There have been serious concerns recently with relation to the role of the Secretary of Justice of Hong Kong SAR especially with relation to criminal prosecutions. The role of the Secretary Justice is set out on the website of the Justice Department of HKSAR. One of her key roles is to uphold the rule of law. As the Justice Department website states, “It is the Secretary for Justice’s inexorable responsibility to promote and further the rule of law.”

Explaining the concept, the website further states, “the rule of law requires that the courts are independent of the executive.” While the Department of Justice has control over criminal prosecution, they should be “free from any interference.” In relation to the Justice Department’s decision to prosecute “must be based on an objective and professional assessment of the admissible evidence, applicable law and the Prosecution Code. Politics has no role to play in such decisions.” The website continues to lay out that, “It is the duty of the Secretary for Justice to ensure that our independent role of conducting criminal prosecutions would be in no way compromised.” However, the impression given, or rather what is seen to be done by the Secretary of Justice recently raised grave concerns.

First, the fear created by the National Security Law in Hong Kong is harmful. History has demonstrated that “national security laws” have had detrimental effects on the rule of law and rule of law institutions in many Asian countries. A society based on the rule of laws needs to constantly progress through visible actions to protect the principles of the rule of law. National security laws often put the rule of law institutions on a leash. The arbitrariness embodied in the implementation of such laws in many countries has regressed their justice institutions. In other words, the Justice Secretary needs to make a greater effort to convince the people of Hong Kong and the international community that her actions are progressively promoting the principles of the rule of law, especially where there is national security legislation in effect. But what is seen to be done by the Secretary of Justice in Hong Kong?

The number of recent incidents in relation to criminal prosecutions has raised serious concerns. First, the resignation of the Director of Public Prosecutions, David Leung in July this year. Reuters quoted Mr Leung in saying that he does not see eye to eye with the Secretary for Justice on the running of the Prosecutions Division. This resignation indicates disagreements and the lack of unity at the highest level of the Department of Justice. Such resignations, and more importantly the reasoning for such resignation contribute to the decline of the credibility of the Department. The Secretary of Justice should be gravely concerned about such resignations and should not take them lightly. Mr Leung has further stated that “every defendant should have a “fair trial” based on available evidence.” He has raised his concern about needing to have a fair trial in the context of the National Security Law. In other words, every person’s right to a fair trial need to be guaranteed, taken very seriously and seen to be done.

But what is seen to be done by the Secretary Justice with relation to prosecutions and decisions by courts? Has she been fair or too harsh on the sentencing of young protesters who have been found guilty by the courts? In several cases, the Secretary of Justice has requested the courts to revisit their lighter sentences on protesters. Sing Tao reported on Nov. 23 that the Department of Justice has filed at least 16 applications for review of sentences to the Court of Appeal of the High Court within this year. Some of these cases are related to children who have taken part in protests. Has this been a common practice in Hong Kong? If so, how frequently the Secretary of Justice has been requesting courts to revisit sentences? Or is this a new practice under the National Security Law? If so, do such actions seem impartial?

Further, the Secretary of Justice has intervened in several private prosecution cases. One case is against a policeman who shot a protester during an anti-government demonstration. The second case is about a taxi driver accused of ramming his taxi into a group of protesters. The Secretary of Justice, justifying her action stated that she should not condone private prosecutions that are groundless or frivolous or brought out of improper motives of political considerations. The Prosecution Code of HKSAR states, when considering whether or not to take over a private prosecution, one of the factors that need to take into account is the seriousness of the offense. In one of those cases, a person was shot. And in the other, a vehicle was driven into a group of people, who were seriously injured. There is overwhelming evidence for both incidents. What is groundless or frivolous about these two incidents? And what are the improper motives of political considerations here? Isn’t the Secretary herself trying to make them political by trying to stop these private prosecutions? What is the right thing to do to build public confidence in the criminal justice system of HKSAR? To keep intervening or let the courts to decide based on the merits of such cases?

On the website of the Department of Justice, there is a speech by a Director of Public Prosecutions (DPP) on private prosecutions. In the speech, the DPP says, “Private prosecutions have been instituted with some regularity in the courts of Hong Kong both before and after reunification. In 1996, there were ten private prosecutions; in 1997, there were six; in 1998, there were six; in 1999, there were two; in 2000 there were six. These thirty prosecutions in turn generated sixty-five summonses. In one instance only has it been necessary for the Secretary for Justice to intervene and terminate a private prosecution.” This demonstrates that there has not been a general practice of the Secretary of Justice intervening in private prosecutions cases. The speech further asserts the following: “That the system of privately instituted prosecutions is both alive and well is a healthy sign. Properly deployed, it has as much utility today as it had in the earliest days of our legal system. The right of the individual to prosecute, though open to abuse, remains a vital one.”

The Secretary of Justice does not need to look far but on its own Department’s website to learn from best practices from the past. It is through such best practices the people in Hong Kong maintained trust in the justice system that protect them. An arbitrary action can lead to further deteriorate that trust and lead to the further decline of the rule of law in the city. Such a decline of the rule of law and rule of institutions would aggravate the insecurity and fear of the people of Hong Kong. That is certainly not the make-up of a healthy society in a world-class city.

(Yan Kei, Advocate for criminal justice reforms)

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