26 February 2020
The prosecutor's job is to present to the court in a fair manner all the credible evidence for an alleged crime; it is not to secure a conviction at all costs. Photo: HKEJ
The prosecutor's job is to present to the court in a fair manner all the credible evidence for an alleged crime; it is not to secure a conviction at all costs. Photo: HKEJ

Why prosecutors should not be worried about acquittal rates

Shock, horror! Hong Kong’s legal system is leaking acquittals like water out of a colander.

An ex-director of public prosecutions (DPP) recently threw up his hands in horror at what he called the “parlous state of public prosecutions” leading to “mass acquittals” in the magistrates’ courts.

The after-trial conviction rates he quoted were: 52 percent in 2015, 50.3 percent in 2014 and 47 percent in 2013.

In his opinion, what he describes as this “systemic failure” is the consequence of a failure to maintain a full establishment of government-employed paralegal court prosecutors and an overreliance on private lawyers.

But the statistics he relies on for his criticism do not provide a comparison of the percentage of acquittals as between government paralegals and fully qualified lawyers in the private sector; hence the premise for his conclusion is fundamentally flawed.

Without a fully comprehensive analysis of every acquittal in the cohort of cases upon which the data is based, what meaningful conclusion can be properly drawn?

Certainly not the oversimplistic comparison of convictions versus acquittals.

Under the common law principle of “innocent until proven guilty”, it is a grave error to assume that, simply by being charged, one is guilty.

All law enforcement agencies have a vested interest in securing a conviction; hence the necessity to divorce the investigation function from the process of trial.

This intermediary oversight is the function of the DPP.

In an ideal situation, the DPP is appointed from the private sector and reaches decisions impartially whether or not to prosecute, based on such criteria as the strength of the evidence and the interests of the public.

The current Hong Kong DPP is just such a person.

Is criticism of the private sector justified?

Every reputable lawyer versed in criminal law knows that “the prosecutor is a minister of justice”; he is not there to secure a conviction at all costs.

A passion to convict is not a quality consistent with the role of prosecutor any more than it would be in a judge or magistrate.

From my experience as a recorder [part-time judge] in the Crown Court of England and Wales, I can state that a significant percentage of acquittals were attributable to the inadequacies of the Crown Prosecution Service in the preparation of cases.

As any experienced soldier will tell you, the key to success is preparation, preparation, preparation.

If a case is ill-prepared, don’t blame the lawyer tasked to prosecute it.

The thrust of the criticism of insufficient convictions appears to be that the failure to secure a higher rate is down to the “often inexperienced” private lawyers or “novices” who are fed with taxpayer money to “cut their teeth on” prosecutions in the magistrates’ courts.

No evidence is provided to support this contention.

The gratuitously snide comment that employment of the private sector “may gratify the legal profession” is regrettable.

One must not forget that the Department of Justice has a long history of briefing the private Bar whenever a case looked more complex than usual.

Such cases have a higher probability of an acquittal.

Barristers and solicitors are bound by strict professional ethics, and without in any way detracting from the abilities of the paralegals, they do not have to answer to the ethical standards imposed on the professionally qualified lawyer.

Just how heavy a responsibility a prosecutor bears can be measured from a statement by an eminent Canadian Supreme Court judge:

“It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

“Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly.

“The role of prosecutor excludes any notion of winning or losing….”

Data can so easily fall prey to misuse, or as Mark Twain reminded us, there are lies, damned lies and statistics.

As Fagin sings in Oliver, “I think I’d better think it out again!”

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Queen's Counsel