Prosecution Duty of Disclosure

The Law Society has recently reviewed the duty of the Prosecution on disclosure of evidence to the Defence.

Unlike England & Wales, which has a statutory regime, Hong Kong has no statutory regulation of Prosecution’s disclosure including the disclosure of unused material. The common law principles apply in Hong Kong.

Guiding principles on the duty of disclosure by the Prosecution were laid down by the Hong Kong Court of Final Appeal (“HKCFA”) in HKSAR v LEE Ming Tee and Anor (2003) 6 HKCFAR 336. Among other things, the HKCFA recognised that the Prosecution is under a duty of disclosure to the Defence, which extends to material in the possession or control of the Prosecution which may undermine its case or advance the Defence case. In order to ensure that all disclosable material is provided to the Defence, prosecuting counsel should instruct investigating officers and, where appropriate, witnesses to bring to counsel’s attention any material that may be disclosable.

The Department of Justice (“DOJ”) has published a Prosecution Code of Conduct. There is a chapter in the Code on the duty of disclosure. In its latest version (2013 version), the DOJ states that:

“12.1  Article 87 of the Basic Law gives to any accused the right to a fair trial. One of the guarantees of fairness is the full and timely disclosure to the Defence of all relevant or possibly relevant material (or material information – and not confined to admissible evidence) available or known to the Prosecution, whether it assists in the proof of the Prosecution case or, on a sensible appraisal by the Prosecution, may reasonably be regarded as:

(a) being relevant or possibly relevant to an issue in the case;

(b) raising or possibly raising a new issue whose existence is not apparent from the evidence that the Prosecution proposes to use; or

(c) holding out a real (as opposed to fanciful) prospect of providing a lead to evidence which goes to (a) or (b).

12.2    The duty to disclose is a positive and continuing duty on the Prosecution that begins pre-trial and carries through to the end of the criminal process before the courts.”

We welcome the general language in the above paragraphs; however, we note that the above embraces less materials and discussion on the duty of disclosure, when compared to the previous version released in 2009. Those paragraphs missing from the 2009 version contained useful reference. There is no reason offered as to why the current version has been abridged.

In a recent case of 香港特別行政區 訴 A, CACC 400/2013 (a judgment in Chinese delivered on 16 September 2015), the Court of Appeal’s attention was drawn to the differences between the above two versions of the Prosecution Code. Although the Court has not compared the two versions, it stated that it anticipated the Secretary for Justice to review and to consider how the current (2013) Code could be improved. We join the Court of Appeal to ask for a review.

On practice and procedural issues, when the Prosecution is making disclosure, we ask that there should be reasonably clear descriptions of the items to be disclosed. Furthermore, the Prosecution should make use of searchable PDF files or other suitable means.

We have surveyed the overseas experiences, including that of the UK, in the course of our study. We invite the DOJ to draw reference from the UK on their office of a “disclosure officer”, and the code to disclose “negative information”.

A detailed submission on the above has been sent to the DOJ. A copy of the submission can be found at http://www.hklawsoc.org.hk/pub_e/news/submissions/20160409.pdf.

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