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a message for Donald Tsang and Henry Tang

29 Feb 2012

Above suspicion

Grenville Cross says that, as a government minister and prosecutor, the secretary for justice must be open about his decisions to bring to court – or not – cases involving top officials. Otherwise, he risks damaging the system

Injustice anywhere,” said Martin Luther King, “is a threat to justice everywhere.” In Hong Kong, prosecutions are not controlled by an independent director of public prosecutions, as in many major common law jurisdictions, but by the secretary for justice, a government minister appointed by the central authorities on the recommendation of the chief executive.

When the secretary for justice, Wong Yan-lung, was urged last year to follow the example of the attorney general of England and Wales, and withdraw from involvement in public prosecutions, he declined to do so, a decision that has now come back to haunt him.

The allegations of impropriety currently swirling around Chief Executive Donald Tsang Yam-kuen, which some legislators have now referred to the Independent Commission Against Corruption, place the secretary for justice in an invidious position. Since he reports to the chief executive, and acts as his legal adviser, his ability to discharge his prosecutorial functions in relation to any ICAC investigation is wholly compromised. Real problems of perception have now arisen in a series of cases, fuelled by the insistence of the secretary on wearing two hats, one as minister and one as prosecutor.

Although it was revealed last year that at least two of the secretary’s fellow ministers had allegedly allowed illegal structures to exist on their properties, which is an offence punishable with imprisonment, no one was prosecuted. The education minister, Michael Suen Ming-yeung, even apologised for having failed to remove an unauthorised extension on the ground floor of his home in Happy Valley for five years, and for having ignored a demolition notice issued in 2006 by the department for which he himself was then responsible.

However, no clear reasons were ever provided to the public, by the secretary for justice or anyone else, as to why these ministers all escaped prosecution. This, inevitably, fanned suspicions of cronyism. Recent events have only compounded the situation, and demonstrated, yet again, the need for an independent director of public prosecutions.

The news that chief executive hopeful Henry Tang Yin-yen and his wife, Lisa Kuo Yu-chin, are being investigated by the Buildings Department over an allegedly illegal basement at their property in Kowloon Tong, once again places the spotlight on the secretary for justice. His department will, at some point, need to decide whether to prosecute or not.

If, once again, no prosecution is instituted despite the evidence, and no satisfactory reasons are given for the decision, some people might despair at the state of local justice. All, however, may not be lost, as the law provides the public with some means of redress.

An aggrieved citizen may bring a private prosecution against a criminal suspect. This is an ancient right in common law, and it provides a remedy for the individual who wishes to see the law enforced, as the legislature intended that it should be, save for good reason. This right was invoked, for example, by legislator Emily Lau Wai-hing in 1998, against the director of the Xinhua News Agency, for an alleged failure to comply with a data access request.

The English judge Lord Wilberforce has called the right of private prosecution “a valuable safeguard against inertia or partiality on the part of authority”.

Although the secretary for justice may intervene to stop a private prosecution, he must be on firm ground. Reasons for stopping the case would have to be provided to the private prosecutor and the magistrate. If the grounds were not reasonable, the private prosecutor could challenge the secretary’s intervention in the higher courts by way of a judicial review.

A judicial review is also another means by which a decision of the secretary for justice not to prosecute could be challenged. Although this remedy is only rarely granted, it would be open to a citizen to argue that the decision contravened established prosecution policy, or that the decision was perverse. If the evidence assembled by the Buildings Department in the Kowloon Tong investigation turns out to be substantial, a court might not find it too difficult to conclude that the secretary for justice’s failure to enforce the law smacks of perversity.

In sensitive cases, involving members or former members of the government, the secretary for justice must be transparent with the public. If, in defiance of international trends, he insists on retaining the control of prosecutions, he must clearly explain his actions. If the public are to have faith in prosecution decisions, they must understand why important suspects are being let off.

As things stand, people with clout are seemingly able to flout the law with impunity, and this can no longer be tolerated.

If the secretary for justice does not account satisfactorily for prosecution decisions, this could gravely damage the image of the criminal justice system, which would be an unfortunate legacy for his successor.

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors

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