Politicians and Prosecutorial Accountability in Hong Kong

Abstract

This article examines the role of the prosecutor in the common law system, with special reference to Hong Kong, and taking as its focus the decision not to initiate a criminal prosecution. Such decisions are the subject of repeated criticism by politicians and the media on the grounds of political and class bias protected by a non-transparent system of accountability. The prosecutor's decision is examined in the broader context of available grounds for challenge, including private prosecution and judicial review. It is argued that the very fact that these grounds of challenge are so limited has contributed to a culture of political interrogation that is both understandable and self-defeating. Political hearings, which may be intended to serve other purposes, have historically failed to get behind non-prosecution decisions, have rarely had any basis in fact and have been easily deflected by a robust refusal to answer key questions. It is argued that modern understandings of accountability require a different approach requiring the prosecutor to give reasons for non-prosecution decisions in defined classes of case to victims, their families and survivors, opening up for scrutiny broad policy issues which current practice has ignored and subjecting the prosecutor's office to a system of independent inspection. The decision of whether or not to prosecute is a vital one. Vital for the suspect. Vital to the victim. Vital to the community. Great care must always be taken. A decision to prosecute should only be taken after the evidence and the surrounding factors, including those which are favourable to the suspect, have been carefully evaluated. An erroneous prosecution decision may erode public confidence in the criminal process.