24 October 2016
Whether Secretary for Justice Rimsky Yuen Kwok-keung, the police and the courts exercise their powers impartially will determine the fate of Hong Kong's rule of law. Photos: HK judiciary
Whether Secretary for Justice Rimsky Yuen Kwok-keung, the police and the courts exercise their powers impartially will determine the fate of Hong Kong's rule of law. Photos: HK judiciary

Secretary for justice faces a time of tests

Police officially filed charges last week against several students who stormed the Central Government Offices in Tamar on Sept. 29 last year, a break-in that sparked the Occupy movement.

The decision was soon interpreted as politically motivated, prompting Secretary for Justice Rimsky Yuen Kwok-keung, who was on an official visit to Beijing, to issue a swift statement to reject claims of political prosecution.

Yuen denied that the charges are intended to affect the district council elections in November.

He said the inclination to label them as an attempt at political prosecution disregards the facts and is unfair to officials at the Department of Justice.

Yuen attributed the delay in the filing of charges by the authorities to the time needed for police to investigate the incident and for his department to make decisions on each case, given the number of suspected offences throughout the Occupy protests.

As regards the government’s decision to file for judicial review of a case in which four protesters who stormed the Legislative Council complex in November were sentenced to perform community service, Yuen said the case involves violence and the government is of the view that community service orders might not have a sufficient deterrent effect.

[Editor's note: The judge has since revised the sentence of three of the four protesters to three-and-a-half months in prison. A decision on the sentence of the fourth is pending.]

On the case in which seven police officers are alleged to have assaulted an Occupy protester in October, Yuen said the department is waiting for legal advice from a lawyer in Britain on whether to prosecute them, and a decision will be made soon if no further information is required from the police.

Yuen must be praised for his sensitivity and timely reply to concerns about political prosecution.

Yet I hope he can spare some time to think about whether such doubts are confined to related parties and individuals only or whether the general public shares them as well.

He also needs to ask himself whether, throughout the past year, the work of the police and his department has lived up to the public’s expectation that the government must shield our rule of law from political intervention.

The foundation of Hong Kong’s rule of law, as many acknowledge, is an independent judiciary.

It operates on its own, and neither the appointment of judges nor the judicial process should be subjected to any external meddling, especially interference from the executive arm of government.

But that is just one aspect of the concept.

The government’s law enforcement departments, the police and the Department of Justice in particular, with their far-reaching powers, must also be unbiased and carry out their work without fear or favor.

Their only criterion should be whether there is sufficient evidence to prosecute and whether a prosecution is in the public interest.

This is also the vital bedrock of Hong Kong’s rule of law.

Article 63 of the Basic Law stipulates that “The Department of Justice of the Hong Kong Special Administrative Region shall be in charge of criminal prosecutions, free from any interference.”

When it comes to safeguarding the rule of law, Jeremy Fell Mathews, Hong Kong’s last attorney general, in office from 1988 to 1997, whose position was replaced by that of the secretary for justice at the handover, took a laudable step.

Under his leadership, the Department of Justice promulgated in 1993 policy guidelines for criminal prosecutions that provided a detailed outline of the principles as well as the basis to justify the institution of proceedings.

Called the Prosecution Code, these guidelines are accessible on the department’s website and were last updated in 2013.

The document says, “the golden thread that runs through the fabric of the Prosecution Code is the importance of upholding the just rule of law by the just application of just laws”.

The decision whether or not to prosecute an individual or entity is always a crucial one.

It should only be taken after a prosecutor has fully evaluated the evidence and circumstances and answered two questions.

First, is the evidence sufficient to justify instituting or continuing proceedings?

Second, if it is, does the public interest require a prosecution to be pursued?

As regards the first question, the criterion is whether the evidence can point to a reasonable prospect of conviction.

And as far as the public interest is concerned, factors like the seriousness of an offense must be taken into account.

In 2013, an extra chapter on public order events was inserted, which quoted the Court of Final Appeal’s verdict on a related case.

The court said a criminal prosecution should only be pursued when the relevant conduct exceeds sensible proportions or the bounds of reasonableness.

There is an old adage in the legal sector: not only must justice be done, it must also be seen to be done.

By the same token, as set out in the code, “the Department of Justice must be committed to operating in an open and accountable fashion, with as much transparency as is consistent with the interests of public justice”.

Nonetheless, over the years, the public may have had deep misgivings about law enforcement by the police and the department’s prosecution decisions in regard to public order events.

During last year’s Occupy movement, for instance, almost 1,000 arrests were made, yet police did not make public until last month the number of prosecutions.

The cases of 140 people arrested have undergone legal proceedings, and among them 100 have either been convicted, entered into their own recognizances or been bound over by order of the court.

Of the remaining 40 people, 23 were acquitted, and charges against the other 17 were withdrawn.

I must point out that up to 80 percent of those arrested are still awaiting legal proceedings.

How long will they have to wait for a decision by the police and the department?

The secretary for justice is the official ultimately responsible for all prosecution decisions.

I hope he can push the police and the prosecutions division to accelerate all the investigations and prosecution work related to the Occupy movement, including two long-standing scandals of great public concern: the case of a superintendent who allegedly assaulted passersby with his baton in Mong Kok and that of the seven police officers who were seen on a televised video beating up a handcuffed protester at Tamar.

The secretary for justice must ensure that justice is dispensed with equal measure and in an even-handed manner at all times, so as to safeguard the principles of the Prosecution Code.

Should the public become skeptical of the explanations put forth by the police and the department for delays like those in these cases, that would be detrimental to their confidence in the government’s respect for the rule of law.

Notwithstanding the fact that the secretary for justice is nominated by the chief executive and appointed by the central government, he is mandated by the Basic Law to fulfill his duty independently, and neither Beijing nor the chief executive can sack him in an arbitrary manner simply because his decisions on whether to prosecute do not coincide with the wishes of others.

Thus the responsibility of defending Hong Kong’s rule of law lies on Yuen’s shoulders, and I hope that when he finishes his tenure, he can conclude that he has fulfilled his role with a clear conscience.

This article appeared in the Hong Kong Economic Journal on Aug. 26.

Translation by Frank Chen

[Chinese version 中文版]

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Former Secretary for the Civil Service of the Hong Kong Government

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