Prosecutorial Independence –

Continuity and Development1

Prosecutorial Discretion jurisdictions such as the United Kingdom and

Canada: the Attorney General there in making
BL 63 entrenches the constitutional principle of prosecution decisions enjoys independence.4
prosecutorial independence by providing that
“the Department of Justice of the Hong Kong
Special Administrative Region shall control criminal
Independence from Political
prosecutions, free from any interference.” Criminal
Interference

prosecutions include the decisions of whether The recent decision of the Court of Appeal
or not to prosecute, whether to give consent to (“CA”) in Re C (A Bankrupt) 5 on the prosecutorial
prosecute where there is an express statutory independence entrenched under BL 63 is of
requirement of such consent, whether to take over
2
particular relevance. The Court held that:
a private prosecution and whether to enter a nolle
prosequi. The SJ when making such decisions “The prosecutorial independence of the SJ is a
acts in a quasi-judicial capacity and does not linchpin of the rule of law. He is in the discharge
take orders from the government, politicians, the of that duty to be ‘actuated by no respect
law enforcement agencies, or anyone else. The of persons whatsoever’ (Sir Robert Finlay,
established constitutional principle is that he is 1903, Parl Debates Vol 118, cols 349–390)
entitled to exercise his quasi-judicial powers in a and ‘the decision whether any citizen should
completely independent manner.3 be prosecuted or whether any prosecution
should be discontinued, should be a matter
This constitutional principle is consistent with the for the prosecuting authorities to decide on
constitutional convention in leading common law the merits of the case without political or other

1
This article is based on Hon Wong Yan Lung, SC, SJ, “The Secretary for Justice as the Protector of the Public Interest – Continuity and Development”
(2007) 37 HKLJ 319, with appropriate update of the relevant case law.
2
Section 33(5) of the Public Order Ordinance (Cap 245) provides that proceedings under s 33(1) for an offence of possession in any public place of any
offensive weapon, without lawful authority or reasonable excuse, should not be instituted without the consent of the SJ.
3
I Grenville Cross, “Focus on the Discretion Whether to Prosecute: The DPP and Exercise of Prosecutorial Discretion” (1998) 28 HKLJ 400; Albert HY
Chen, “Focus on the Discretion Whether to Prosecute: Prosecutorial Discretion, Independence, and Accountability” (1998) 28 HKLJ 406.
4
John Ll J Edwards, The Law Officers of the Crown (London: Sweet & Maxwell, 1964), pp 220-225; John Ll J Edwards, The Attorney General,
Politics and the Public Interest (London: Sweet and Maxwell, 1984), at pp 318-324; Bruce A MacFarlane, “Sunlight and Disinfectants: Prosecutorial
Accountability and Independence Through Public Transparency” (2001) 45 Criminal Law Quarterly 272. The position of Australia is not so clear since
it has been recently questioned as to whether the Attorney General should enjoy absolute independence in prosecutorial decisions especially when
considerations of public interest are involved. See LJ King, “The Attorney General, Politics and the Judiciary” (2000) 74 Australian Law Journal 444;
David Bennett, “The Roles and Functions of the Attorney-General of the Commonwealth” (2002) 23 Australian Bar Review 26.
5
Re C (A Bankrupt) [2006] 4 HKC 582 concerns whether s 138 of the Bankruptcy Ordinance (Cap 6) contravenes BL 63. The CA held that s 138, in so
far as it provides for the court to order that the bankrupt be prosecuted for an offence under Cap 6 , is not in breach of BL 63.

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pressure. . . . any practice savouring of political no doubt but that it is to these principles that
pressure, either by the executive or Parliament, the reference to ‘control’ in conjunction with
being brought to bear upon the Law Officers the requirement that that control be free from
when engaged in reaching a decision in any interference, is there directed . . .”6
particular case, is unconstitutional and is to
be avoided at all costs.’: ‘The Law Officers of The CA emphasized that the prosecutorial
the Crown’ Edwards (1964), page 224. That independence of the SJ is central to the rule of law
these statements of fundamental principle and that the function of BL 63 is to continue this
were made in reference to the prosecutorial fundamental principle in Hong Kong, consistent
role of the Attorney General in England is with the entire theme of continuity in the Basic
of no present consequence for they reflect Law. The same principle is also underpinned by
accepted and applied fundamental principle a number of statutory provisions such as sections
in this jurisdiction the continuation of which 14(1), 14B and 15(1) of the Criminal Procedure
is preserved by the entire theme of the Basic Ordinance (Cap 221).7 The reference by the CA
Law as well, specifically, as by BL 63. I have to the prosecutorial role of the Attorney General

6
Ibid, para 18.
7
Section 14(1) of the Criminal Procedure Ordinance (Cap 221) provides: “The SJ, if he sees fit to institute criminal proceedings, shall institute such
proceedings in the court against the accused person as to him may seem legal and proper. . . .”
Section 14B of the Criminal Procedure Ordinance provides: “Where any Ordinance provides that no prosecution for an offence shall be commenced
without the consent of some person other than the SJ, such a provision shall not derogate from the powers of the SJ in respect of the prosecution of
that offence.” Section 15(1) of the Criminal Procedure Ordinance provides: “The SJ shall not be bound to prosecute an accused person in any case
in which he may be of opinion that the interests of public justice do not require his interference.”

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 in England echoes the recognition it gave prior to public prosecution of a political character should
reunification to the powers and responsibilities of be undertaken without the prior sanction of the
the Attorney General of Hong Kong being the same Cabinet being obtained”.9 The Prime Minister in
as those of the Attorney General in England.8 the Conservative Government which succeeded
the defeated Labour Government, Mr Stanley
Baldwin, proclaimed that a Cabinet instruction to
the Attorney General to withdraw a prosecution was
“unconstitutional, subversive of the administration
of justice and derogatory to the Office of Attorney
General”.10

In Australia, the
resignation in 1977 of
the Commonwealth
Attorney General, Mr
Robert Ellicott QC,
over pressure from
the Cabinet for him to
intervene to terminate
The independence of the a private prosecution
SJ (or the Attorney General in some jurisdictions) against former Prime Minister Mr Gough Whitlam
arises from the fact that he must exercise the and others, highlighted the importance of the
various powers and discretions in the public interest. independence of the Attorney General at least in
Political acceptance of this independence appears criminal matters. The Cabinet had decided to refuse
to be only relatively recent in the United Kingdom the Attorney General access to Cabinet papers
following criticism of the Campbell affair in 1924 relating to the previous government’s involvement
when the Attorney General was directed by the in a controversial attempt to raise overseas loans
Cabinet to withdraw a criminal prosecution against and had conveyed to him the considered opinion of
Campbell as editor of the communist newspaper, the entire Cabinet that the Attorney General should
Workers Weekly. Subsequently released Cabinet take over the private prosecution and discontinue
minutes of 6 August 1924 revealed that the Cabinet the proceedings.11
had also instructed the Attorney General that “no

8
See Cheung Sou-yat v R [1979] HKLR 630.
9
Edwards, The Law Officers of the Crown (n 4 above), pp 199-211; Edwards, The Attorney General, Politics and the Public Interest (n 4 above), pp
310-318.
10
Edwards, The Law Officers of the Crown (n 4 above), p 213; Edwards, The Attorney General, Politics and the Public Interest (n 4 above), pp 311-312.
11
Edwards, The Attorney General, Politics and the Public Interest (n 4 above), pp 379-388.

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Sir Hartley Shawcross, KC, Attorney General in the shoulders of his colleagues. If political
the post-war Labour Government of the United considerations in the broad sense that I have
Kingdom, explained to the House of Commons indicated affect government in the abstract
in 1951 the constitutional position of the Attorney arise, it is the Attorney General, applying his
General in making decisions on prosecution as judicial mind, who has to be the sole judge of
follows: those considerations.”12

“I think the true doctrine is that it is the duty The essence of Sir Hartley’s statement is that
of an Attorney General in deciding whether or the Attorney General, in making decisions of
not to authorize the prosecution, to acquaint prosecution, may consult his colleagues in the
himself with all the relevant facts, including, government (including those in the Cabinet) but he
for instance, the effect which the prosecution, is not, and should not be, subject to any political
successful or unsuccessful as the case may pressure from them.13 In the context of Hong Kong,
be, would have upon public morale and order, the SJ (being a member of the Executive Council
and with any other consideration affecting (“ExCo”)14) is in a similar position in that he is not,
public policy. In order to inform himself, he and should not be, subject to any political pressure
may, although I do not think he is obliged from other persons in making prosecution decisions.
to, consult with any of his colleagues in the Such constitutional principle as endorsed by the CA
government and indeed, as Lord Simon once in the case of Re C (A Bankrupt) is now entrenched
said, he would in some cases be a fool if he under BL 63. The same constitutional principle
did not. On the other hand, the assistance is also reflected in The Statement of Prosecution
of his colleagues is confined to informing Policy and Practice published by the Department of
him of particular considerations which might Justice as follows:
affect his own decision, and does not consist
and must not consist, in telling him what the “1.1 The Department of Justice is responsible
decision ought to be. The responsibility for for the conduct of criminal proceedings in
the eventual decision rests upon the Attorney Hong Kong. In the discharge of that function
General, and he is not to be put, and is not put, the Department enjoys an independence which
under pressure by his colleagues in the matter. is constitutionally guaranteed. BL 63 of Hong
Nor, of course, can the Attorney General shift Kong stipulates that the Department ‘shall
his responsibility for making the decision to control criminal prosecutions, free from any

12
Edwards, The Law Officers of the Crown (n 4 above), p 223.
13
In an article in The Telegraph (11 March 2007), Lord Goldsmith, the then Attorney General of England, reiterated the fundamental responsibilities of
the office, particularly including cases which “involve a difficult balancing exercise between the competing public interests” – “The principles which
guide me in such decisions are clear. The law must come before party loyalties. Decisions need to be made on the basis of an objective view of the
evidence and the law . . . The Attorney General will have to carry on applying the law objectively on the evidence, even when as Sir Francis Bacon
said, ‘calumnies are hurled boldly’.”
14
The ExCo is an advisory body to the CE under BL 54 and 56.

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 interference’. That the notion of prosecutorial to stem from the respect of separation of
independence enjoys an entrenched status powers and the rule of law. Under the doctrine
enables prosecutors to discharge their duties of separation of powers, criminal law is in the
to the public within secure parameters. domain of the executive . . .”16
Prosecutors act independently without the
fear of political interference or improper or In a similar vein, Monnin CJ, of the Canadian
undue influence. At the same time, the SJ is Supreme Court, in Re Balderstone v the Queen,
accountable for their decisions and actions.”15 said:
(emphasis original)
“The judicial and the executive must not mix.
These are two separate and distinct functions.
Judicial Respect for Prosecutorial
The accusatorial officers lay informations or
Independence
in some cases prefer indictments. Courts
The stated constitutional principle is reinforced by or the curia listen to cases brought to their
the judicial respect for prosecutorial independence, attention and decide them on their merits
and more specifically, the settled common law or on meritorious preliminary matters. If a
principle that the court would only intervene in very judge should attempt to review the actions
narrow circumstances in respect of the decision or conduct of the Attorney-General - barring
to prosecute or not to prosecute. Over the years, flagrant impropriety - he could be falling into
courts in Hong Kong and other leading common a field which is not his and interfering with the
law jurisdictions have shown great deference for administrative and accusatorial function of the
the principle of prosecutorial independence. Attorney-General or his officers. That a judge
must not do.”17
Canada
More recently, the principles in R v Power were
In the judgment of the majority of the Supreme applied in the decision of the Supreme Court of
Court of Canada in R v Power, L’Heureux-Dube J Canada in Krieger v Law Society of Alberta.18
remarked as follows: Iacobucci and Major JJ identified certain matters
as the core elements of prosecutorial discretion as
“It is manifest that, as a matter of principle follows:
and policy, courts should not interfere with
prosecutorial discretion. This appears clearly “[46] Without being exhaustive, we believe

15
Department of Justice, The Statement of Prosecution Policy and Practice (2002), para 1.1.
16
(1994) 89 CCC (3d) 1, at p 14.
17
(1983) 8 CCC (3d) 532 at 539.
18
(2002) 217 DLR (4th) 513.

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[49] Within the core of prosecutorial discretion,

the courts cannot interfere except in such
circumstances of flagrant impropriety or in
actions for ‘malicious prosecution’ . . . In all such
cases, the actions of the Attorney General will
be beyond the scope of his office as protected
by constitutional principle, and justification for
such deference will have evaporated.”19

Supreme Court of Canada, Ottawa

United Kingdom
the core elements of prosecutorial discretion
encompass the following: (a) the discretion
Similar respect for prosecutorial independence
whether to bring the prosecution of a charge
can be found in cases of the United Kingdom. In
laid by police; (b) the discretion to enter a stay
a series of cases the limited degree to which the
of proceedings in either a private or public
court can intervene has been emphasized. In the
prosecution . . . ; (c) the discretion to accept a
context of judicial review, while the Divisional Court
guilty plea to a lesser charge; (d) the discretion
has power to review a decision of the Director of
to withdraw from criminal proceedings
Public Prosecutions for England and Wales not
altogether… ; and (e) the discretion to take
to prosecute, the power is one to be sparingly
control of a private prosecution… While there
exercised. This approach was clearly spelt out by
are other discretionary decisions, these are
the English Divisional Court in R v DPP ex parte C:
the core of the delegated sovereign authority
peculiar to the office of the Attorney General.
“From all of those decisions it seems to me
that in the context of the present case this
[47] Significantly, what is common to the court can be persuaded to act if and only if
various elements of prosecutorial discretion it is demonstrated to us that the Director of
is that they involve the ultimate decisions as Public Prosecutions acting through the Crown
to whether a prosecution should be brought, Prosecution Service arrived at the decision not
continued or ceased, and what the prosecution to prosecute:
ought to be for. Put differently, prosecutorial
discretion refers to decisions regarding the (1) because of some unlawful policy (such
nature and extent of the prosecution and the as the hypothetical decision in Blackburn
Attorney General’s participation in it . . . not to prosecute where the value of goods
stolen was below £100); or

19
Ibid, at paras 46, 47 and 49.

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 (2) because the Director of Public Prosecutions reiterated in R (On the application of Stephens) v
failed to act in accordance with her own DPP.22 In that case, the Divisional Court referred
settled policy as set out in the Code; or to ex parte C and the guidance given that “the
(3) because the decision was perverse. It intervention should be sparing and only on
was a decision at which no reasonable the grounds of unlawful policy, failure to act in
prosecutor could have arrived. . . .”20 accordance with policy, and perversity”.23 The court
rejected a renewed application for permission to
The Divisional Court added that it was one of those move for judicial review in respect of the decision of
rare cases where the Director of Public Prosecution’s the Director of Public Prosecutions not to prosecute
decision not to prosecute was shown to be flawed the relevant accused for manslaughter in respect of
because the relevant legal adviser did not approach a Mr Hunter’s death.
the question in accordance with the settled policy
of the Director of Public Prosecutions.21 In the earlier case of R v DPP ex parte Manning
and Another,24 an English Divisional Court quashed
The guidelines contained in ex parte C have been a decision not to prosecute in very exceptional

20
[1995] 1 Cr App R 136, at 141C-D.
21
Ibid, at 144B-C.
22
CO/2506/2000 (transcript, 19 Oct 2000).
23
Ibid, at para 22.
24
[2001] 1 QB 330.

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 NOVEMBER 2008 ISSUE No.11

circumstances. The applicants’ brother, who prospect of convicting any of the officers of any
had been remanded in prison custody awaiting offence arising out of the deceased’s death. The
trial for an offence of violence, died of asphyxia applicants, having unsuccessfully requested full
while under restraint following an altercation reasons for that decision, sought permission to
with two officers. His death was investigated by apply for judicial review to challenge the lawfulness
the police and the papers were referred to the of the decision. Following the grant of permission
Crown Prosecution Service. At a coroner’s inquest to apply for judicial review, the caseworker’s review
the evidence indicated that death had resulted note setting out his full reasoning was served on
from the manner in which one of the officers had the applicants in the proceedings.
held the deceased’s head during the incident
and the jury returned a lawful verdict of unlawful The Divisional Court, in respect of the substantive
killing. A specialist senior caseworker in the application, held that there was no absolute
Crown Prosecution Service undertook a detailed obligation imposed on the Director to give reasons
examination of all the available evidence, including for a decision not to prosecute. However, since
that adduced at the inquest. Having referred to the right to life was the most fundamental of all
the weaknesses and inconsistencies of the prison human rights and since the death of a person in
officers’ evidence, he rejected alternative potential the state’s custody which resulted from violence
charges and considered, in respect of unlawful act inflicted by its agents necessarily aroused concern,
of manslaughter, that it was only the fatal force to the Director would be expected, in the absence
the deceased’s neck which could be characterized of compelling grounds to the contrary, to give
as excessive so that the only potential defendant reasons for such a decision where it related to a
was the officer identified as holding the head. death in custody in respect of which an inquest
He concluded that there was a prima facie case jury had returned a lawful verdict of unlawful killing
against that officer but no realistic prospect of the implicating an identifiable person against whom
prosecution being able to establish that excessive there was prima facie evidence, in order to meet
force had been used deliberately, rather than as the expectation that, if a prosecution did not follow,
the result of an attempt to effect proper restraint a plausible explanation would be provided, and to
which had been frustrated by the struggle with the vindicate the decision by showing the existence of
deceased. solid grounds to support it. In granting relief and
quashing the decision, the Divisional Court held
In communicating his decision not to prosecute, that although the court would exercise its power of
the specialist senior caseworker stated that there review sparingly, the standard should not be set so
was insufficient evidence to justify any criminal high as to deprive an aggrieved citizen of his only
prosecution and that he was not satisfied that effective remedy. Since the caseworker had not
the available evidence would provide a realistic addressed and resolved specific matters which the

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 officer would have to overcome to defeat the prima abuse of process are raised.”27
facie case judged to lie against him and since an
objective appraisal of the prospects of a successful The learned editors of Halsbury’s Laws of Hong
prosecution required those matters to be taken into Kong, citing ex parte C in support, have taken the
account, the caseworker’s failure to do so vitiated view that after Reunification the position appears to
the Director’s decision. be as follows:

It is significant that in R (On the application of “The decision not to prosecute is susceptible,
Stephens) v DPP, the Divisional Court dealt with in very narrow circumstances, to judicial review
the approach to judicial intervention in ex parte but such intervention would only be considered
Manning and clarified that there was no departure where it was demonstrated that (1) the decision
in the Manning case from the guidelines laid down was the result of an unlawful prosecution policy;
in earlier cases, including ex parte C, and that the (2) the decision ignored established policy; or
test remained that which was adumbrated in ex (3) the decision was perverse.”28
parte C.25
In its recent judgment in Kwan Sun Chu Pearl v
Hong Kong Department of Justice,29 the CA observed that
whether Keung Siu Wah precludes judicial review in
Similar reluctance to intervene can be found in relation to the decision of the Department of Justice
Hong Kong case law before reunification.26 For is an open question as far as Court of Final Appeal
example, in Keung Siu Wah, the CA held that “it (“CFA”) is concerned and it may be that, despite
is a constitutional imperative that the Courts do Young v Bristol Aeroplane Co Ltd,30 the matter is
not attempt to interfere with the Attorney General’s open to review by the CA as well.
discretion to prosecute, but once the charge or
indictment comes before a Court for hearing, it The CA in Re C (A Bankrupt) held that what BL 63
can consider whether the prosecution should be does, apart from its prime purpose of prohibiting
allowed to continue if grounds amounting to an political interference, is to reflect the boundary that

25
See n 22 above, at paras 24 and 25. Recent useful cases on judicial review of the prosecutorial discretion also include R v DPP, ex p Kebilene [2000]
2 AC 326; R(D) v Central Criminal Court [2004] 1 Cr App R 540; Weininger v R [2003] 212 CLR 629 (per Kirby J at 654). In the Northern Ireland context,
see Re Adams’s Application for Judicial Review [2001] NI 1 (per Carswell LCJ at 9).
26
See Cheung Sou Yat v R [1979] HKLR 630; Tang Yee Chun v Attorney General [1988] 2 HKLR 408; Keung Siu Wah v Attorney General [1990] 2 HKLR
238; R v Harris [1991] 1 HKLR 389.
27
Keung Siu Wah v Attorney General, ibid, at 255E-F.
28
Halsbury’s Laws of Hong Kong, Vol 9 (2002 Reissue), para 130.627.
29
[2006] 3 HKC 207 in which the application by the applicant for leave to apply for judicial review of the decision of the Director of Public Prosecutions
not to prosecute an alleged attacker of the applicant was refused by the Court of First Instance (“CFI”). The applicant appealed to the CA against the
refusal by the CFI but the appeal was dismissed by the CA.
30
[1944] 1 KB 718. The CFA has recently held in A Solicitor v Law Society of Hong Kong [2008] 2 HKLRD 576 that the rule in Young v Bristol Aeroplane,
namely that in civil cases the CA was bound by its own previous decisions subject to three exceptions, would no longer apply in Hong Kong. The
rule has been replaced by “the plainly wrong test”: the CA is bound by its previous decisions but it may depart from a previous decision where it is
satisfied that it is plainly wrong.

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 NOVEMBER 2008 ISSUE No.11

protects the SJ from judicial encroachment upon his for prosecutorial independence whether under a
right to decide whether to institute a prosecution, written constitution or not. As observed by the CA
what charge to prefer, whether to take over a in Kwan Sun Chu Pearl v Department of Justice,
private prosecution, and whether to discontinue whether the CFA or the CA will review the decision
proceedings. However, the CA made clear that this in Keung Siu Wah remains an open question. In
does not mean that the courts are powerless to the light of the development of other common law
prevent an abuse of their process. It recognized jurisdictions, it would be difficult to persuade the
that there is authority for the proposition that courts that decisions of whether or not to prosecute
“dishonesty, bad faith or some other exceptional are immune from any review at all. However, the
circumstances” might found a basis for challenge settled common law principle is that the court
in the courts of the exercise in a particular case of would only intervene in very narrow circumstances
a prosecutorial prerogative.31 in respect of such decisions.

This review of comparative authorities is not In the recent case of RV v Director of Immigration
intended to provide an exhaustive statement of and Secretary for Justice,33 Hartmann J, following
the law.32 The authorities reflect judicial respect the CA decision in Re C (A Bankrupt), held that

31
Re C (A Bankrupt) [2006] 4 HKC 582, paras 21 and 22 referring to R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326.
32
For example, subsequent to ex parte C (n 20 above), the following grounds of review have been added by the courts of the United Kingdom, ie
improper motive and bad faith (see In the matter of an application by “D” for judicial review, transcript, CA, 10 April 2003, para 20).
33
RV v Director of Immigration and Secretary for Justice, [2008] 2 HKC 209 concerns an application for judicial review by the applicant, a citizen
apparently of the Republic of Congo, against the decisions of the Department of Justice to institute criminal proceedings against him and to proceed
with the prosecution of the charges of using a false travel document and making a false representation to an immigration assistant. The applicant
alleged that the decisions were inconsistent with, and contradicted, the SJ’s own prosecution policy. He also alleged that the decisions undermined
his basic right to seek asylum in Hong Kong. Finally, he claimed that the decisions constituted an abuse of process. Hartmann J held against the
applicant on all the three grounds and refused the application for judicial review.

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 BL 63 enshrines the independence of the SJ to
control criminal proceedings as he thought best
and that, in the exercise of that power, the SJ is free
of political interference and judicial encroachment.
BL 63
However, the SJ’s power is a constitutional power The Department of Justice
bestowed by the Basic Law, and must be exercised of the Hong Kong Special
within constitutional limits. It must be for the courts,
Administrative Region
in any given case, to determine whether the exercise
of that power has exceeded the constitutional
shall control criminal
limits through the means of judicial review. His prosecutions, free from
Lordship considered that the SJ would act outside any interference.
his powers if it could be demonstrated that he has
done so not on an independent assessment of the
merits but in obedience to a political instruction.
He further held that the SJ would act outside of in place an independent office of Director of Public
his powers if he acted in bad faith. Moreover, a Prosecutions to address the issue of accountability
rigid fettering of his discretion would fall outside ( and impartiality ) . 34 In the United Kingdom ,
of the SJ’s constitutional powers. His Lordship prosecutions are now conducted or supervised by
emphasized, though, that the remedy of judicial the Director of Public Prosecutions who acts under
review of the SJ’s control of criminal prosecution the superintendence of the Attorney General as
will only be granted in the rarest of cases. provided under the Prosecution of Offences Act
1985.35 In Australia, the Commonwealth Director
of Public Prosecutions was established under the
Accountability for Prosecutorial
Director of Public Prosecutions Act 1983.36 The
Decisions
Australian Attorney General has the power to issue
Given the constitutional principle of prosecutorial guidelines and directions to the Commonwealth
independence entrenched under BL 63, the Director of Public Prosecutions.37 However, in the
question arises of the means of accountability context of Hong Kong, it is doubtful if there is any
of the SJ for his decisions of whether or not to scope for an independent office of the Director of
prosecute. Some overseas jurisdictions have put Public Prosecutions in view of BL 63.

34
Bruce A MacFarlane, “Sunlight and Disinfectants: Prosecutorial Accountability and Independence Through Public Transparency” (n 4 above) at pp
283-290.
35
Halsbury’s Statutes of England and Wales, Vol 12(1) (4th ed, 2005 Reissue) 993; I Grenville Cross, “Focus on the Discretion Whether to Prosecute: The
DPP and Exercise of Prosecutorial Discretion” (n 3 above) at p 404.
36
Acts of the Parliament of the Commonwealth of Australia (Passed During the Year 1983) (Canberra: Australian Government Publishing Service, 1984),
p 1590.
37
Director of Public Prosecutions Act 1983, s 8.

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 NOVEMBER 2008 ISSUE No.11

There are two means by which a private citizen QC, Attorney General of England and Wales,
may hold the SJ to account. First, the right of a explained to Parliament in 1992:
private individual to institute a private prosecution
for a breach of the law is undoubtedly a valuable It is extremely important that where
safeguard for balancing the decision of the somebody has not been prosecuted or
prosecuting authority not to prosecute.38 Second, where a prosecution has been discontinued
it is possible that decisions of whether or not to against somebody, the evidence that would
prosecute are subject to judicial review by the have been available had that prosecution
courts, although they may only intervene in very continued should not be paraded in public.
narrow circumstances.
25.5 The public are entitled to know the general
The Legislative Council (“LegCo”) may ask for principles which the prosecution apply to the
information and call for explanations in respect of cases it decides. It will not, however, usually be
decisions as to whether to prosecute in specific in the interests of justice for the prosecution to
cases.39 There is no doubt that, by answering go further and to give details in individual cases.
questions and explaining decisions of prosecution No distinction exists in this regard between
in the LegCo, the SJ may enhance his accountability decisions to prosecute and decisions not to
to the public. However, there is a limit to the extent prosecute. This policy is rooted in fairness to
of disclosure of reasons for prosecution decisions. the suspect. As Michael Thomas QC, Attorney
The parameters are reflected in The Statement of General, told the LegCo, in 1987:
Prosecution Policy and Practice as follows:
There are good reasons why the Attorney
“25.4 Reasons for decisions may not be given General does not normally explain in public
in any case where to do so would adversely a decision not to prosecute in a particular
affect the interests of a victim, a witness, a case. It is rare for any public announcement
suspect or an accused, or would prejudice the to be made of that decision because it
administration of justice. In particular, public would reveal unfairly that someone had
discussion of a decision not to prosecute might been under suspicion for having committed
amount to the trial of the suspect without the a criminal offence. And even where that
safeguards which criminal proceedings are fact is known, to give reasons in public for
designed to provide. As Sir Patrick Mayhew not prosecuting the suspect would lead to

38
The ability for individuals to mount criminal proceedings is fundamental to Hong Kong’s criminal justice system. Private prosecutions are subject to
the control by the SJ as discussed in para 26 of the CA’s decision in Re C (A Bankrupt) (cited in n 5 above): “A private prosecution, once commenced,
may be taken over by the Secretary [for Justice] and continued and discontinued as he sees fit.”
39
BL 73 provides the LegCo with the powers and functions to, inter alia, raise questions on the work of the government, to debate any issue concerning
public interests, and to receive and handle complaints from Hong Kong residents.

P13
 public debate about the case and about requirement of proof beyond reasonable doubt.
his guilt or innocence. The nature of the It has always been a cherished feature of Hong
evidence against the suspect would have Kong’s system that the only proper forum for the
to be revealed. Then some might say that determination of questions of guilt or innocence of
that was proof enough of guilt, and the crime is the court, where the suspect has the right
suspect would find himself condemned by to a fair trial in accordance with the rules of criminal
public censure . . . [I]n our legal system, the justice. This policy has served the interests of
only proper place for questions of guilt or justice in Hong Kong well over the years.
innocence to be determined is in a court,
where the accused has the right to a fair More detail about the basis for prosecution
trial in accordance with the rules of criminal decisions may, however, be given in exceptional
justice, and the opportunity to defend circumstances. In two recent cases, the statements
himself.”40 of the SJ and the Director of Public Prosecutions
on the decision not to prosecute provided to the
Indeed, there has been firmly in place for many LegCo went into greater detail, in respect of facts
years in Hong Kong, in England, and elsewhere in and legal reasoning, than ever before because
the common law world, a prosecutorial policy of of the extent of public concern aroused and the
not disclosing in detail the reasons for prosecution special circumstances of the cases.
decisions. Instead, the criteria applicable are
disclosed, namely, whether there is sufficient In December 2003, the Department of Justice
evidence to prosecute and whether it is in the decided not to prosecute the former Financial
public interest to prosecute. This policy has been Secretary, Mr Anthony Leung, for his actions
consistently applied in Hong Kong. It is a policy in respect of a car purchased shortly before an
which is both sound and just. It ensures fairness increase in the First Registration Tax in the 2003
to the suspect. It safeguards the integrity of the Budget in March 2003. Independent opinions were
criminal justice system and protects the legitimate obtained from two outside leading counsel who
interests of those caught up in that system. It also advised that there was insufficient evidence to
ensures that the fundamental safeguards provided charge Mr Leung with the common law offence of
for a defendant in a criminal trial are not swept misconduct in public office.41 In January 2006, the
away in the course of a nonjudicial enquiry, where Department of Justice decided not to prosecute Mr
there are no rules of evidence, no presumption of Michael Wong, a retired judge of the CA, for allegedly
innocence, no right of cross-examination and no deceiving his principal, ie the judiciary, into granting

40
Department of Justice, The Statement of Prosecution Policy and Practice (2002), paras 25.4 and 25.5.
41
Minutes of special meeting of the Panel on Administration of Justice and Legal Services of the LegCo on 26 December 2003 (LC Paper No
CB(2)1391/03-04).

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him leave passage allowance by the use of false fundamental principle is enshrined in a manner
documentation between August 1998 and February consistent with the entire theme of the Basic
2001. An independent opinion was obtained from Law. The SJ is not, and should not be, subject
an outside leading counsel who advised that there to pressure, political or otherwise, in making
was insufficient evidence to charge Mr Wong.42 In prosecutorial decisions. This constitutional
both cases, the advices given by the outside leading guarantee is underpinned by judicial respect for the
counsel were summarized in the statements of the prosecutorial function, and, more specifically, by
Director of Public Prosecutions provided to the the settled common law principle that the courts
LegCo. will only intervene in very narrow circumstances in
respect of the decision to prosecute or not.
Save in exceptional circumstances, it is not the
practice of those who have responsibility for the This, however, does not mean that the SJ is
conduct of public prosecutions in Hong Kong unaccountable for prosecutorial decisions, or that
to indicate in any detail the basis of particular he cannot be held to account. The right of a private
prosecutorial decisions. This practice reflects individual to institute a private prosecution for a
the traditions of the common law world, which breach of the law provides a balance of the SJ’s
recognize that once a decision has been taken not decision-making function. The decision of whether
to prosecute a person the position of the suspect or not to prosecute may also be amenable to judicial
must be safeguarded. Issues of guilt or innocence review, although it seems clear that the courts
should be determined in a court of law, rather than will only intervene in very narrow circumstances.
through public debate or media comment. Furthermore, by answering questions and explaining
prosecutorial decisions in the LegCo, within certain
Summary
parameters, the SJ may enhance his accountability
The prosecutorial independence of the SJ is a to the public.
linchpin of the rule of law, and through BL 63 this

42
Minutes of special meeting of the Panel on Administration of Justice and Legal Services of the LegCo on 3 February 2006 (LC Paper No CB(2)2526/05-
06).

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