referring to what it considers to be the restrictive use of briefing-out cases by the Prosecutions Division of the Attorney General's legal department. It is also unhappy about the use of public prosecutors, who it claims are “not up to the job”.

The association's representative, Michael Poll, said: “…the in-house counsel are often inexperienced and, as a consequence, are unable to deal with the problems that they face in the High Court, especially when challenged by seasoned defence counsel”.

This deficiency, Poll claimed, would result in more miscarriages of justice, unnecessary appeals and higher costs, and would also cause the public to lose faith in the criminal justice system.

So serious were these claims that representatives of the Bar Association and the Director of Public Prosecutions, Peter Nguyen, were summoned to appear before the Hong Kong Legislative Council's panel on the administration of justice. At the meeting Nguyen demanded that the Bar Association should either substantiate its allegations or withdraw them.

But does the Bar Association have any grounds for its assertions or are its allegations simply a case of sour grapes on its behalf? Unlike their counterparts in England and Wales, Crown Counsel in Hong Kong, whether solicitor or barrister, have an unlimited right of audience. The Prosecutions Division currently briefs out only 20 to 30 per cent of all High Court work and about 40 per of its district court work, handling nearly all its appeal cases.

By maximising the use of in-house resources, the Prosecutions Division claims it is trying to reduce its reliance on briefing-out and saving money. However, the estimated expenditure on briefing-out in 1995 will add up to about HK$211m (£18.2m) compared with HK$191m (£16.5m) in 1994.

Claims by the Bar Association that such in-house work is below standard appear to be corroborated by statistics. The Prosecutions Division has conviction rates of about 70 per cent in both the High and district courts and around 55 per cent in the magistrates court.

When compared with the conviction rates achieved by the UK's Crown Prosecution Service, of 90.3 per cent in the Crown Court and 97.8 per cent in the magistrates court, the Hong Kong figures appear mediocre. However, it must be remembered that such statistics do not take into account the many variables unique to each legal jurisdiction.

In order to examine the Bar Associations claims, two other areas also need to be considered: the unique scheme of lay prosecutors and the Attorney-General's prosecution policy, which provides guidance for Crown Counsel.

Introduced in 1978, the lay prosecutors scheme does not require lay counsel to be legally qualified when recruited. They are given nine months intensive in-house training, after which they are assigned mainly run-of-the-mill prosecutions in the magistrates court. If successful, they are eventually given the opportunity to qualify as Crown Counsel.

Claims that lay prosecutors are being sent to court while still inexperienced are denied by Senior Crown Counsel Sami Jeung. He says: “It is is a case of striking a balance…after they are trained as much as they can be in-house, the only way for them to gain trial experience is to send them to court.”

As to the prosecution policy document, this is based on the 1986 version of the Code for Crown Prosecutors, so many of the criticisms levelled at the original code are also relevant to the policy document.

Some of the criteria for bringing a prosecution in Hong Kong are the same as in England and Wales: there must be a realistic prospect of a conviction and a prosecution must be in the public interest. The policy document also lists a number of other factors which Crown Counsel should consider when deciding whether to prosecute.

These include the age of the offender, the staleness of the offence, the old age or infirmity of the offender, and whether the offender has a mental disorder. Further criteria are introduced if a sexual offence has been committed and where peripheral defendants are involved.

The policy document also covers the complainant's attitude to criminal proceedings.

Deputy Director of Public Prosecutions Grenville Cross says that in cases of domestic violence, “the usual policy is to accept a bind over and seek the view of the victim”.

He adds: “Of course, that is only in respect of minor offences…there would be no choice but to prosecute severe cases of domestic violence.”

One difference between the policy document and the prosecutors' 1986 code is that the former has a section on the 1991 Bill of Rights Ordinance. This provides that all legislation should be construed so it is consistent with the International Covenant on Civil and Political Rights.

“Adjusting to having a Bill of Rights was very difficult at first,” says Cross. “Our cases were being challenged left, right and centre. To make matters worse, it is open to any court of competent jurisdiction to strike-down a law – even a magistrates court.

“Because the decisions of courts of equal jurisdiction are not binding on each other, some courts took a different view with regard to the same piece of legislation which caused a lot of problems, although the Attorney General could always challenge a magistrate's decision in this respect.”

But he adds: “Now that the framework is established there is no problem.”

The policy document also covers such matters as charging practice, mode of trial, juveniles, disclosure, appeals against sentencing and appeals against conviction.

One element of the justice system which is under fire is the fact that reasons do not have to be given for decisions. This is adhered to despite the belief expressed by some quarters that if reasons were given, the concept of public accountability would be enhanced by helping aggrieved parties to bring challenges to court.

But Cross strongly defends the continuation of this policy. He says: “By giving reasons, you are giving facts which can be potentially embarrassing. Why have the offender tried again by the media?”

Cross says he is happy with the existing guidelines despite the prosecution policy document being based on a text which has since been revised to clarify much of its content.

It is clear that the claims of the Hong Kong Bar Association cannot be easily dismissed. Further research will be necessary to decide conclusively whether the prosecution standards are really in decline in the colony.

And with the release of the Attorney General's review of his department's briefing-out policy later this month, what seems certain is that the controversy is set to continue.