CONFIDENTIAL
Mr
HKD
noted
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FROM:
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ний
-"FFB 1988
Paul Fifoot
DATE:
20 January 1988
HONG KONG:
ADDITIONAL LEGAL TOPICS
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In addition to the application in Hong Kong of the International Covenant on Civil and Political Rights, I had discussions with Mr Michael Thomas on the Prosecuting Authority and mutual legal assis-
1.
tance.
Prosecuting Authority
2.
Mr Thomas said that the view of the Attorney-General's Chambers (which apparently he shared) was that there would be considerable advantage in separating the responsibilities for prosecution (and hence the office of Director of Public Prosecutions) from the office of the Attorney-General. Their view was that the English conventions whereby the Attorney-General had an independent role as regards pro- secutions could not easily be translated into post-1997 arrangements it was difficult for anyone not brought up in the English system to understand how an Attorney-General could stand aside from his position as the Governor's principal legal adviser and bring an independent mind to bear on prosecution issues - and therefore a change had to be made. The DPP should become independent of the Attorney- General and, like the independent Commissioner Against Corruption, be responsible for making a separate report to the legislature. Mr Thomas noted that the BLCC had expressed the view that the present system should be maintained, but notwithstanding that, he hoped we could agree on separation.
3. I said that we had given consideration to this point sometime ago and shared the views which Mr Thomas had expressed. A new factor since we had formed that opinion was the Chinese proposals as regards offices which should be reserved for Chinese nationals. It was like- ly that if the office became independent of the Attorney-General, the Chinese would take the view that the DPP, like the ICAC, should be a Chinese national. Mr Thomas said he saw no difficulties about that.
4.
I also mentioned the political aspects of proposing a change of this nature to the Chinese. I did not get the impression that Mr Thomas had considered that this was a matter which he should take into account, though he recognised that it was a relevant factor.
5.
My impression, from looking at various minutes that were shown to me, is that the Governor is not enthusiastic about making the DPP independent of the Attorney-General. I remain of the view that it would be advantageous for Hong Kong to make the separation so that the independence of the Prosecuting Authority does not depend on the peculiarly English acceptance of the schizophrenic character of the office of the Attorney-General.
16.
CONFIDENTIAL