Today……the loser is Hong Kong

By Ronald Arculli, 10 March 1999
Speech on ‘Vote of Non-confidence in the Secretary of Justice’
Legislaitve Council Meeting

p.454-457, Legco Record

MR RONALD ARCULLI: Madam President, historically and generally, Attorney Generals or Secretaries for Justice do not explain or give reasons why prosecutions are not commenced. The reason is plain. Those who are appointed to this high office are entrusted with the power to prosecute or not to prosecute any person with a criminal offence. Indeed, some of our laws prohibit some criminal prosecutions unless the Secretary consents.

This is the high regard and trust accorded to holders of such office. Indeed, until this unfortunate incident, the Liberal Party had no reason, no reason to think otherwise of the Secretary for Justice. But why then are we so disturbed by her decision in the Sally AW case? I will try to explain.

The Secretary has told us that there were two reasons why Ms AW was not prosecuted. First, she concluded that there was no reasonable prospect of securing a conviction. Second, she said that from the public interest point of view, she considered it not right to prosecute Ms AW but that she could not do so likewise with the other three suspects who were members of the management of the Sing Tao Group.

The Secretary’s decision has caused widespread concern, and it is unacceptable and untenable. The community cannot understand why public interest was one of the two reasons relied on by the Secretary for not prosecuting Ms AW. There was widespread concern that there was one law for the rich and another for the poor. It was particularly unfair to the business community that her decision caused such widespread concern. It is unacceptable that any holder of this high office can cause such widespread concern, both in Hong Kong and internationally, by an untenable decision.

Madam President, I shall now refer to the booklet issued by the Department of Justice entitled Prosecution Policy Guidance for Government Counsel. Paragraph 13 effectively says that the first question to consider is the sufficiency of evidence. The proper test is whether there is reasonable prospect of a conviction. Next is paragraph 16, and I quote, “…… having satisfied himself that the evidence itself can justify proceedings in the sense that there is a reasonable prospect of obtaining a conviction…… Government Counsel must then (I emphasize the word “then”) consider whether the public interest requires a prosecution.”

Madam President, the position is crystal clear. If there is insufficient evidence, that must be the end of the matter. Government Counsel will not, and indeed cannot, consider public interest. Why then did the Secretary not follow the guidelines set out in paragraphs 13 and 16?

The Secretary tells us that the prosecution policy booklet does not prohibit consideration of public interest even if there is insufficient evidence. I do not accept that, but even if that were so, why consider something wholly and totally irrelevant? Furthermore, none of the factors considered by the Secretary and on which she relied to bring in public interest are amongst the eight situations set out under paragraph 17.

Madam President, the matter does not end there. In a letter to me dated 3 March 1999, Director of Public Prosecutions, Mr Grenville CROSS, continues his gallant defence of a wholly untenable position. He boldly asserts, and I quote, “The Secretary for Justice’s consideration of public interest factors was entirely consistent with established prosecution policy.” Nowhere does he refer to paragraphs 13 or 16 that I have referred to.

Even more astonishing is his letters to the 13 countries enquiring about public interest considerations. Astonishing because the Director makes no reference to the insufficient evidence as a starting point. What seems to escape him, and indeed the Secretary, is that both of them simply refuse to accept that they have ignored their own prosecution policy. On the contrary, they are attempting to justify the Secretary’s decision by asserting that her decision is consistent with prosecution policy.

On 4 February 1999, the Secretary gave reasons why she departed from the long-established policy of Attorney Generals not explaining why prosecutions are brought or not brought. She told us quite rightly that this policy is not designed to suit the Secretary, that it exists to safeguard the integrity of the criminal system and to protect the legitimate interests of those caught up in the system. Despite the Secretary’s emphatic statement that she is not setting a precedent, we have serious concerns as to how an absence of explanation by the Secretary in a similar case in future will not cast a long shadow over the criminal justice system.

Madam President, today, there will be no winners, and I mean this because this is not about politics. This is about the rule of law that we have nurtured and cherished in Hong Kong for a long time. This is not just about a grave error of judgment on a decision not to prosecute.

This is also about the Secretary placing herself in a position so that she felt compelled and indeed justified to depart from established policy. This is about the Secretary causing widespread concern, about whether all of us are equal before the law. This is about the Secretary not following the prosecution guidelines in arriving at her decision not to prosecute. This is about the Secretary telling us today that she also considered public interest when in fact she told us on 4 February that she relied on it as a reason for non prosecution. This is about the Secretary repeatedly claiming public interest factors were academic. This is about the Secretary maintaining that she has done no wrong.

Madam President, because of my respect for the Liberal Party and the Basic Law, I am afraid I cannot continue with this debate, and I shall withdraw from this Chamber. Today, whatever the result of this motion, there are no winners. The loser is Hong Kong.

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