“If you are not conversant in human rights, in my opinion, you cannot function effectively as a criminal lawyer in this modern age”, says newly-minted judge Kevin Zervos over morning coffee recently, following his retirement as Director of Public Prosecutions (“DPP”).
Fifty-nine years of age but easily passing for much younger, the former DPP turned High Court justice is eager to share his beliefs and stories accumulated over 20 years when he was in the Department of Justice.
For one he certainly walks the talk, particularly regarding his belief for the need for constant learning - Justice Zervos completed a two-year Master of Laws (Human Rights) at The University of Hong Kong just recently in 2009. This capped off another longtime belief in the life-changing impact of human rights on people’s lives, and that all prosecutors should have a fundamental understanding of this subject in order to properly do their job.
“If you want to be respected, you have to respect others. It should start in an organisation like the justice department,” he tells Hong Kong Lawyer.
Quoting Article 1 of the Universal Declaration of Human Rights that all human beings are born free and equal in dignity and rights, he says the principle of equality before the law should “always be deeply embedded in the heart of prosecutors”.
Starting out as an environmental lawyer in Australia, Justice Zervos went on to join the country’s Special Prosecutor’s Office responsible for the investigation and prosecution of large-scale revenue frauds. Then, in 1985, he took up the Senior Assistant Director role at the Melbourne and Sydney Offices of the Commonwealth Director of Public Prosecutions and thereafter, the position of General Counsel to the Independent Commission Against Corruption in New South Wales.
“One thing led to another” and in 1992, he was recruited to work in Hong Kong as counsel with the then Attorney General’s Chambers. Justice Zervos says he never foresaw himself becoming a government or criminal lawyer, nor did he ever imagine he would take silk and become DPP.
“I had intermediate, but not long term goals. When things become achievable, you should set out to achieve them… You should take advantage of the opportunities that life presents to you,” he says.
Compassionate and tough prosecutions
Justice Zervos believes in compassion for first-time offenders of minor offences.
“Sometimes we have young people doing something silly … other times we have mature age people who are going through a mid-life crisis and do something completely out of character. We are all human and likely to have done something we have regretted later at some time or another,” he mulls.
“A conviction can become a scar on the reputation of a person for the rest of their life which might well be out of proportion to what they have done. Prosecutors have the responsibility to decide whether or not it is in the public interest to secure a conviction against a person.”
This stance is in line with what was set out in the Yearly Review of the Prosecutions Division in 2012 – that securing a conviction against first-time offenders is not always the most effective deterrence to re-offending.
“Sometimes securing a conviction against a person can break their spirit, especially with young people. They sometimes just give up on life as a consequence. Rather than steering them out of crime, you may be steering them into it.”
To Justice Zervos, a bindover may be sufficient for first-time offenders as they still need to go to court and admit what they have done was wrong. Offenders pursuant to a bindover have to undertake to be of good behaviour for up to two years and an added sanction can be imposed of up to six months’ imprisonment for breaching the undertaking. Which means a bindover is certainly “not a let-off”.
On the other hand, Justice Zervos believes in coming down hard on serious crime, especially white collar crime. Money laundering is a major case in point.
He cites a case during his time as DPP, which involved an illegal gambling syndicate operating outside of Hong Kong’s jurisdiction, though proceeds were deposited in the city. Authorities ended up confiscating some HK$1.5 billion.
With a surge in the number of transnational crimes, the challenged faced by the Prosecution Division is unprecedented, leading to high demand – and necessity - to work closely with other jurisdictions.
In April 2012, based on information received from Interpol, a restraint order was obtained freezing HK$286 million worth of assets controlled by three fugitives from Egypt, Spain and Turkey where the money represented proceeds of cross-border money laundering. Coordinating with the US Department of Justice, a global restraint order was also obtained in Hong Kong and enforced in the US with a total value of frozen assets worth HK$470 million last year.
“Criminals bring money into secured financial centres like Hong Kong. It is a billion dollar- industry that we have to tackle or else our reputation and way of life suffers,” Justice Zervos says.
What is worse, he continues, is that people often do not perceive proceeds from money laundering to be related to serious crimes, such as corruption, prostitution, organised crime or even human trafficking. This is important because money laundering is not simply this notion of a victimless crime - which often does not resonate with people – it is the product of serious crime and the cause of serious hardship to people.
Since the Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance came into force last year, the number of suspicious transactions reports received has surged 29% in the first six months of 2013 alone compared to the same period in 2012. Also unveiled in the Yearly Review, about HK$1.39 billion in crime proceeds was also frozen under court orders in 2012 - the largest in three years.
Having combated white collar crime for decades, Hong Kong’s Prosecutions Division is known to be one of the world leaders in dealing with such matters, the former DPP says. More importantly, they cannot rest on their laurels as criminals are getting more and more sophisticated, Justice Zervos adds; it is imperative that Hong Kong’s prosecutors continue to exhibit exceptional high standards and maintain strict adherence to legal principles.
In spite of his short three-year stint as DPP, Justice Zervos brought numerous changes to the division. For example, the Prosecution Code was rewritten so that it is a “modern statement of a prosecution agency” with “clear and concrete terms”, while Prosecution Week was introduced to promote the criminal justice system and increase community awareness.
A range of training programmes and initiatives were also introduced for both prosecutors and the private profession. For instance, first started in 2011, the Prosecutions Division together with the Bar Association and the Law Society organised a joint training programme for newly-qualified lawyers to conduct prosecutorial work. An Understudy Programme was also introduced in 2012 where junior counsel can learn from and work with more senior counsel who have been briefed to prosecute.
“There are always things to do and there is always room for improvement. We could have sat back for three years and did nothing but we did not. One should never be satisfied with things as they are,” he says.
Justice Zervos was also keen to develop relations and establish regime locally and internationally. In 2012, the Prosecutions Division briefed visitors from various jurisdictions including Mongolia and Kenya on the work and the development of the criminal justice system of Hong Kong.
In the same year, prosecutors from Brunei and Singapore were also on attachment to the Prosecutions Division. In addition, a variety of conferences were also held by the division, such as the first Criminal Law Conference on Criminal Justice Reform, which attracted over two hundred attendees from both local and overseas jurisdictions.
“Different events and conferences provide prosecutors from other jurisdictions an opportunity to learn from us. They will be more professional when they prosecute. At the same time, we can learn from them and find out how they operate,” Justice Zervos explains.
“Everyone will benefit because better understanding and relations with each other helps us deal with the concept of criminal justice and crime, which is becoming more global.”
As one of the members in the interviewing panel, Justice Zervos took part in choosing Mr. Keith Yeung Kar Hung SC as the new DPP, the first local Hong Kong Chinese to take on the job. Speaking of the successor, Justice Zervos describes Mr. Yeung as one who is “hardworking, dedicated and with the upmost integrity”.
And contrary to public opinion, Justice Zervos denies that there is a shortage of talent in the Prosecutions Division. In fact, he says, with the attractive package on offer – including perks such as an exchange program and the opportunity to attend the Middle Temple Advocacy Course in London - “young talented lawyers are keen to get in”. To recruit the right people from the large pool of applicants, however, requires a thorough and dedicated recruitment program.
“We are looking for people who are bright, committed, hard working and publicly spirited. Being publicly spirited, especially, is very important for a public prosecutor. They should have the commitment to do this work on behalf of Hong Kong,” he says.
He explicitly expresses his appreciation to prosecutors, particularly the younger set, for having “youthful exuberance”, which sometimes more than compensates for a lack of experience. He praises his former colleagues for their commitment and desire to “get things right”.
“We have very good young officers…Many times, I see young counsel outdo an experienced one, because they have the drive and the enthusiasm which the experienced counsel may have lost a long time ago,” he observes.
While commitment “counts a lot”, Justice Zervos also points out that constant improvement is also crucial as a prosecutor.
“You cannot be complacent. You should be always seeking to improve and excel. If something does not work, you have to change it and find some other way to make it work. You have to be responsive …Good work is the golden rule. If you work hard, you will get rewarded.”
Change of role
While many others in his previous position as DPP would rather keep a low profile, Justice Zervos knows full well the benefits that mass media can bring to the community in terms of conveying awareness and information. Indeed, in his time as DPP, some local Chinese papers often described him as “Outspoken Zervos”.
“I would rather spend time with the media explaining what we are doing instead of ignoring them, which was part of the approach in the past,” the judge tells Hong Kong Lawyer.
“You need to build a constructive and meaningful relationship with the media because they play a very important role in the community. They speak for and with the community and you need to get your message across – so you have to engage them.”
Now that he is with the judiciary however, things will have to be different, if only to convey the topmost judicial element of impartiality.
“Before I was engaging and outspoken, because it was expected of me, or what I expected of myself as a DPP. But now as a judge, it is a different role and function. You have to be judicious,” Justice Zervos says, with almost a tinge of regret.
The style may change and what he does may be different but there are elements that are indispensable as a DPP or a judge, which are to always dispense justice while adhering to legal principles and practice.
“I am first and foremost a disciple of the law,” he says.
“I always looked to the law and its principles when I made decisions as a DPP… As a judge, you are to dispense justice between the parties in a particular case and you do that according to the same law and principles.”
Although Justice Zervos will be kept out of criminal trials or appeals or any civil cases involving the government for the first six months in his new role, he shows no preference in dealing with a particular type of case and is pleased to accept what is given.
“I am a lawyer and lawyers deal with the law whatever the area may be…I am just interested in the practice of the law,” he says.
What is also certain, is that this lawyer is not contemplating retirement just yet. A little while ago, he remarks, he just appeared before Court of Final Appeal judge Sir Anthony Mason, who remains “as sharp as a tack “at 88.
“I think you are at your prime when you are in your 60s,” Justice Zervos says with a big smile.
By Carmen Chu