XN000022-1995-06-07 — Page 25

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Constitutional position

Mr President, let me start in the sense which Mr Martin Lee left off and that is by setting up the constitutional position concerning prosecutions in Hong Kong. Decisions to prosecute are, under our constitution, the sole responsibility of the Attorney General. This constitutional doctrine was recognised in a statement released in February 1963 at the direction of the then Governor which said this:

"It is the Attorney General who is responsible for all prosecutions in Hong Kong. It is for the Attorney General alone to decide whether or not prosecutions shall be instituted in any particular case or class of case, and his responsibility to control and conduct them."

That remains the position to-day. The important point to note is that when the Attorney General of the day makes a decision to prosecute or not to prosecute he does so independently of the Government. He acts in a semi-judicial way, free from orders or pressure from the Government or from any other quarter. And at this point I would say, Mr President, that I am in full agreement with the sentence just expressed by Mr Martin Lee on this very important aspect. So the responsibility is his, and his alone. That constitutional independence, jealously preserved and guarded, is, I believe, a bulwark for the rule of law in Hong Kong, and I think it is reassuring to note, as Mr James To pointed out, that the Basic Law provides for the continuation of the principle, by stating that the Department of Justice shall control criminal prosecutions "free from any interference".

But how, in practice, does the prosecution process work? And what are the present safe-guards, the checks and balances, to ensure that this awesome power, for such it is, is properly used, and that the public can have confidence in this vital aspect of the rule of law and administration of criminal justice?

In most instances, as one might expect, the power to make decisions in relation to prosecutions has been delegated to the Director of Public Prosecutions and his officers. But not all powers have been delegated: some remain personal to the Attorney General, for example, decisions under the Complex Commercial Crimes Ordinance and under section 5 of the Organized and Serious Crimes Ordinance. Similarly, the power to enter a nolle prosequi - that is to discontinue a prosecution and to seek a review of sentence, have not been delegated. That powers I exercise personally. Some offences cannot be prosecuted without my personal consent, for example, prosecutions under section 10 of the Prevention of Bribery Ordinance.

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