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1. 法政匯思對律政司司長鄭若驊女士(「鄭女士」)於2018年12月26日發表有關律政司於決定是否檢控高級政府官員時需否尋求獨立法律意見政策的言論深表關注。概括而言，鄭女士指出 (「該言論」)：
5. 香港大律師公會（「公會」）最近在其「就律政司決定不檢控梁振英之聲明」中，形容尋求獨立法律意見為「廣為接納並受認同的慣例」。法政匯思認同公會的看法 － 尋求獨立法律意見顯然為合適的政策，因為此政策能調和高級官員之間的潛在利益衝突， 並向大眾展現律政司之程序完整性及鞏固香港的法治。法政匯思不能理解，律政司長久以來於適當的案件中尋求獨立法律意見的政策，如何構成違反《基本法》第63條。
1. The Progressive Lawyers Group (“the PLG”) is deeply concerned by the recent remarks made by Secretary for Justice Ms. Teresa Cheng (“Ms. Cheng”) on 26 December 2018 on the Department of Justice’s (“DOJ”) policy on the seeking of independent legal advice when deciding whether to prosecute a senior government official. In gist, Ms. Cheng stated (“Remarks”):
a. The prosecutorial decision-making process in regards of any senior government official remains internal unless an official within the DOJ is involved. It is only in such latter situation that the DOJ would seek external advice.
b. The Department of Justice remains impartial in the handling of politically sensitive cases. The prosecutorial decision-making process is and will only be “in accordance with law and evidence”. An individual’s social status and political background would not attract any different treatment.
c. Article 63 of the Hong Kong Basic Law provides the legal basis for not seeking external legal advice, which provides: “The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”
2. The PLG questions whether Ms. Cheng’s Remarks represents a departure from the DOJ’s general prosecutorial policy as apparent from the DOJ’s position in regards of the prosecutions of other high ranking government officials. The PLG notes that the DOJ did seek independent legal advice in the cases involving the former Chief Executive Mr. Donald Tsang, the former Financial Secretary Mr. Antony Leung, a former non-official member of the Executive Council Mr. Franklin Lam, and the former Commissioner of the ICAC Mr. Timothy Tong.
3. The PLG further notes that according to a paper entitled “Briefing Out Cases of the Department of Justice” dated February 2018 prepared by the Department of Justice for the Legislative Council Panel on Administration of Justice and Legal Services, it was made clear that the “briefing out” of criminal cases would be appropriate when the DOJ has to “address possible perception of bias or issues of conflict of interest.” Furthermore, the paper listed out 6 circumstances where the DOJ may seek independent legal advice:
a. There is a need for expert assistance where the requisite skill is not available in the DOJ;
b. There is no suitable in-house counsel to appear in court for the HKSAR;
c. The size, complexity, quantum and length of a case so dictate;
d. It is deemed appropriate to obtain independent outside counsel’s advice or services so as to address possible perception of bias or issues of conflict of interests;
e. There is a need for continuity and economy, e.g. where a former member of the DOJ who is uniquely familiar with the subject
matter is in private practice at the time when legal services are required, or where it will be economical and in the interest of justice to engage the fiat trial counsel to conduct the relevant appeal; and
f. There is a need for advice or proceedings involving members of the DOJ.
4. The above scenarios warranting the “briefing out” of the prosecutorial decision-making process apparently differs from what Ms. Cheng has suggested in the Remarks. The Remarks show that there is a departure from the DOJ’s longstanding policy, which is dangerous as it would undermine public perceptions of the impartiality and trustworthiness of the DOJ and reduce public confidence in the rule of law in Hong Kong. No doubt the public would also be concerned as to whether it would become a precedent for excusing the prosecution of government officials in the future on a selective basis.
5. Seeking independent legal advice is described as a “commendable and well-recognised convention” by the Hong Kong Bar Association (the “HKBA”) in its recent “Statement on the Department of Justice’s Recent Decision Not to Prosecute Mr. CY Leung”. The PLG echoes the views of the HKBA – to obtain independent legal advice is clearly a desirable policy as it can mediate the potential conflict of interest between senior officials and display the procedural integrity of the DOJ to the public and strengthen the rule of law in Hong Kong. The PLG cannot see how the longstanding policy of the DOJ in obtaining of independent legal advice in appropriate cases would constitute any violation of Article 63 of the Basic Law.
6. The PLG urges the Secretary for Justice to review her decision in not seeking independent legal advice when deciding whether to prosecute Mr. CY Leung in regards of the UGL incident.
Progressive Lawyers Group
31 December 2018
(PDF version: https://goo.gl/TKewDh)