Prosecutorial and Judicial Independence of the Superior Courts in Hong Kong

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Basic Law provides for both prosecutorial and judicial independence, as both are vital under the Rule of Law in Hong Kong.

This paper looks at issues in connection with prosecutorial independence and judicial independence of the superior courts. Indeed both are not functioning with total independency with the judiciary perceived to be more independent. As both are vital to the rule of law in Hong Kong, the prosecutorial independency and judicial independency of the superior courts shall be kept to the highest standard.

Prosecutorial independence:

The prosecutorial function of the Department of Justice is carried out by the Prosecutions Division, whose role is:

‘to prosecute trails and appeal on behalf of the HKSAR, to provide legal
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It is noted that public interest, a vague yet broad concept, is cited as an important criterion for prosecution.

Judicial Independence:

It is the constitutional responsibility of the judge to provide fair and impartial justice in accordance with the law based on the relevant evidence presented in court. When carry the judicial function, the judge must be free from any influence and act independently.

The Basic Law provides a comprehensive guarantee of judiciary independence. Those provisions include Article 2 (independent judicial power, including final adjudication), Article 19 (jurisdiction over all cases in HKSAR), Article 81 (court system in HKSAR), Article 82 (Court of Final Appeal as the apex court of HKSAR), Article 84 (adjudicate cases according to laws applicable in HKSAR; refer to precedents of other common law jurisdictions), Article 85 (exercise judicial power independently, free from any interference; immune from legal action in the performance of the judicial functions), Article 89 (remove judges only in case of inability to discharge duties, or misbehavior), Article 92 (judges and other members of the judiciary are recruited on the basis of their judicial and professional qualities; can recruit from other common law jurisdictions).

Article 10 of HKBORO

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