TNAG-2329-FCO40-3373-Hong-Kong-contacts-with-academics-and-writers-1991 — Page 121

"[T]here is only one consideration which is altogether excluded,

and that is the repercussion of a given decision upon my personal or my party's or the Government's political fortunes; that is a consideration which never enters into account. Apart from that, the Attorney-General may have to have regard to a variety of considerations, all of them leading to the final question - would a prosecution be in the public interest, including in that phrase,

54 of course, in the interests of justice?"

So the first question is "How, if at all, does 1997 affect public interest considerations in the discretion to prosecute?"

"Prosecution may involve a question of public policy or national,

or sometimes international, concern; but in cases like that, the Attorney-General has to make up his mind not as a party politician; he must in a quasi-judicial way consider the effect of prosecution upon the administration of law and of government in the abstract rather than in any party sense

If political

considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the

Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.

But what are they? What could they be?

し

The views above relate to the exercise of the discretion to prosecute in England and Wales. In relation to a United Kingdom Dependent Territory, however, Roberts-Wray noted the following:-

"So long as a territory remains dependent and the Law Officers are

in the public service, the United Kingdom Government's supervision and control are sufficient to ensure that the same principles are observed. Nor are they affected if one may assume that (in a territory in which the Governor bears actual responsibility for the preservation of public order and welfare and has at his disposal all Government sources of information) the Attorney-General would consult him much more freely than an Attorney-General in England would consult his ministerial colleagues, at any rate when matters of government in the

abstract' are involved.

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I am not quite sure what that last sentence means, but I am concerned that in principle the Governor, or those acting on his behalf, could have an influence. In Hong Kong, the position has been stated by the Attorney-General to be as follows:-

"The suggestion that I would ever prosecute for political reasons is unworthy and is a suggestion which I refute in the strongest possible terms. I refute it because it is not the way we operate in Hong Kong, and because it is untrue."