16 July 2019
Justice Secretary Rimsky Yuen has not publicly denied his role in the trespassing case of the three student activists. Photo: HKEJ
Justice Secretary Rimsky Yuen has not publicly denied his role in the trespassing case of the three student activists. Photo: HKEJ

Why Justice Secretary must delegate the powers of prosecution

A recent news report published by Reuters has shed new light on the decision of the Department of Justice (DOJ) to appeal against the sentence of the three student leaders over their trespassing offenses.

According to the report, it was Secretary for Justice Rimsky Yuen who insisted on taking the case to the Court of Appeal despite the fact that the prosecutions division of the DOJ had advised him against doing so. So far, Secretary Yuen hasn’t publicly denied the reports about his role in the case.

The startling revelations about Yuen’s role in this high-profile lawsuit have once again called into question whether the Secretary for Justice, a politically appointed official, should continue to hold the powers of criminal prosecution.

The fact that Yuen is simultaneously playing both chief prosecutor and the person in charge of drafting laws concerning highly controversial issues that could spark social unrest or even violent protests such as political reform and the “co-location arrangements” apparently constitutes a serious role conflict.

Before 1997, the office of the Secretary for Justice had been a politically neutral position so as to ensure its impartiality. However, the introduction of the accountability system by former Chief Executive Tung Chee-hwa in 2002 changed all that.

In fact, back then the Hong Kong Bar Association had expressed strong reservations about the Justice Secretary, now a politically appointed official, hanging on to the powers of criminal prosecution and suggested that the powers of prosecution be delegated to the Director of Public Prosecutions.

Many common law jurisdictions such as the UK and Canada have launched initiatives to separate the powers of prosecution from their politically appointed cabinets in order to ensure the impartiality of their prosecutors.

For example, in the UK, the Attorney General is no longer a cabinet member, while in Canada, the Federal Attorney General has handed over such powers to the newly established and independent Public Prosecution Service of Canada.

At the recent consultation session with Chief Executive Carrie Lam on her upcoming Policy Address, I urged her to follow the advice of the Bar Association. Now the ball is in her court.

This article appeared in the Hong Kong Economic Journal on Sept. 5.

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party

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