For discussion EC(96-97)11
on 8 May 1996

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 -

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

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PROBLEM
PROPOSAL
JUSTIFICATION

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 (In-house)
Statistics on the Workload of Prosecutions Division: Number of Pieces of Advice Given
Deputy Principal Crown Counsel (CCU) (DL2)
Deputy Principal Crown Counsel ICAC (II) (DL2)

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PROBLEM

The existing Directorate establishment of the Prosecutions Division (the Division) of the Legal Department is inadequate to cope with the growing volume of work which requires input at that level.

PROPOSAL

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

JUSTIFICATION

3. The Division is responsible for all prosecutions and related work 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 a growing caseload and pressure of work, no permanent additional directorate posts have been created since 1988. Statistics showing the workload of the Division are at Enclosures 1 and 2.

4. The Division’s work is basically demand-led. The Division has over the years managed to cope with the additional workload through internal redeployment. For operational and administrative efficiency, the 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 from within the Division to enable the creation of five Sections to handle areas of growing importance and which deserve dedicated attention. 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 two additional DPCC posts for handling increased workload on commercial crimes and corruption.

Commercial Crime (B) Section

6. Commercial Crime (B) Section deals with general commercial crime and customs and excise cases. The number of commercial crime cases requiring legal advice and trial has been on the rise, as illustrated below -

Among these cases, those in connection with forgery, particularly credit card forgery, tax evasion, smuggling, copyright and trade description have grown most significantly.

7. Apart from increased volume, many of these cases are very complex and time-consuming, involving voluminous documentation and a huge amount of research and analysis. They 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. Frequently, the complexity of the cases is such that officers at Directorate level have to lead the whole process of advice, preparation and trial.

8. 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. The hearing of these cases is lengthy, often lasting for many months. In 1995, it advised on five. Most of these cases involve considerable documentation and are highly complex in nature, and therefore require the close attention of a Directorate officer.

9. At present there is only one DPCC in the Commercial Crimes (B) Section. AG considers that an additional DPCC is required to cope with the increased volume and complexity of work. The responsibilities of the proposed DPCC post are at Enclosure 5.

10. In the month of January 1996, 94 commercial crime files were submitted to the Prosecutions Division for advice. The average time taken to give advice on these files was 18 days. The proposed DPCC post, if created, will supervise and offer advice to his supporting staff in the Section and take up the more complex cases referred to the Section. AG estimates that the provision of the additional post would enable the time taken for the Division to give advice on commercial crimes files to be reduced by 25% to 14 days.

Independent Commission Against Corruption (ICAC) Section

11. This Section handles cases which arise from ICAC investigations. The workload of this Section has increased steadily as shown below-

12. 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. Over the past two years, the ICAC has increased from three to five the investigating groups targeted on public sector corruption, with four of them focussed primarily on the disciplined services. In addition, the ICAC has also formed a group for investigating election corruption and related illegal practices. Strengthened enforcement by ICAC has led to a rapid growth in the demand for the service of the counsel in the Section, as illustrated by the statistics in paragraph 11 above. Looking ahead, the ICAC also intends to create by 1998 another team to handle corruption in Village Representative Elections. AG therefore expects a continued increase in the workload of the ICAC Section, given that proceedings related to suspected contravention of the election law are likely to go on for a couple of years.

13. Volume aside, cases handled by the ICAC Section are becoming more complex and sensitive, often involving lengthy trials and challenges by the defence on Bill of Rights grounds and against the ICAC’s statutory powers. Documentation is becoming more voluminous than before, requiring a lot of reading time, researches and conferences.

14. There is at present only one DPCC in the Section. The Section needs reinforcement at the directorate level to ensure that the quality of its legal advice and the efficiency of the Section are not adversely affected by the growing volume and complexity of work. AG therefore considers an additional DPCC post necessary. The main duties and responsibilities of the proposed DPCC post are at Enclosure 6.

15. In the month of January 1996, ICAC submitted 61 case files to the Prosecutions Division for advice. The average time taken to give advice on these files was 21 days. The new DPCC post, if created, will supervise and offer advice to his supporting staff in the Section and take up the more complex cases referred to the Section. AG estimates that the provision of this additional post would enable the Section to reduce the time required by 25% to 16 days.

FINANCIAL IMPLICATIONS

16. The additional notional annual salary cost of this proposal at MID-POINT is -

17. The full annual average staff cost of the proposal, including salaries and staff on-cost, is $4,389,576. This proposal will not necessitate the creation of any non-directorate posts. We have included sufficient provision in the 1996-97 Estimates to meet the cost of this proposal.

BACKGROUND INFORMATION

18. Government recognises the need for adequate resources to cope with the work arising from the enactment of the Organised and Serious Crimes Ordinance, strengthened enforcement action against commercial fraud and bribery, and the rising number of immigration and cross-border matters. In his 1994 Policy Commitments, AG referred to the need for additional staffing resources for the Division so as to maintain the efficiency of the prosecution of criminals, despite the growing volume and complexity of work.

19. AG submitted a proposal (vide EC(95-96)52) on the creation of three permanent posts of DPCC for dealing with Bill of Rights, Commercial Crime and Independent Commission Against Corruption cases to the Establishment Subcommittee on 2 November 1995. We subsequently withdrew the paper because Members were generally of the view that it would not be appropriate to consider the proposal before the outcome of the review on the briefing out arrangement was available. The review was completed in December 1995. The recommendations focus on ways to improve the cost-effectiveness, transparency and accountability of the briefing out arrangements and have been implemented since February 1996. The review is on the procedural and administrative aspects of the briefing out arrangement and does not, therefore, alter the briefing out policy and hence has no implications for the staffing proposals of the crown counsel grade.

20. Taking into account the growing demands placed on the Division and the importance of the efficient and effective handling of commercial crimes and corruption cases to Hong Kong’s reputation as a business hub with good law and order, we consider it necessary to reinforce the directorate resources of the Division by the creation of two DPCC posts. With respect to the third DPCC post dealing with Bill of Rights cases originally proposed in EC(95-96)52, AG has managed pro tem to meet the demand by temporary redeployment from Section 3 (Court Specialists Unit 1, Triad & Organised Crimes) of the Prosecutions Division. Nevertheless, AG will monitor closely these two areas of work and reconsider the need for one permanent additional DPCC post when the Department has more concrete and definitive data on their probable workload on a long term basis.

21. The Director of Public Prosecutions (who heads the Division) briefed the Legal Panel on Administration of Justice and Legal Services on this staffing proposal. The Panel did not object to the creation of two additional DPCC posts but requested information on the estimated improvement in efficiency if the proposal was endorsed. We have therefore included the information in paragraphs 10 and 15 above.

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 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
April 1996

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Enclosure 1 to EC(96-97)11

Statistics on Workload of Prosecutions Division Number of Cases Handled and Number of Days on Court Appearance (In-house)

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Enclosure 2 to EC(96-97)11

Statistics on the Workload of Prosecutions Division: Number of Pieces of Advice Given

* Statistics for 1993 and 1994 not kept

# With effect from 13.2.1995, Customs and Excise cases were handled by

Commercial Crime Unit

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Enclosure 5 to EC(96-97)11

Deputy Principal Crown Counsel (CCU) (DL2)

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 (which mainly involvesing 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 6 to EC(96-97)11

Deputy Principal Crown Counsel ICAC (II) (DL2)

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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