17 July 2019
One of the most basic legal principles is that 'justice must not only be done but be seen to be done'. Photo: Bloomberg
One of the most basic legal principles is that 'justice must not only be done but be seen to be done'. Photo: Bloomberg

Conflict ad nauseam

A “conflict of interest” arrests the flow of blood in the circulatory system of the common law.

Most people are aware of the principle that no one should be prosecutor, judge and jury in a case; the separation of the respective roles is designed to ensure fairness.

Operation of the rule against a conflict of interest is evident in countless situations; a judge who has shares in a company cannot preside over a claim in which that company is a party; a relative of a candidate for a job cannot sit on a selection board for that position.

A just society demands that anyone having a vested interest in the outcome of an issue be barred from being able to influence the result.

Quite apart from it being obvious common sense, every lawyer knows that it is a fundamental principle of natural justice.

Which being so, how can it be that Hong Kong’s Department of Justice (DoJ) chooses to ignore it?

I remember vividly when, in 1956, I first read George Orwell’s 1984, the Ministry of Justice represented the worst dystopian facets of an authoritarian regime.

Even then, it struck me that establishing a ministry of justice was risible evidence of the abandonment of the concept of justice. The title “Minister of Justice” or “Secretary for Justice” is a gross misnomer. The office bearer is the government’s chief legal advisor.

Justice is the preserve of an independent judiciary if justice is to be preserved. It is not, nor can it be, a branch of, and by that token, an arm of government.

Why does this trouble me?

The Police Force is, necessarily and unarguably, an important arm of government. In order to perform its various duties, the Police are given very wide powers to exercise authority over private citizens.

In Hong Kong the DoJ advises and represents the Police on all legal matters: the Prosecutions Division in relation to all prosecutions and the Civil Division in civil actions involving the Police.

Under the provisions of the Coroners Ordinance, the investigation into the cause of death and the circumstances surrounding it is undertaken by the Coroner. To this end, the Coroner can direct the Police to interview witnesses, search premises and take such steps as the Coroner considers necessary to investigate a death. The Police have a statutory duty to assist the Coroner under the Police Force Ordinance.

The inquest is, as the name implies, an inquiry and the role of the Coroner is similar to that of the Investigating Magistrate/Judge in the European legal system or the Procurator Fiscal in the Scottish system. He is, in effect, the chief investigator, a sort of super detective.

This is not a role that comes naturally to anyone brought up in the adversarial tradition of the common law. In such circumstances, it is only natural for the Coroner to leave to the police the rigors of investigation or, perhaps the absence of rigorous investigation.

Now consider the fact that the Coroner acts through “The Coroner’s Officer” whom he directs for the investigation. However, the Coroner’s Officer is usually a senior police inspector attached to the Coroner’s Court.

But what happens if a member of the public dies in police custody or as a consequence of acts or omissions of the Police?

Section 15 of the Coroners Ordinance provides that where someone is killed when in police custody or by an officer in the discharge of his duty, the Coroner “may request the Commissioner of Police to take such measures as are necessary to ensure that the investigation into the death is conducted independently and impartially”.

Immediately, a conflict of interest arises.

In the UK this is avoided, at least in part, by having the investigation carried out by police officers from a different County Constabulary. In fact, there is keen competition between the County Police Forces which lends the investigation substantial impartiality.

But in Hong Kong there is only one Police Force. Where is the independence and impartiality?

Loyalty to one’s brother officers is wholly admirable and laudable in terms of the Force’s duties. But in the context of an investigation into possible wrongdoing by its own, at best loyalty has a tendency to justify and at worst to turn a blind eye and “cover up”.

The Coroner’s investigation is conducted by the Police and the Coroner’s Officer, through whom the Court directs the investigation, is also a Police Officer.

Thus, investigation by the Police into a death potentially attributable to police misconduct is, self-evidently a conflict of interests.

But the conflicts do not end there.

Where the possible criminality of a death potentially attributable to Police acts or omissions has to be considered, that determination will be undertaken by the DoJ, who advise the Police investigation.

In the event that a Coroner’s Officer is seconded from the DoJ, now we have the same government office that represents and advises the Police as to its criminal and civil liability also acting as the Coroner’s right-hand man for the purposes of the investigation.

A more incestuous relationship is difficult to conceive of.

Of course, the DoJ will contend that they have erected “Chinese Walls” around the various people involved in the case but the reality is that they all share a vested interest, namely to protect the interests of the Police as well as that of the DoJ.

One of the most basic legal principles is that “justice must not only be done but be seen to be done”.

In these circumstances, however, the conflicts of interest involving both the Police and the DoJ pile up, one on top of the other, until any prospect of even an appearance of impartiality is buried beyond sight.

So that even where one assumes, as one must, complete integrity on the part of all the DoJ officers and the investigating police officers, there is no comfort in transparency, just the perception of impenetrable partiality.

In this seriously flawed configuration of conflicts of interest ad nauseam, the corpus of justice is battered beyond recognition.

It was not always thus. When the then deputy director of public prosecutions, Warwick Reid, was arrested on suspicion of accepting bribes to influence the outcome of criminal cases, the Attorney General’s Chambers ‒ the predecessor of the DoJ ‒ instructed this author as Counsel together with solicitors in the private sector to advise and conduct the prosecution.

Those were the days.

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Queen's Counsel

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