Basic Law provides for both prosecutorial and judicial independence, as both are vital under the Rule of Law in Hong Kong.
This paper looks at issues in connection with prosecutorial independence and judicial independence of the superior courts. Indeed both are not functioning with total independency with the judiciary perceived to be more independent. As both are vital to the rule of law in Hong Kong, the prosecutorial independency and judicial independency of the superior courts shall be kept to the highest standard.
The prosecutorial function of the Department of Justice is carried out by the Prosecutions Division, whose role is:
‘to prosecute trails and appeal on behalf of the HKSAR, to provide legal advice to law enforcement agencies upon their investigations, and generally to exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR. The Division also provide advice and assistance to government bureaus and departments in relation to any criminal law aspects of proposed legislation.’
The Basic Law assures the criminal prosecutions shall be free from any interference. Section 15(1) of Criminal Procedure Ordinance (Cap. 221) provides that ‘the Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.’ Section 1.1 of the Prosecution Code states that ‘a prosecutor is required to act in the general public interest, but independently as a “minister of justice”. In making decisions and exercising discretion a prosecutor must act fairly and dispassionately on the basis of the law, the facts provable by the admissible evidence, other relevant information known to the prosecution and any applicable policy or guidelines.’ Section 1.2 of the Prosecution Code provides that a prosecutor must be influenced by any investigatory, political, individual interest or representation; the personal feelings or beliefs, etc. It is noted that public interest, a vague yet broad concept, is cited as an important criterion for prosecution.
It is the constitutional responsibility of the judge to provide fair and impartial justice in accordance with the law based on the relevant evidence presented in court. When carry the judicial function, the judge must be free from any influence and act independently.
The Basic Law provides a comprehensive guarantee of judiciary independence. Those provisions include Article 2 (independent judicial power, including final adjudication), Article 19 (jurisdiction over all cases in HKSAR), Article 81 (court system in HKSAR), Article 82 (Court of Final Appeal as the apex court of HKSAR), Article 84 (adjudicate cases according to laws applicable in HKSAR; refer to precedents of other common law jurisdictions), Article 85 (exercise judicial power independently, free from any interference;...