G. Role and duties of the prosecution

G. Role and duties of the prosecution

1. Role and functions

According to the Prosecution Code 2013 released by the Department of Justice, a prosecutor is required to comply with and promote the rule of law.  A prosecutor acts on behalf of the community in an impartial manner and as a "minister of justice".  Hence, in order to achieve this, a prosecutor must fairly and objectively, with accordance to the law, assist the court so as to do justice between the community and the accused.

Further, a prosecutor needs to present to the court credible evidence, relevant to what has been alleged to be a crime.  The role of a prosecutor excludes any notion of winning or losing and their function is a matter of public duty.

Since a prosecutor works in an adversarial and accusatorial litigation system, the prosecutor's advocacy role must be conducted temperately and with restraint, carrying out their roles as an integral part of a criminal justice process that includes investigation, prosecution, defence, adjudication and punishment.  

When in litigation, it is the duty of a prosecutor to, at all times, assist the court by putting forth relevant and credible evidence, making correct submissions of law, maintaining the highest standards of professional conduct and not behave in a manner which is acrimonious or offensive, or otherwise inconsistent with their position as a prosecutor. Prosecutors should invite the court to stop proceedings if it is apparent that there is no longer a reasonable prospect of conviction.

For the avoidance of doubt, a prosecutor should not argue or put forth facts or law where such submissions do not carry any weight or contribute to a decision of a court. Material that is put to a witness or accused must be accurate, reliable and justifiable under the circumstances.

To that end, any appealable error that is apparent in the course of the trial and sentencing proceedings must be made note of to the court immediately and be rectified as directed by the court.

2. Fairness

The bedrock of a prosecutor's duty is fairness.  As a prosecutor is required to prosecute in an effective and efficient manner, they should prepare and assemble all relevant evidence available to the prosecution well in advance of trial.  The prosecution should offer all of its evidence when presenting its case, informing the court of the defence authorities, warnings and directions that may be appropriate, even if it is unfavourable to the prosecution's case.

Any relevant material available to the prosecution that may not be admitted as evidence (including any material that appears to have been obtained illegally or by way of an improper manner) must be identified.  Yet, the prosecution has the option to decline adducing such materials though as part of their disclosure obligations, they must inform the defence of all such unused materials. If the prosecution decides to lead any such materials as evidence, the defence must be informed and if the defence objects to it, the court will ultimately, be the body to determine the admissibility of such evidence.

3. Human rights

The human rights of suspects, accused, victims, witnesses and other members of the public may be affected by virtue of a prosecutor's conduct in carrying out their role.  As such, a prosecutor must at all times during the course of criminal proceedings be aware of those rights, as well as their sources and to respect or give effect to them as appropriate.

The fundamental rights of Hong Kong residents and others are enshrined under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383).  A prosecutor will need to be aware of such legislations and must at all times, be alert to the rights of an accused which are relevant to the prosecution process, including the principles that all people must be equally protected by the law, the rights in having confidential legal advice, innocent until proven guilty, and the right to a fair trial without undue delay.

To that end, in determining whether to prosecute a case or to continue a prosecution, the rights of an accused and other parties to the proceedings should be considered.