It is time for Hong Kong to set clear rules on the “role and functions” of the Secretary for Justice, Chairman of the Bar Association Philip Dykes has said in an interview with HKFP on Monday.
Dykes said that the recent controversies involving Secretary for Justice Teresa Cheng should raise wider questions about her role.
He suggested that the Department of Justice – which Cheng leads – could follow the example in England and list scenarios in which the Secretary should refrain from interfering.
“When and in what circumstances does the Secretary for Justice play a part in the decision to prosecute?” Dykes said. “It could only help if clear, easily understood protocols are set out.”
Last January, a number of illegal structures were discovered on properties that Cheng owned, but the Department of Justice dropped the case against her in December. To avoid a conflict of interest, Cheng delegated her power to the Director of Public Prosecutions (DPP) to decide whether to prosecute her.
Separately, Cheng was also under fire for the decision not to prosecute former chief executive Leung Chun-ying over the UGL scandal. Leung was accused of corruption and misconduct in public office, but the DoJ said there was insufficient evidence to take Leung to court.
The DoJ did not seek outside legal advice for Leung’s case, leading some critics – including lawyers’ groups and former top prosecutors – to push back against the move as a break from tradition.
However, Dykes said the questions should not stop at the issue of “briefing out” but also extend further to cover the Secretary for Justice.
By briefing out, Dykes refers to the established practice for the Department of Justice to seek expert assistance not available in-house.
“I think it is a good time now for people, particularly the Legislative Council, to look at the role and functions of the Secretary for Justice,” he said, describing it as “one good thing” that came out of Cheng’s predicament.
“I’m sure somebody will say, never mind about briefing out, what about you [the Secretary for Justice]? What do you do when a case like this comes your way, do you look at it or do you give it immediately to your DPP?” he added.
Dykes said the recent events called for a fresh look at Basic Law Article 63, which states that the DoJ shall “control criminal prosecutions, free from any interference.”
England’s Attorney General
Dykes said that, since 2009, England’s Attorney General – the equivalent of the Secretary for Justice – has followed a set of publicised rules that define their relationship with prosecutors.
It states that the Attorney General is “not informed of, nor has any involvement in, the conduct of the vast majority of individual cases around the country.”
Prosecutors decide whether or not to prosecute, and the Attorney General can only play a role if the case involves national security.
Hong Kong has no such protocol, Dykes said.
“It would be quite easy to formulate,” he added, noting it could take the form of an administrative guideline that would not need to be passed by the Legislative Council.
Dykes said the rules could be similar to the DoJ’s existing prosecution code, which applies to prosecutors. “It shapes prosecutorial discretion, but doesn’t limit or take away powers from the DPP or the Secretary for Justice.”
Hong Kong’s Secretary for Justice is a political appointee, and her roles and responsibilities are partly set out in the Basic Law, the Criminal Procedure Ordinance and the prosecution code.
Cheng will appear before lawmakers on January 28 and is expected to explain her department’s prosecution policy.
The Department of Justice did not respond to HKFP’s request for comment.