Panel on Administration of Justice and Legal Services ( Minutes ) 17 Nov 98

Legislative Council

LC Paper No. CB(2)862/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/PL/AJLS

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of Meeting
held on Tuesday, 17 November 1998 at 4:30 pm
in Conference Room A of the Legislative Council Building

Members Present:

Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP

Public Officers Attending :

Item IV
Mr Stephen LAM, JP: Director of Administration & Development
Mr Arthur LUK: Deputy Director of Public Prosecutions
Mr Peter CHEUNG, JP: Deputy Director (Administration)
Mr Derek PANG: Senior Assistant Director of Public Prosecutions
Item V
Mr Grenville CROSS, SC: Director of Public Prosecutions
Ms Denise CHAN: Assistant to Director of Public Prosecutions
Item VI
Mr Stephen WONG: Solicitor General (Ag)
Mr Richard TURNBULL: Senior Assistant Director of Public Prosecutions
Ms Sherman CHAN: Senior Assistant Law Draftsman
Mr Llewellyn MUI: Senior Government Counsel, Legal Policy Division

Attendance by Invitation :

The Law Society of Hong Kong: Mr Andrew LAM; Mr Stephen HUNG; Ms Christine CHU

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA: Legal Adviser
Mr Paul WOO: Senior Assistant Secretary (2) 3

I. Confirmation of minutes of meeting on 20 October 1998
(LC Paper No. CB(2)632/98-99)

The minutes of meeting on 20 October 1998 were confirmed.

II. Papers issued since the last meeting

2. Members noted that no paper had been issued since the last meeting.

III. Items for discussion at the next meeting
(LC Paper No. CB(2)633/98-99(01))

3. Members agreed that the next regular meeting to be held on 15 December 1998 would discuss the following items -

Arbitration between the People's Republic of China and the Special Administrative Region of Hong Kong (HKSAR);
Financial limits for jurisdiction of the District Court and Small Claims Tribunal;
Arrangements for service of judicial documents between HKSAR and the Mainland; and
Legal Aid Policy Review.
(Post-meeting note: Item (b) has subsequenty been deferred to another meeting)

IV. Creation of a new rank of Chief Court Prosecutor in the Department of Justice
(LC Paper No. CB(2)633/98-99(02))

4. At the invitation of the Chairman, the Director of Administration & Development ("D of AD") briefed members on the draft Establishment Subcommittee paper (LC Paper No. CB(2)633/98-99(02)) which set out the background of and justifications for the proposal to create a new rank of Chief Court Prosecutor ("CCP") with a pay scale of MPS 40-44.

5. D of AD informed the meeting that since the Court Prosecutor ("CP") grade was first created in 1976, the number of CPs had increased over the years to the current strength of 123. CPs were deployed in the Prosecutions Division of the Department of Justice ("D of J") to undertake prosecution of criminal cases in magistracies, the number of such cases amounted to more than 270 000 a year at present level. With the growing workload in the past years, it was considered that there was a functional need for a new rank of CCP to provide the necessary legal and administrative support to the Senior Assistant Director of Public Prosecutions (Police Advice (Magistrates' Court) & Court Prosecutors) ("SADPP") in the management of the CP grade, thus permitting the SADPP to devote more time to handle matters which required his level of professional knowledge and expertise.

6. In reply to members' enquiries, SADPP said that it roughly took up one-tenth to one-fifth of his time overseeing CP grade management matters. The proposed CCP would relieve him of the more routine management responsibilities and enable him to focus more on the "mainstream" legal duties such as court appearances, determination of legal proceedings, provision of legal advice to the Administration and supervision of Government Counsel grade officers to ensure the quality of prosecution work carried out by the Prosecutions Division of the D of J.

7. Referring to paragraph 9(c) of the paper, Ms Emily LAU asked whether the role of the proposed CCP in deployment of CPs in various magistracies would eventually achieve cost savings as a result of better use of manpower resources and the reduced need to brief out prosecution work to private counsel at higher costs. The Administration replied that redeployment of CPs in various magistracies was not primarily aimed at money savings, nor at reducing the number of briefing-out cases per se. Instead, it was to cope with workload fluctuations in the magistracies which all along occurred and to ensure that cases of varying degrees of complexity could be handled satisfactorily. As Senior Court Prosecutors I ("SCP I") also carried out prosecution duties in magistracies, a CP grade manager at a rank senior to SCP I was considered necessary to assist the SADPP to discharge supervisory functions in this area.

8. The Administration supplemented that briefing out of prosecution work was conducted on a need basis and in accordance with established practices. The amount involved each year was in excess of $100 million. Depending on whether redeployment of CPs in magistracies could be made in the most efficient and effective manner, and consequentially reduce the need for briefing out, it might be possible for the Administration to achieve some savings.

9. The Chairman noted from the paper that there was an upward revision in the manning scale of the CP grade in 1995 to address the problem of high staff wastage rate which resulted in the briefing out of a substantial amount of prosecution work. She enquired if the creation of additional senior posts in the CP grade was a direct consequence of the significant increase in the number of CPs over the past few years.

10. In response, the Administration said that the expansion of the CP grade was kept under constant review. The creation of the new CCP rank was to improve overall supervision and management of the CP grade, having regard to the size of the grade establishment and the need to ensure the proper conduct of prosecution duties. The Administration further advised that a recommendation to create a new CCP rank had in fact been made in a major restructuring exercise of the grade in 1995. However, the proposed creation of post was subsequently held in abeyance pending further review. The Administration felt that it was appropriate to implement the proposal at this point in time. The Administration added that the proposed new CCP rank would be filled by internal promotion.

11. In further response to members' enquiries, the Administration said that recruitment of CPs took place at the lowest rank of the CP grade. The minimum entry requirement was set at matriculation level. Other comparable grades with the same entry qualifications included the grades of Controller of Posts and Judicial Clerk. D of AD supplemented that despite the minimum entry requirement at Form 7 level, out of the 123 officers in the CP grade, about 70 (i.e. 58%) were degree-holders, with 23 of them holding a degree in law. Another 20% had acquired professional legal knowledge. He considered that the new rank of CCP would help retain capable staff to continue to serve in the grade.

12. Mr James TO expressed support to the proposed creation of a new CCP rank. He remarked that under the current situation of economic downturn, it might be possible to recruit CPs with higher academic or professional qualifications than the specified entry requirements. D of AD said that the paramount consideration in any recruitment exercise was to get the best people for the job. The Administration was always adopting a cautious approach in reviewing entry qualifications for particular grades to ensure that the quality of service would not be compromised, and that any changes would not have adverse implications on other grades with similar appointment criteria.

13. The Chairman concluded that the Panel was generally in support of the proposed creation of a new rank of CCP rank in the CP grade. She suggested that to strengthen justifications for the proposal, the Administration might consider providing additional information on savings, if any, which would be achieved by the creation of such new rank in the final version of the Establishment Subcommittee paper for the consideration of the Establishment Subcommittee and the Finance Committee.

Adm

V. Prosecution policy
(LC Papers No. CB(2)563/98-99(01); 616/98-99; 616/98-99(01); 616/98-99(02); 602/98-99(01); and 656/98-99(01))

14. At the invitation of the Chairman, the Director of Public Prosecutions ("DPP") addressed the Panel on the following three aspects in relation to prosecution -

general prosecution policy (principles and factors to be taken into account in the decision to prosecute);
private prosecutions (private prosecution procedure and intervention in a private prosecution); and
the case of Mr CHEUNG Hung-ngai (the case of private prosecution referred to by Mr James TO at the meeting on 9 October 1998 in which the proceedings brought by Mr CHEUNG were taken over the the Secretary for Justice (SJ) in August 1998 and subsequently discontinued without trial in September 1998).

(A copy of the DPP's speaking note was tabled at the meeting and circulated after the meeting vide LC Paper No. CB(2)671/98-99(01)).

Private prosecutions

15. Mr James TO enquired of the distinction between the role played by SJ and the courts respectively to ensure that unworthy cases of private prosecution would not be proceeded with. Referring to Mr CHEUNG Hung-ngai's case, he queried why it was necessary for SJ to intervene and assume the conduct of the proceedings, instead of leaving it for the court to decide.

16. In response, DPP said that the right to bring a private prosecution was open to abuse of legal procedure and intrusion of improper personal or other motives. Section 14 of the Magistrates Ordinance, whilst acknowledging the right to bring a private prosecution, expressly recognized that SJ "may at any stage of the proceedings before the Magistrate intervene and assume the conduct of the proceedings". Article 63 of the Basic Law also provided that the D of J should control criminal prosecutions, free from interference. DPP remarked that the power of SJ to take over proceedings was sparingly used and it was only in the most exceptional circumstances that intervention by SJ would ever take place. He added that if a charge was laid before the court and a party pleaded not guilty to the charge, the court was normally required to allow the case to proceed and it would be the duty of the court to hear the evidence until the end of the prosecution case when it could decide if there was a case to answer. However, in Mr CHEUNG's case, the results of police investigations, Government Counsel's advice and independent legal advice by private counsel all showed that there was no evidence to establish a prima facie case of any criminal offence against any of the ten persons accused. It was found that the private prosecution brought by Mr CHEUNG was wholly devoid of merit. It had no prospect of success and it constituted an abuse of the prosecution process. DPP said that in light of these conclusions, SJ exercised her powers of intervention in the interests of the public and fairness to the accused persons to stop the prosecution. The rights of accused persons required due protection.

17. Mr James TO was concerned that in some cases of private prosecution, the person who initiated prosecution against certain public officers might be unwilling to provide evidence to facilitate SJ's consideration as to whether she would exercise powers of intervention. DPP said that as far as Mr CHEUNG's case was concerned, Mr CHEUNG did co-operate with the D of J and duly supplied a summary of his case and a list of witnesses. Thorough police investigations then followed. He said that had Mr CHEUNG's case been properly brought on good grounds, the D of J would have continued the prosecution. He explained that interventions by SJ would not necessarily lead to termination of the proceedings. In response to Mr James TO's further question, DPP said that it was difficult to tell what the D of J would do in the hypothetical situation of Mr CHEUNG refusing to supply evidence to the Department. He opined that it would only be reasonable in such a scenario to approach the matter with a great deal of scepticism.

18. Referring to the prosecution policy adopted in Australia as mentioned in DPP's speaking note, Mr James TO enquired how one could assess whether or not an "improper personal motive" existed and how that conclusion affected SJ's decision to intervene in a private prosecution. DPP advised that every possible and reasonable step had been taken to establish the merits of the case, including comprehensive investigations and a thorough examination of all the evidence available. He stressed that in coming to a decision as to whether or not to intervene and to continue or end the proceedings, it was essential to consider not only the interests of the private prosecutor but also the interests of those who might be wrongly put on trial. The accused also had rights, and ought not to be exposed to the trauma and expense of criminal proceedings save for good cause. He said that in Mr CHEUNG's case, the decision to terminate the prosecution was taken on the basis of the evidence of the case. The motive of Mr CHEUNG was irrelevant.

19. Mr James TO pointed out that in the instant case, Mr CHEUNG was originally convicted of false accounting. He asked whether forensic examination had been conducted on the questioned invoice which was the subject of the charge against Mr CHEUNG. DPP replied that he could not recollect that such an examination had been done and would confirm this in writing after the meeting.

20. Mrs Miriam LAU noted that there were a total of 20 private prosecutions from 1996 to September 1998. She asked whether the Administration had investigated into each and every case to ascertain whether the cases had been brought on bona fide grounds. DPP advised that the Administration generally would not investigate into private prosecutions unless a party raised the issue of wrongful prosecution and specifically asked for SJ's intervention. In the absence of a justifiable cause for intervention, private prosecutions simply took their normal course. DPP said that in Mr CHEUNG's case, one of the defendants involved submitted that he had been improperly prosecuted and requested SJ to intervene. DPP further advised that Mr CHEUNG's case was the second private prosecution case terminated by the Government since 1995, following one directed against some officers in the Independent Commission Against Corruption which was stopped by the then Attorney General.

21. Ms Emily LAU enquired how many requests, if any, had been made for SJ's intervention in relation to the 20 private prosecutions which took place since 1996. DPP agreed to provide a reply after the meeting.

22. Mr James TO expressed the opinion that for justice to be seen to be done, people should not be deprived of the opportunity to pursue private prosecution on their own lightly, particularly in cases where they had lost confidence in the Government instituting the prosecution. He quoted a case where a legal aid receipient initiating prosecution against the Legal Aid Department was requested by the Department to seek independent legal opinion from a private counsel. He said that such practice adopted by the Department was worthy to note.

23. Referring to a quote from the communique issued after the Commonwealth Law Ministers Conference in Canada in August 1977, DPP concluded that on the function of law enforcement, the principles endorsed both outside and within the Commonwealth were that the discretion should always be exercised in accordance with wide considerations of the public interest, and that it should be free from any direction or control whatsoever. At the end of the day, the maintenance of these principles depended ultimately upon the integrity of both holders of public office as well as the legal profession.

Judicial review

24. Mr Albert HO noted from the DPP's speech made at the Seminar on Constitutional Law Developments organised by the Hong Kong Bar Association and the Centre for Comparative and Public Law of the University of Hong Kong on 9 May 1998 (LC Paper No. CB(2)616/98-99(02)) that the decision of the prosecuting authority not to prosecute had been held to be susceptible to judicial review under limited circumstances and subject to certain conditions being satisfied. He opined that SJ's decision not to prosecute in Mr CHEUNG's case might therefore be reviewable.

25. Mr HO further enquired whether it was a modern development of law that the prosecuting authority's decision to prosecute would also be susceptible to judicial review. DPP pointed out that in the case of Keung Siu-wah v AG [1990] 2 HKLR 238 quoted in his speech on 9 May 1998, it was held to be a constitutional imperative that the Court of Appeal would not interfere with the AG's decision to prosecute on a judicial review application. However, the Court indicated that the trial court retained an inherent discretion to prevent an abuse of its process by staying prosecution. In the light of a more recent case of R v IRC, ex parte Allen [1997] STC 1141, it was held that a decision to prosecute was indeed amenable to judicial review in certain circumstances. It was now at least arguable that prosecutors could be held to account also for improper decisions to prosecute. He added that this was still a developing and unsettled area in the criminal field.

26. Mr Albert HO said that if the prosecuting authority could always refrain from disclosing certain information, or explaining its reasons not to prosecute in certain cases, it would be difficult for a party to make an informed decision as to whether or not to seek a judicial review of the case. He considered that there should be specific guiding principles relating to disclosure of information by the prosecution in cases where it decided not to prosecute.

27. DPP responded that according to the current state of the law, the power of SJ to intervene in a private prosecution was not subject to review by the courts. The decision of the prosecuting authority not to prosecute was reviewable if it could be shown that -

the decision was the result of an unlawful prosecution policy;
the decision ignored established policy; or
the decision was perverse.

28. Mr Albert HO enquired whether it was possible, in cases where no particular victims could be identified such as cases involving corruption, for someone to apply for judicial review if the Government had decided not to prosecute. DPP said that he could not envisage such a situation happening. He considered that a decision to seek judicial review necessarily involved a private interest.

29. Mr Martin LEE asked whether there was any definitive statement on the established prosecution policy of the D of J. DPP replied that a number of factors which were relevant to the Government's decision to prosecute were set out in the booklet on Prosecution Policy issued by the Department, in his opening statement, and in the various public statements and speeches delivered by him on different occasions. He said that it would be difficult to give an exhaustive account to cover each and every consideration that could possibly arise.

30. Mr Martin LEE questioned whether SJ would maintain that her decision was not amenable to judicial review if a judicial review application was made against her on the ground that her prosecution decision was a departure from the established policy. DPP said that he could not answer an hypothetical question such as this. He pointed out that the cases cited in the booklet on Prosecution Policy and in his various speeches were English cases and one could not say with certainty that they would all be adopted and followed locally.

Consultation with SJ

31. Noting that DPP had indicated in his speech on 9 May 1998 that he "consults the SJ in a small number of difficult, sensitive and complex cases", Ms Emily LAU asked how many times had DPP consulted SJ personally on such matters, what was the nature of such cases and whether DPP had differed in opinion from SJ on certain occasions.

32. DPP responded that SJ and he met weekly on a regular basis to discuss matters of interest. He claimed confidentiality on the matters raised in such meetings and the content of such discussion. He added that as he did not keep a record of such meetings, he could not provide the number of cases which he had discussed with SJ. He said that in the absence of records it would be misleading to give statistics, and some issues and cases might have been raised repeatedly.

33. In response to the Chairman, the Legal Adviser said that as DPP was invited to attend the Panel meeting as a representative of the Administration and not as a witness summoned to give evidence in an inquiry under the Legislative Council (Powers and Privileges) Ordinance, it was up to DPP to decide whether he should divulge what he regarded as privileged information.

34. Mr Martin LEE enquired whether "sensitive cases" referred to cases involving the Central Government or organs of Central Government such as the Xinhua News Agency. He asked whether there was any policy, directive or understanding in the D of J that decisions on treatment of cases involving bodies of that kind must be taken at a certain level within the Department. DPP replied that there was no such understanding although he would exercise his judgment as to whether cases of that sort should be brought to SJ's attention.

VI. Theft (Amendment) Bill 1998
(LC Paper Nos. CB(2)633/98-99(03); 656/98-99(01) and Report on Creation of a Substantive Offence of Fraud published in July 1996 by the Law Reform Commission)

35. At the invitation of the Chairman, Solicitor General (Ag) ("SG (Ag)") briefed members on the above-mentioned Bill, which was scheduled for introduction into the Legislative Council ("LegCo") on 2 December 1998. The Bill sought to create a new substantive offence of fraud and to provide for the retention of the common law offence of conspiracy to defraud.

36. SG (Ag) advised that the proposed Bill represented an improved version of the Fraud Bill which had been presented to the then Legislative Council in early 1997. The new offence of fraud proposed by the present Bill reflected the Law Reform Commission's ("LRC") recommendation in its original consultation paper issued in June 1995, but differed from the LRC's final recommendation in its July 1996 Report in that the new offence was not restricted to financial or proprietary loss or gain. In addition, contrary to the LRC's final view, the common law offence of conspiracy to defraud was retained. The main reasons for the proposals in the Bill were as follows -

Whereas prosecution of conspiracy to defraud could only be brought where two or more persons were involved in fraudulent conduct, the proposed new offence of fraud would cover similar conduct committed by one person acting alone;
By removing the restriction to financial or proprietary loss or gain, the new offence of fraud would protect not only the individual's proprietary interests, but also the public interest in the integrity of the administration of public affairs; and
To retain the existing common law offence of conspiracy to defraud would address the concern that the new statutory offence would not catch conduct which did not involve an element of deceit (currently covered by the existing offence of conspiracy to defraud). Furthermore, the retention of the common law offence would enable Hong Kong to continue to observe and honour obligations under most of Hong Kong's agreements with other jurisdictions on the surrender of fugitive offenders which listed the offence of conspiracy to defraud as an extradictable offence.

37. In response to the Chairman's invitation, Mr Andrew LAM elaborated on the Hong Kong Law Society's views on the Bill (set out in LC Paper No. CB(2)656/98-99(01)). He said that the Law Society's support to the proposed creation of a substantive offence of fraud was a qualified one. Its main concerns were -

As the proposed new offence of fraud was not restricted to cases involving financial or proprietary loss or gain in the criminal arena, nor had the element of "dishonesty" been built into the definition of fraud, the new offence could be interpreted to apply to civil activities and cover any untrue statements. Thus the new offence might catch conduct not thought appropriate for such a sanction. The Law Society suggested that the meaning of "deceit" and "benefit/prejudice" should be more clearly defined so as to narrow the scope of the offence, rather than leaving them to the interpretation of the law enforcement bodies, to prevent unjust application of the law; and
The common law offence of conspiracy to defraud was fraught with confusion. To create a new offence of fraud while retaining the common law offence would frustrate the original intention of creating the new offence to provide certainty in the law. The Law Society submitted that the common law offence of conspiracy to defraud should be repealed as suggested by the LRC.

38. After some preliminary discussion, the Panel requested the Administration to respond to the following issues to facilitate further study of the Bill -

Chapter 4 of the LRC's Report set out the law of fraud in other jurisdictions, including those which already possessed a substantive offence of fraud and those where consideration had been given to its introduction. As the Report was published in July 1996, the Administration was requested to update the position, i.e. whether the law of fraud had been codified in some jurisdictions in the latter category since publication of the LRC's Report, and if so, provide the relevant details;
In respect of those jurisdictions which had codified the law of fraud and done away with the common law offence of conspiracy to defraud, whether they faced the same difficulties as envisaged by the Administration, for example, difficulties to comply with agreements on extradition arrangements as pinpointed in paragraph 6 in LC Paper No. CB(2)633/98-99(03). If so, how did those jurisdictions tackle the problems; and
It was noted that the offence proposed by the Bill differed from the LRC's final recommendations. The Administration was requested to provide a comparison between the provisions of the Bill and the recommendations of the LRC, highlighting major differences and providing justifications for such differences.

39. The Chairman advised that as a Bills Committee was likely to be formed to scrutinize the Bill after its introduction, the Panel would forward the information as requested in para 38 above as well as the relevant submissions on the Bill from the legal profession for consideration of the Bills Committee.

VII. Any other business

Judicial jurisdiction of HKSAR

40. In response to the Chairman, Mr James TO advised that the subject of arrangements with the Mainland on surrender of fugitive offenders would be discussed by the Panel on Security on 3 December 1998. Members of this Panel and all other Members of the LegCo would be invited for the discussion. The subject of HKSAR's judicial jurisdiction could be discussed at a separate meeting to be held jointly with this Panel.

Re-scheduling of meetings

41. The Chairman advised that the meeting dates for the regular meeting in February 1999 and March 1999 would be changed as the original dates clashed with the Lunar New Year holiday and the Special Finance Committee meeting respectively.

42. There being no other business, the meeting ended at 6:45 pm.

Legislative Council Secretariat
14 December 1998

Legislative Council

Legislative Council Panel on Administration of Justice and Legal Services Minutes of Meeting held on Tuesday, 17 November 1998 at 4:30 pm in Conference Room A of the Legislative Council Building

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of Meeting
held on Tuesday, 17 November 1998 at 4:30 pm
in Conference Room A of the Legislative Council Building