After serving as the DPP for 12 years, Cross stepped down in 2009 but he has not retired quietly and maintains an active interest in the prosecutions field. He is the vice-chairman of the senate of the IAP and mainly works for its Standing Committee on Prosecutors in Difficulty, which gives advice and assistance to prosecutors from around the world on request.
Cross is also involved in teaching as he finds it fulfilling. He is currently a visiting professor at four universities in Hong Kong, Beijing and Wuhan where he gives lectures on Hong Kong’s criminal procedure, the operation of its legal system and the common law system. He says he likes to share his knowledge and exchanges ideas with students because they sometimes suggest new perspectives.
Besides lecturing, he edits criminal law books including Archbold Hong Kong and Sentencing in Hong Kong for criminal lawyers, judges and magistrates to use in the courts of Hong Kong. He also writes for newspaper columns where he advocates for changes in the law and occasionally offers forthright criticisms of the current state of public prosecutions and law reform.
Mostly, he is critical about the serious delays that take place in the Law Reform Commission and in the prosecutions system. He says the commission is very slow in its handling of newly proposed laws and this may make Hong Kong fall behind other countries. For instance, it took eight years to finish a report on admitting hearsay evidence in criminal cases in 2009, but Cross says the nothing has been released since then.
Cross also says it was “astonishing” for prosecutors to take three years and eight months to investigate former chief executive Donald Tsang Yam-kuen’s misconduct in public office for failing to disclose a conflict of interest.
“Justice delayed is justice denied,” Cross says. He says that as time passes, it becomes hard to find witnesses to present in court and those that do appear may not remember past details clearly.
He sees an urgent need to improve the standards of prosecution, pointing out that the conviction rate in the magistrates’ courts is constantly low at around 50 per cent, and that failed prosecutions cost the DOJ around HK$134 million from 2011 to 2015. He attributes this to the DOJ’s 2008 decision to stop recruiting new court prosecutors who have more experience in magistrates’ court prosecutions. Instead the department briefed out their work to newly qualified lawyers from the private sector so that they could “get some training at the start of their careers,” says Cross.
Hong Kong has experienced significant political events after Cross left office, including the Umbrella Movement in 2014, the Mongkok disturbances in 2015, last year’s Legislative Council “oathgate” controversy, former chief executive Donald Tsang’s corruption case and the controversy over chief executive Leung Chun-ying’s HK$50 million UGL deal.
Tackling these politically sensitive cases adds to the pressure on public prosecutors and while Cross says he believes the DOJ makes decisions on prosecutions objectively based on its guidelines, he thinks an independent prosecution system is needed.
Currently, the Prosecutions Division is headed by the Secretary of Justice, a government minister appointed by and answerable to the Chief Executive, who has ultimate say on prosecution decisions. Cross has been campaigning for the Secretary of Justice to “disengage” from prosecutions and leave those decisions to an independent DPP, a civil servant without political encumbrances. Cross believes this would help to restore much-needed public trust and confidence in the criminal justice system. However, he says it is a difficult cause to pursue because the DOJ keeps blocking attempts to establish an independent DPP without rationalising its actions.
He also says that there is now less transparency in public prosecutions than during his time, even though transparency is more important than ever given the increasing number of politically sensitive cases.
Cross says the DOJ has failed to explain the unreasonable delays in prosecuting many cases, including those related to the Umbrella Movement, the Donald Tsang case and also deciding whether Leung Chun-ying has a case to answer. He points out the DOJ disbanded its Vulnerable Witness Team in 2010 – established in the 1990s to tackle cases involving underage and mentally disabled victims. But this was only discovered last November and the DOJ did not inform or consult the police and non-governmental organisations beforehand.
He hopes the trend can be reversed. “Transparency is not something for prosecutors to fear as it can actually strengthen their position in the community and blows away myths and misunderstandings,” says Cross.
Edited by Venice Lai
