Provisional Legislative Council

PLC Paper No. CB(2)1492
[These minutes have been
seen by the Administration]


Provisional Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of special meeting held on Monday, 23 March 1998 at 4:30 pm in the Chamber of the Legislative Council Building

Members present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Kennedy WONG Ying-ho (Deputy Chairman)
Hon WONG Siu-yee
Hon Mrs Elsie TU, GBM
Hon Ronald ARCULLI, JP
Hon TSANG Yok-sing
Hon YEUNG Yiu-chung
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP

Member absent :

Hon David CHU Yu-lin

Members attending :

Hon Edward HO Sing-tin, JP
Hon NG Leung-sing
Hon LEE Kai-ming
Hon Allen LEE, JP
Hon Mrs Peggy LAM, JP
Dr Hon Mrs TSO WONG Man-yin
Hon CHENG Kai-nam
Dr Hon Philip WONG Yu-hong
Hon CHIM Pui-chung
Hon Paul CHENG Ming-fun, JP

Public officers attending :

Department of Justice

Ms Elsie LEUNG, JP
Secretary for Justice

Mr Grenville CROSS, QC, SC
Director of Public Prosecutions

Mr Stephen LAM, JP
Director of Administration and Development

Deputy Law Officer (Secretary for Justice's Office)

Clerk in attendance :

Ms Doris CHAN
Chief Assistant Secretary (2) 4

Staff in attendance :

Mr Jimmy MA
Legal Adviser
Ms Joanne MAK
Senior Assistant Secretary (2) 4

I. Confirmation of minutes of meeting held on 9 February 1998
(PLC Paper No. CB(2)1284)

The minutes of the meeting held on 9 February 1998 were confirmed.

II. Meeting with the Secretary for Justice to discuss the Prosecution Policy of the Department of Justice
(PLC Papers Nos. CB(2)1263(01) and CB(2)1269(01)-(03))

2. The Chairman said that this special meeting was held to discuss the prosecution policy of the Department of Justice in the wake of public concern over the decision of the Secretary for Justice (SJ) not to prosecute a named co-conspirator in the Hongkong Standard case.

3. Referring to the "Statement by the Secretary for Justice in respect of Prosecution Policy" (the Statement) tabled at the meeting, SJ explained her role as the public prosecutor in Hong Kong and how that role was discharged in the public interest. She explained the extent to which she was accountable for prosecution policies, and the factors that she would take into account when deciding whether or not to prosecute in any particular case.

4. SJ said that although she was accountable to the legislature, she could not disclose the reasons for prosecution decisions and this had been a long-standing policy in Hong Kong. She said that the policy had been explained to the former Legislative Council in March 1987 by the then Attorney General, Mr Michael Thomas QC. SJ emphasized that this policy was not unique to Hong Kong but Attorneys General and Directors of Public Prosecutions in the United Kingdom also consistently adopted it.

5. As regards her decision not to prosecute Madam AW Sian, the named co-conspirator in the Hongkong Standard case, SJ assured members that she had strictly adhered to the established prosecution policy of the Department of Justice and to Article 63 of the Basic Law in reaching the decision. However, in accordance with the principle of non-disclosure of the reasons for prosecution decisions, and the principle that no comments should be made on matters which were sub judice, she could not disclose the reasons for her decision in this case. She could neither say whether her decision not to prosecute Madam AW in the Hongkong Standard case was based on insufficiency of evidence or the public interest, in order to avoid going into the details and the evidence of the case.

6. SJ emphasized the need for her as SJ to make prosecution decisions independently. She pointed out that there had been precedents for not charging someone named as a co-conspirator in a criminal case. She said that within the limited time available to her, she was able to identify from the Commercial Crime Unit alone 13 concluded cases in which named co-conspirators had not been charged, and there were two other cases currently proceeding in such circumstances. She gave an account of the possible reasons for such occurrences.

7. Finally, SJ called on the public to be patient and have confidence on the judicial system of the Special Administrative Region (SAR) and she believed that, during the trial, the evidence would become open to the public. She hoped that at the conclusion of the trial it would be possible for her to make a public statement on the case. She also stressed that in performing her constitutional functions in respect of prosecutions, she would not bow to external pressure but would continue to act independently and in accordance with the rule of law.

8. Mrs Miriam LAU recalled that there were past cases in which the concerned Attorney Generals had sought independent legal advice after being queried about their prosecution decisions. She asked whether or not SJ had considered seeking legal advice in the Hongkong Standard case. She also requested SJ to explain in more concrete terms "the public interest" on which her decision not to prosecute Madam AW Sian was based. She considered that the doubt now thrown on the judicial system of the SAR in the wake of the decision not to prosecute Madam AW Sian was itself a matter of public interest.

9. In response, the Director of Public Prosecutions (DPP) said that second opinions from the private sector were sought from time to time if cases were complex, a particular area of expertise was required but unavailable in the Department or if an employee of the Department was involved. He said that given the Hongkong Standard case was sub judice, he could not discuss the details of the case. He also pointed out that members of the Prosecutions Division regularly exercised the discretion to prosecute or not. As an example, in over 3,000 cases in 1997, the Police had decided not to prosecute young offenders in relation to relatively minor cases because diversion was considered as an appropriate alternative to prosecution. As regards the public interest criteria, DPP said that SJ had set out in the Statement some factors which would be taken into account in deciding whether or not a prosecution was necessary in the public interest. He said that the reason why SJ could not disclose whether the decision not to prosecute Madam AW Sian was based on insufficiency of evidence or the public interest was precisely owing to the rule of law, which was designed to prevent people who had been charged with offences from being tried by the public. He explained that this was important because such people would not have the chance to present their evidence in response to the offence which was alleged against them. He said that this concept was one facet of the rule of law which had been enshrined in prosecution policies not only in Hong Kong but throughout the Commonwealth for many years. He considered that the principle should not be altered.

SJ clarified that the Department of Justice had never stated that the decision not to prosecute Madam AW Sian in the Hongkong Standard case was based on the public interest. She said that the Department had only stated that the decision was taken in strict adherence to the established prosecution policy and according to which, sufficiency of evidence and the public interest were the factors which should be taken into account. However, due to the reasons as earlier explained, she could not disclose which of the two named factors accounted for the prosecution decision made. SJ considered that the evidence of the Hongkong Standard case was clear and thus there was no need to seek a second legal opinion. She stressed that it was the Department of Justice to bear the responsibility to decide whether or not to prosecute and if it sought a second legal opinion under the pressure of public opinions, it was not functioning independently.

10. Mrs Miriam LAU considered that DPP had only quoted young offenders and minor cases as examples in his answer. She said that since not every case had generated such great public concern like the present case, it warranted SJ's consideration as to whether or not legal advice should be sought in the same way as the former Attorneys General had done before. In response, SJ pointed out that the present case was different as the Department of Justice had already initiated prosecution of three persons in the Hongkong Standard case, whereas none had been charged in the cases cited by Mrs LAU.

11. Mr Kennedy WONG asked if the current practice of naming Madam AW Sian in the charge as a co-conspirator was unfair to Madam AW herself. As he noted that there were also other cases for not charging named co-conspirators, he asked SJ whether she would take measures to protect these people from being tried by the public and whether she would review the policy of non-disclosure of reasons for prosecution decisions.

12. In response, SJ said that in this case as the name of Madam AW Sian had been revealed in the charge, it was inevitable that the public would discuss and comment on her. However, as the three defendants would be on trial, she was prohibited from giving an explanation for her decision not to prosecute Madam AW as any such explanation would inevitably involve disclosure of details of the facts of the case and the evidence involved. SJ appealed to the public to have confidence in the trial system which was open and impartial; and at the time when the case was tried and evidence became open, the public could further comment on the case.

13. In response to Mr Kennedy WONG's further enquiries, SJ said that she wanted to but could not make a commitment now that she would give a full statement for this case at its conclusion. She explained that there could be different scenarios: the defendants might admit guilt and be convicted or might be discharged; and it also depended on how much evidence was disclosed during the trial. She emphasized that in deciding whether or not to give a full explanation for this case, she would strictly observe the principle that particularity of people who had not been charged should not be disclosed as far as possible. However, she did not rule out the possibility of reviewing the prosecution decision made on this case depending on whether any new evidence was revealed.

14. Mr IP Kwok-him enquired, in respect of cases referred from the Police and the Independent Commission Against Corruption (ICAC), what happened if SJ and DPP took different views on a particular case? In reply, DPP said that it was not possible for SJ or himself to study and advise on all the large number of cases referred by the law enforcement bodies including the Police and ICAC. Thus, the parameters of the prosecution policy were established as guidance for the handling of the cases. For example, the Department of Justice had issued a prosecution manual in 1993 which covered all facets of the prosecution policy, procedures and law. He said that the manual was being updated and it would be released in April 1998.

15. DPP further said that given the large number of cases, he could not refer all the cases to SJ for consideration and discussion, but did refer the more sensitive, important and complex ones. However, he regularly met SJ to discuss cases. In case they had different views on any particular case, he would give his own opinion on the case to SJ but ultimately the responsibility for making the decision rested with SJ. DPP assured members that in making the prosecution decision on this case, the prosecution policy had been scrupulously observed. SJ had ensured that the tests identified in that policy had been adhered to and SJ had made her decision accordingly. DPP said that he respected and supported the decision which SJ had reached.

16. Mr CHIM Pui-chung said that based on the details of the facts of the Hongkong Standard case as reported in the news media, the case should have been investigated by the Commercial Crime Unit. Mr CHIM asked why the investigation of the case had been conducted by ICAC instead. In response, DPP said that as the case was sub judice, it would be improper for him to go into details of the case. He could only say that in general when complaints were made to ICAC, it had a mandate to investigate matters arising from the complaint.

17. Mr Bruce LIU took the view that SJ had under-estimated the public concern on this case. However, as the case was sub judice, he agreed that SJ should not disclose details of the case, but should give a full explanation as to why the Department had only charged three persons and not all alleged co-conspirators named in the case at the conclusion of the trial. Mr LIU also requested SJ to review whether it was fair to disclose the name of a person who had been named as a co-conspirator in the charge but not prosecuted as it would also subject the person to a trial by the public. He also asked whether in this case SJ and DPP had very different views and if so, whether SJ had considered seeking a second legal opinion. He further asked whether SJ would apologize if her decision on this case was found erroneous in the end.

18. In reply, SJ reiterated that it was an established principle that the Department of Justice should not reveal details of the facts of a case when it was sub judice. She considered that the great public concern shown over this case was understandable as Hong Kong people had greater expectations of the Government under the system of "Hong Kong people ruling Hong Kong". However, she hoped that people would cast their criticisms on the Government only after they had understood more clearly the relevant policies.

19. SJ explained that there were various reasons as to why named co-conspirators in a case were not prosecuted, for example, where the named person was not within the jurisdiction; where the named person had died; where the person was to be a prosecution witness; and where charging the named person would not be in accordance with the prosecution policy due to insufficiency of evidence or a public interest factor. She also explained that under the Criminal Procedure Ordinance, an accused person was entitled to know the particularity of the offence alleged against him. Therefore, where it was alleged that A conspired with B, B's identity should be revealed in the charge, even though for various reasons B was not himself charged.

20. SJ also clarified that she was not in dispute with DPP over the Hongkong Standard case. She said that there were discussions between them on the case before arriving at a decision. SJ said that she had made the final decision on this case and she assumed the ultimate responsibility.

21. SJ said that she could not make a definite commitment now that she would give a full statement for the case at its conclusion as it would depend on how much evidence was revealed during the trial. She requested the public to be patient as they could further judge when the evidence of the case was revealed during the trial.

Mr YEUNG Yiu-chung referred to paragraph 5.6 of the Report of the Working Group to Review the Decision-making Process in Prosecutions Division of the Legal Department (the Report) and questioned whether there was negligence committed by the Department of Justice in drafting the ICAC statement on this case as the wording of which had become the subject of public concern. He queried whether the way of drafting the ICAC statement by the Department of Justice had circumvented the principle as set out in the quoted paragraph of the Report.

22. In response, DPP said that as explained by SJ, sometimes it was unavoidable to mention a particular person as an unindicted co-conspirator and SJ had given instances of where that arose. He said that the Criminal Procedure Ordinance made clear that as a basic principle of law, someone who was accused of an offence was entitled to know the details of the offence which was alleged against him/her. It regularly happened in trials, particularly in conspiracy trials, that the prosecution was pressed to disclose the parameters of the allegations which were being made against the accused so that he/she could prepare his/her defence. Thus, it was unavoidable to mention an unindicted co-conspirator as what had been done before in the 13 conspiracy cases to defraud which SJ had referred to. However, DPP stressed that open discussion of the reasons why that unindicted co-conspirator was not also charged did not serve the greater interest of justice which required that the prosecution policy be adhered to. He also pointed out that should more time be given, the Department of Justice would be able to identify more other types of conspiracy cases to show that it was necessary from time to time in Hong Kong and throughout the Commonwealth to mention people as an unindicted co-conspirator in order that those who were actually charged could see the extent of the case it was that they had to answer.

23. SJ referred to the statements issued by the Department of Justice on 18 and 19 March 1998 which had explained that it was an established principle that reasons for prosecution decisions should not be disclosed. However, she considered that there was a need to improve the communication between the Department and the public such as that it should have explained earlier such a principle of non-disclosure and why a named co-conspirator in a case might not be necessarily charged. However, she considered that given the principle that the details and the evidence of a case could not be disclosed when the case was sub judice, any explanation which she gave would not satisfy the media and the public as she could not go into details of the facts of the case and the evidence involved.

24. Mr WONG Siu-yee commented that it was more accurate to say that the Hongkong Standard case, after being widely reported by the media, had aroused great public concern. He enquired if the ICAC could be requested to release their investigation report on this case to this Panel for discussion. In response, the Chairman considered that as this meeting was convened to discuss only the prosecution policy of the Department of Justice, he did not support Mr WONG's request. At the Chairman's invitation to comment, the Legal Adviser said that the investigation report was not an agenda item for this meeting.

25. The meeting ended at 5:40 pm.

Provisional Legislative Council Secretariat
19 June 1998