By Jerome A. Cohen
David Leung has resigned as Director of Public Prosecutions (DPP) and will leave on December 31, citing disagreements with the Secretary of Justice. The most important functions of the Office of Hong Kong’s Secretary of Justice are carried out by the DPP and his staff. With respect to HK’s rule of law, that job has been more important than any judgeship or other judicial work. The DPP’s office is the most important place where discretion has to be exercised regarding whether or not someone in HK should be punished and, if so, for what offense. Prosecutors often have enough evidence to technically justify a conviction, but, as the head of the HK Bar Association recently recognized, there are often good reasons for not bringing a prosecution. Courts and even juries often have little discretion in deciding the cases brought before them. That’s why, once prosecutors decide to indict, conviction rates are generally very high not only in dictatorships like China and Russia but also in democracies like Japan and the United States (where plea bargaining generally prevails in practice rather than trial on the merits).
David Leung’s resignation as DPP tells us a lot about the changes required in HK justice under the National Security Law. Although during his leadership his office successfully carried out many unpopular prosecutions because, after independent examination of each case, he decided, rightly or wrongly, that respect for the rule of law, including the exercise of discretion, justified prosecution. He steadfastly argued against police or politicians influencing the decisions to prosecute. That independence apparently led Beijing and its local minions to lose confidence in him. The NSL removes NSL prosecutions from the DPP’s consideration and places them under special Beijing-controlled arrangements. The new regime refuses to allow him to even know about the operations of the new unit within the DOJ for the handling of NSL offenses. This is a pathetic situation. We are not yet told who is making the decisions about whether to prosecute alleged NSL violations. Who has been appointed to head the new special NSL office within the DOJ, and what influences is that person subject to? This is the real crux of the struggle for judicial independence, although the NSL has also taken steps to curb the powers of HK judges and juries to the extent they will still be allowed to handle NSL cases.