In 2013, the Department of Justice issued its Prosecution Code. It is described as “a set of instructions to guide prosecutors in conducting prosecutions”, and the department’s prosecutors have recourse to it almost daily. In its introductory paragraph, it asserts that the “golden thread that runs through the fabric of the Prosecution Code is the importance of upholding the just rule of law by the just application of just laws”.
The Prosecution Code also outlines what the community expects of its prosecutors. Their responsibilities are manifold, and they include acting independently, ensuring that suspects are treated fairly, and upholding the public interest. Perhaps most importantly, prosecutors are required “to comply with and promote the rule of law.”
Some years previously, in 2001, the Department of Justice’s Prosecutions Division joined the International Association of Prosecutors (IAP), the only world organization of prosecutors, as its 75th organizational member. The IAP has its own standards of professional conduct for its members, and these require prosecutors to always conduct themselves “professionally, in accordance with the law and the rules and ethics of their profession”. They should, moreover, “always serve and protect the public interest”.
Although the department’s own prosecutors are familiar with these and other aspects of prosecutorial responsibility, it does not necessarily follow that all the lawyers in private practice who sometimes conduct prosecutions on its behalf are equally aware. There are understood to be several hundred lawyers on the department’s different court lists, and, usually on rotation, they prosecute cases on what is known as “the Secretary for Justice’s fiat” (hence, “fiat lawyers”). Although many of them only prosecute a handful of cases each year, fiat lawyers perform an invaluable role in the criminal justice system, and are particularly useful when the department is short of manpower.
In 2021, for example, 164 criminal trials were briefed out to private lawyers to prosecute in the Court of First Instance, accounting for 1,629 court days. In the Magistrates’ Court, moreover, there were 979 cases in which private lawyers were briefed in substitution for public prosecutors in 2021, accounting for 3,240 court days. In the financial year of 2020-21, the department spent about HK$278 million ($35.58 million) on briefing out its cases to the private sector.
As large numbers of private practitioners now prosecute its cases on fiat, the department has to go the extra mile to ensure that they, like their in-house prosecutors, are fully aware of the high standards expected of those who conduct its cases. On Nov 21, therefore, all the lawyers on its fiat lists received a letter from the department, alerting them to various important issues. It then, “with a view to ensuring the highest standard of professional performance by fiat counsel”, invited them to sign an undertaking to observe certain professional considerations.
These included avoiding conflict of interest, observing confidentiality when handling sensitive materials, abiding by the requirements of the National Security Law for Hong Kong, and not disclosing protected information in breach of the Official Secrets Ordinance (Cap 521). By any yardstick, therefore, the letter was a timely reminder, and its recipients should find it very helpful. It shows, moreover, that the department is keenly aware of its responsibility, in the public interest, to exercise quality control in relation to those who act for it in the criminal courts.
Indeed, the department, when questioned, explained that the letter was issued to the fiat counsel as a reminder that “they should act like public prosecutors and should avoid conflict of interest, observe confidentiality requirements and the provisions of the National Security Law”. It is hard to see how anybody could reasonably take exception to this, particularly as the fiat lawyers are all likely to be law-abiding individuals who are committed to discharging their duties professionally, and will have no difficulty in signing the undertaking.
It may, moreover, be noted that the fiat lawyers are only involved in general criminal cases, and have no responsibility for prosecuting cases endangering national security. This is because, as the National Security Law makes clear (Art 18), national security cases can only be prosecuted by prosecutors from the department’s “specialized prosecution division responsible for the prosecution of offenses endangering national security”. In other words, the letter has no implications for the conduct of national security prosecutions, which are all handled in-house.
Although private lawyers can certainly defend in national security cases, they must, like prosecutors, strictly preserve confidentiality. This is because the National Security Law (Art 63) stipulates that “a lawyer who acts as defense counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he or she comes to know in the practice of law”. There is thus, a particular responsibility, in relation to both prosecutors and defenders when national security is involved, and everybody obviously needs to appreciate this fully.
The department’s letter is, therefore, welcome, not least because it reminds fiat lawyers of the standards it expects of those who represent it, particularly after the enactment of the National Security Law in 2020. It is in no way sensational, and the undertaking will bring home to everybody the qualities required of those who, in whatever capacity, help to operate the criminal justice system. Standards, after all, do not always take care of themselves, and nobody should be concerned when steps are taken to actively promote them within the legal community.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.