For discussion EC(95-96)52
on 2 November 1995

ITEM FOR ESTABLISHMENT SUBCOMMITTEE
OF FINANCE COMMITTEE

HEAD 92 - LEGAL DEPARTMENT
Subhead 001 Salaries

Members are invited to recommend to Finance Committee the creation of the following permanent posts in the Prosecutions Division of the Legal Department -

3 Deputy Principal Crown Counsel
(DL2) ($95,550 - $101,450)

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PROBLEM
PROPOSAL
JUSTIFICATION

Bill of Rights (BOR) Section
COMMERCIAL CRIME (B) SECTION
Independent Commission Against Corruption (ICAC) Section

FINANCIAL IMPLICATIONS
BACKGROUND INFORMATION
CIVIL SERVICE BRANCH COMMENTS
RECOMMENDATION OF THE STANDING COMMITTEE ON DIRECTORATE SALARIES AND CONDITIONS OF SERVICE
Statistics on Workload of Prosecutions Division Number of Cases Handled and Number of Days on Court Appearance
Statistics on Workload of Prosecutions Divisions Number of Pieces of Advice Given
Deputy Principal Crown Counsel (Bill of Rights)
Deputy Principal Crown Counsel (CCU)
Deputy Principal Crown Counsel ICAC (II)

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PROBLEM

The existing Directorate establishment of the Prosecutions Division of the Legal Department is inadequate to cope with the increasing work commitments which require input at that level.

PROPOSAL

2. The Attorney General (AG) proposes the creation of three permanent posts of Deputy Principal Crown Counsel (DPCC) (DL2).

JUSTIFICATION

3. The Prosecutions Division of the Legal Department (the Division) is responsible for all prosecutions in Hong Kong. Conducting prosecutions in court and providing legal advice to the law enforcement agencies, including the Police and the Independent Commission Against Corruption, constitute its core activities. Despite growing caseload and pressure of work, no directorate posts have been created since 1988. Statistics showing the workload of the Division are at Enclosures 1 and 2.

4. The Division has over the years managed to cope with the additional workload through internal redeployment. For operational and administrative efficiency, AG has redeployed resources by -

1. rescheduling areas of responsibilities among Sections to meet changing needs; and
2. redeploying DPCC posts to handle and supervise new work which deserves priority treatment but for which resources are inadequate.

A total of five DPCC posts have been redeployed to enable the creation of five Sections to handle areas of work of growing importance. These five new Sections are the Trial Preparation (District Court) Section, Asset Recovery Section, Bill of Rights Section, and Commercial Crime (B) and (C) Sections. Charts showing the Directorate structure of the Division before and after the reorganisation are at Enclosures 3 and 4.

5. Despite the reorganisation and consistent efforts to redeploy resources, the demands on the Division have continued to increase and the Division has reached its capacity limit. AG therefore considers it essential to reinforce the Division by creating three additional Deputy Principal Crown Counsel posts - one for the Bill of Rights (BOR) Section and two for handling increased workload on commercial crimes and corruption.

Bill of Rights (BOR) Section

6. The additional work arising from the enactment in 1991 of the Bill of Rights Ordinance was originally absorbed by the Section dealing with appeal cases. The BOR Ordinance is new in Hong Kong. This makes preparation of cases more time-consuming and complex as Counsel needs to undertake very considerable research, not only into Hong Kong law but also law in other jurisdictions, especially Canada, the United States and the European Court of Human Rights. In addition, he needs to prepare the arguments very carefully bearing in mind not only the case in question but also the effects of the arguments on previous and possible future BOR cases. All these are difficult tasks necessitating the advice and leadership of a directorate officer. The steady increase in workload made the setting up of a separate Bill of Rights Section necessary. This was done by redeployment in September 1991. The BOR Section is now headed by a DPCC redeployed from the Court Specialists Section.

7. The DPCC in the Court Specialists Section is responsible for the court work of 11 Senior Crown Counsel. This span of control makes close supervision difficult and is becoming untenable given the steady increase in the number of cases handled in-house. This rising trend is likely to continue in view of a policy decision within the Legal Department to rely less on briefing out. AG therefore finds it necessary to return the redeployed DPCC post from the BOR Section to the Court Specialists Section. As a result, the BOR Section is left without any Directorate supervision.

8. For the past three years, the number of advice and trials with BOR implications handled by the BOR Section is as follows -

Most pieces of advice given are long and complex, requiring considerable time, research and consideration. With limited manpower, the need to handle more requests for advice made it necessary for the Section to be more selective in taking up court duties - while the Section would handle the trials of more important BOR cases, it would prepare outlines of argument in respect of other cases in order to enable Counsel from other Sections in the Prosecution Division and Counsel on fiat to conduct those cases. This explains the declining number of trials in the statistics shown above. In addition, the Section also advises on policy and legislative initiatives with possible BOR implications to ensure that a proposal is feasible and not contrary to BOR. This aspect of work also requires giving advice on experience in other jurisdictions.

9. On top of his advisory and trial-related duties, the proposed DPCC has to provide training to other members of the Division and to law enforcement agencies on human rights matters. In the past three years, the DPCC redeployed from the Court Specialists Section has given on average 12 lectures every year. So far this year, he has conducted eight lectures. The provision of training is essential since litigation on BOR matters is still very active but a relatively new area and the law enforcement agencies have to be briefed on a regular basis. The lack of additional resources at present have imposed considerable constraints on this area of work.

10. The main duties and responsibilities of the proposed DPCC post in the BOR Section are at Enclosure 5.

Commercial Crime (B) Section

11. Commercial crimes have registered a significant increase in Hong Kong. Many of these cases are very complex and time-consuming, involving voluminous documentation and huge amount of research and analysis. These cases therefore require meticulous preparation by the prosecuting Counsel. Taking one of the cases being handled as an example, the Police have seized two million pages of documentary exhibits. Many a time, the complexity of the cases are such that officers at Directorate level have to lead the whole process of advice, preparation and trial.

12. The Section also works closely with the Securities and Futures Commission (SFC). The SFC often refers cases involving market manipulation and possible offences under the Crimes Ordinance arising from SFC investigations to the Section for advice. In 1993 and 1994, the Section dealt with four and nine cases respectively. In the first half of 1995, it has already advised on three. Most of these cases involve a lot of documentation and are highly complex in nature, and therefore require the attention of a directorate officer.

13. Apart from increased complexity, the number of cases requiring legal advice and trial has also been rising steadily, as illustrated below -

Among these cases, those in connection with forgery, particularly credit card forgery, tax evasion, smuggling, copyright and trade description have drawn substantial public attention.

14. At present there is only one DPCC in the Commercial Crimes (B) Section. AG considers that an additional DPCC is required in the Section to cope with the increased activities. The main duties and responsibilities of the proposed DPCC post are at Enclosure 6.

Independent Commission Against Corruption (ICAC) Section

15. The workload of this Section arising from ICAC investigations has increased steadily as shown below -

Volume aside, the cases are also getting more complex and involving more voluminous documentation than before. Consequently, a lot of time is required for reading into prosecution files and attending conferences with case officers, not to mention the time required for attending trials.

16. One of the reasons for the rise in the workload of the Section is the growing community concern about corruption and the ICAC’s enhanced efforts in combating corruption. In the last 12 months, the ICAC has trebled the staff on its investigation teams on public sector corruption and has re-deployed 60 investigators to combat corruption in the disciplined services. In addition, the ICAC has also created a new investigation team to investigate election cases with illegal activities. Even though the elections are already over, the advisory work on such cases will continue and it may well be another 12 months before such cases come up for trial. Proceedings arising out of suspected contravention of the election law are likely to go on for a couple of years.

17. Cases handled by the ICAC Section are often sensitive and difficult as they involve the investigation and prosecution of public figures and senior corporate officials, generate a lot of publicity and often involve challenges by the defence on BOR grounds and against the ICAC’s statutory powers. The ICAC Section therefore needs to ensure that every case is well prepared.

18. There is at present only one DPCC in the Section. Having considered the need to closely supervise the increased activities of the Section, AG considers an additional DPCC post necessary. The main duties and responsibilities of the proposed DPCC post are at Enclosure 7.

FINANCIAL IMPLICATIONS

19. The additional notional annual salary cost at mid-point for the proposal is -

20. Sufficient provision has been included in the 1995-96 Estimates to meet the cost of this proposal.

BACKGROUND INFORMATION

21. Government recognises the need for adequate resources to cope with the work arising from the enactment of the Organised and Serious Crimes Bill and the Hong Kong Bill of Rights, as well as strengthened enforcement action against commercial fraud and bribery, and the rising number of immigration cases and cross-border matters. In the policy commitments announced by the Governor in his 1994 Policy Address, we said that we would increase the staffing of the Prosecutions Division so that it can prosecute criminals more efficiently.

CIVIL SERVICE BRANCH COMMENTS

22. The Civil Service Branch considers that the revised organisation of the Prosecutions Division is acceptable and that the grading, ranking and number of the proposed posts are appropriate having regard to the new areas of work and the increasing work demands in the Division.

RECOMMENDATION OF THE STANDING COMMITTEE ON DIRECTORATE SALARIES AND CONDITIONS OF SERVICE

23. The Standing Committee on Directorate Salaries and Conditions of Service has advised that the grading of the proposed posts would be appropriate if the posts were to be created.

Legal Department
October 1995

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Enclosure 1 to EC(95-96)52

Statistics on Workload of Prosecutions Division Number of Cases Handled and Number of Days on Court Appearance

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Enclosure 2 to EC(95-96)52

Statistics on Workload of Prosecutions Divisions Number of Pieces of Advice Given

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Enclosure 5 to EC(95-96)52

Deputy Principal Crown Counsel (Bill of Rights)

Main duties and responsibilities

Responsible to the Deputy Crown Prosecutor (DCP 2) of sub-division II of the Prosecutions Division for -

1. advising on cases in which a point concerning the operation and effect of the Bill of Rights arises;
2. appearing in court proceedings, both trials and appeals, in connection with Bill of Rights cases;
3. educating serving Counsel and other law enforcement agencies on the Bill of Rights; and
4. discharging the managerial functions and duties of a Directorate Officer in the Bill of Rights Section, including the supervision of Senior Crown Counsel and Crown Counsel.

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Enclosure 6 to EC(95-96)52

Deputy Principal Crown Counsel (CCU)

Main duties and responsibilities

Responsible to the Deputy Crown Prosecutor (DCP 3) of sub-Division III of the Prosecutions Division for -

1. advising the Police and ICAC on major and sensitive commercial crime cases;
2. appearing in court proceedings, both trials and appeals, including the Insider Dealing Tribunal, in connection with major commercial crimes;
3. advising on and conducting prosecution on behalf of the Securities and Future Commission;
4. advising, preparing and prosecuting cases relating to the Customs and Excise Department, this involves matters in connection with breach of copyright, trade mark infringement and offences concerning Trade Description Ordinance;
5. proposing amendments to cover loopholes and procedural problems in existing legislation; and
6. performing the managerial duties and functions of a Directorate Officer in the Commercial Crime Unit, including the supervision of Senior Crown Counsel and Crown Counsel.

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Enclosure 7 to EC(95-96)52

Deputy Principal Crown Counsel ICAC (II)

Main duties and responsibilities

Responsible to the Deputy Crown Prosecutor (DCP 3) of sub-Division III of the Prosecutions Division for -

1. advising ICAC on major corruption cases;
2. appearing in court proceedings, both trials and appeals, in connection with major corruption and election cases;
3. advising the Attorney General and the Director of Public Prosecutions on corruption issues, prosecution policies and legislative proposals and amendments; and
4. discharging the managerial functions and duties of a Directorate Officer in the ICAC team, including supervising the work of Senior Crown Counsel and Crown Counsel.

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