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Prosecutorial independence assured

Introduction   Our criminal justice system plays a pivotal role by ensuring that crimes are effectively detected and investigated, and criminal cases are handled impartially and efficiently, whilst protecting the rights of all parties involved in the process. Recently there have been groundless criticisms against our criminal justice system and I would like to take this opportunity to set the record straight.   Charges of offences endangering national security not vague   Baseless allegations of vague charges of offences under the National Security Law (NSL) or other offences endangering national security under local laws have been made. As pointed out on various occasions, the NSL clearly specifies the elements of each offence, including the requisite acts (actus reus) and intent (mens rea). Under the common law system, the courts may further clarify the elements of an offence in adjudicating cases. For instance, in the Tong Ying-kit case1, the Court of Final Appeal has explained the elements of the offences of incitement to secession and terrorist activities. The court’s reasons for the verdict are freely accessible online.   Besides, in our criminal justice system, there are avenues for defendants to request further and better particulars of a charge and to complain about defects of a charge2. All procedural challenges will be duly considered and adjudicated fairly by the court.   Reporting restrictions in respect of pre-trial proceedings such as bail proceedings and committal proceedings are in place under existing laws (such as the Criminal Procedure Ordinance and the Magistrates Ordinance) to safeguard the fairness and integrity of the eventual trial. Notwithstanding the reporting restrictions, the relevant proceedings are nevertheless conducted in open court which members of the public and the media may attend and observe. Defendants may apply to the court for lifting of the reporting restrictions, which will be considered and adjudicated by the court, striking a balance between the defendants’ rights and other aspects of the public interest including that of a fair trial.   Bail application in cases concerning offences endangering national security handled fairly   In respect of bail, the Court of Final Appeal in the Lai Chee-ying case stressed the cardinal importance of the primary purpose of the NSL, which explains why there are more stringent conditions to the grant of bail in relation to offences endangering national security. The court also took the view that decisions as to whether or not to grant bail, involving a predictive and evaluative exercise, are a “juridical exercise carried out by the court as an exercise in judgment or evaluation, not the application of a burden of proof”3.   There are other common law jurisdictions (such as Canada, South Africa and Australia) where, in respect of certain classes of offences, not only is there no burden of proof on the prosecution to establish grounds for refusing bail, but a burden is placed on the accused to establish why continued detention, rather than release on bail, is not justified4. Furthermore, in some jurisdictions, the executive authorities are vested with powers to impose detention for long periods without charge in order to prevent acts endangering national security. For instance, the Internal Security Act of Singapore creates substantial executive powers for the president to authorise detention without charge for a period of up to two years (which is renewable) on grounds of national security. This rules out bail completely, too. Judicial review of such decisions taken under the act is precluded except only to ensure compliance with procedural requirements.   Contrary to the general misinformation that defendants charged with offences endangering national security are all denied bail because of the NSL, it is a matter of fact that a number of defendants have been released on bail after the courts duly considered the requirements stipulated in the NSL and relevant local laws. For example, as reported by the media, some defendants, including former legislators, who were charged with conspiracy to commit subversion, are currently released on court bail5.   Law enforcement powers exercised in accordance with law   In discharging duties, law enforcement authorities are authorised to exercise certain powers in order to facilitate their investigations. For example, they may apply to the court to obtain production orders or restraint orders under the Organised & Serious Crimes Ordinance for the purposes of investigating into an organised crime or preventing dissipation of property by criminal suspects. Such orders may be made on an ex parte application to a judge in chambers. The ex parte procedure for the authorisation of investigatory powers is necessary so as to prevent suspects from destroying evidence, dissipating proceeds of crime or committing other acts to obstruct investigation or pervert the course of justice, and is a common practice in many jurisdictions. There are provisions in the Implementation Rules for Article 43 of the NSL to enable the law enforcement authorities to take similar measures when handling cases concerning offences endangering national security. Nonetheless, our criminal justice system allows a party who is affected by the court order to apply to have it set aside or varied. The court, having reviewed all evidence, will adjudicate strictly in accordance with the applicable law in an impartial manner.   Trials held in timely manner   Generally speaking, a criminal case will first be brought up in a Magistrates’ Court after a charge has been laid. In the majority of cases, at the first appearance, the prosecution will ask for no plea to be taken because further investigation by the law enforcement authorities or other preparations for the case is required. When no plea is taken, the case will be adjourned for further hearing(s) until the parties inform the court that they are ready to proceed to trial.   The Department of Justice maintains close contact with the law enforcement authorities to ensure that cases are handled expeditiously and effectively. We will proactively explore and follow up on ways to expedite case management, such as seeking consolidation of cases where facts and evidence permit, agreeing on facts and evidence with the defence before trial as far as possible to reduce the number of witnesses to be called and hence, the length of trial.   However, it should be noted that the time taken between the institution of prosecution and the trial of each case depends on a multitude of factors, such as whether further investigation is required, whether the defendant needs time to obtain legal advice for consideration of his or her plea and to engage in plea negotiation with the prosecution, whether the defence requires certification of translated documents or makes any pre-trial application such as applications for further and better particulars, disclosure, lifting of reporting restrictions, severance of case with multiple defendants, preliminary inquiry, discharge, etc. It must be stressed that all applications are handled in accordance with established procedures and due process is fully observed. If a defendant, upon legal advice or otherwise, decides to make every possible procedural application irrespective of merits, he or she cannot at the same time conjure any complaint about delay which is only the natural consequence of exercising his or her entitlements to the fullest possible extent in a fair criminal justice system.   Duty of counsel   As guaranteed by the law, Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Meanwhile, our legal fraternity (including overseas admitted to full practice in Hong Kong) shoulders the primary responsibility for upholding the rule of law by performing their duty professionally whilst observing the rules of professional conduct.   In carrying out their duty, the personal safety of legal practitioners, like all other individuals, is well protected by law. This fundamental safeguard ensures that they should act professionally without fear or favour. Party in a litigation or their legal representatives, in the event of being intimidated, should report to Police with all the available evidence. Needless to say, one must refrain from knowingly deceiving or misleading the court or the police or indeed the public by false accusations, as such conduct not only harms the reputation of the legal profession the individual belongs, but may risk breaching the law.   Conclusion   Hong Kong is renowned for having a fair and mature criminal justice system. Our legislation is drafted with clarity and certainty, complemented by reasoned judgments to develop a respected jurisprudence. Legal principles and procedures in respect of granting bail and other court orders are clearly set out in our laws and duly followed in court. Defendants are entitled to exercise their rights in making procedural applications which, although possibly prolonging legal proceedings, is a price that will have to be paid so that the defendants’ choice of exercising their legitimate rights are respected and protected. Having said that, the department has taken every possible measure with a view to expediting the prosecution process and ensuring justice is served. Hence, suggestions that there are vague charges, that no defendants are granted bail, or that the delays in trial were caused by the prosecution, are plainly unsustainable once the actual facts are reviewed.   The principle of prosecutorial independence by the department is constitutionally guaranteed. Article 63 of the Basic Law stipulates that the department shall control criminal prosecutions, free from any interference. Not only our prosecutors act independently, I trust all members of the legal fraternity would discharge their duties professionally and honestly without fear or favour, and to uphold the fair and independent criminal justice system.   Notes: HKSAR v Tong Ying-kit [2021] HKCFI 2200 See rule 3 of the Indictment Rules (Cap. 221C) which provides that “every indictment shall contain …such particulars as may be necessary for giving reasonable information as to the nature of the charge”, and “a judge may order further particulars of an offence stated in an indictment to be delivered in any case in which he deems it expedient to do so”. HKSAR v Lai Chee-ying (2021) 24 HKCFAR 33, [2021] HKCFA 3, at paras. 62 and 68. See the examples mentioned in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, [2021] HKCFA 3, at para. 69. For example, see HCCP 113/2021 and HCCP 473/2021.   Secretary for Justice Teresa Cheng wrote this article and posted it on her blog on April 15.
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