An inquiry board recommends the Department of Justice prepare specially-tailored disclosure guidelines for prosecuting departments.

In its report on the criticism by the Court of Appeal in May of the conduct of the prosecution of Dairy Farm, the board said the prosecution was justified.

On December 22, 2003, the Food & Environmental Hygiene Department found two suspect unskinned forequarters of pork at a Wellcome supermarket in Sha Tin. Dairy Farm was summoned for possession for sale of prohibited food.

Last May the Court of Appeal granted a permanent stay of prosecution, saying evidence related to surveillance operations prior to December 22, 2003, had not been disclosed to the defence, which amounted to 'bad faith'.

Prosecution appropriate

The board said the department acted appropriately in prosecuting Dairy Farm. Since it was the licensee of the fresh provision shop in the supermarket, it was responsible for the alleged offence arising in the shop operated for it by Supermaster, a concessionaire.

The board nonetheless said had the department investigated Supermaster, it might, depending on the outcome of any investigation, have been possible to have prosecuted Supermaster also.

On the non-disclosure of surveillance operation material to the defence, the board said there was no proof the department and the prosecuting counsel on-fiat deliberately decided to conceal the existence of the surveillance operation from the defence.

Both the department's legal adviser and the fiat counsel were of the opinion that material related to the surveillance was not relevant, and therefore did not need to be disclosed, the board observed.

Nonetheless, the board felt it was not a view which fully reflected the extent of the duty of disclosure which the law now places upon those who prosecute.

Disclose the facts

The board said the surveillance operation should have been disclosed to the defence prior to trial as it could have assisted those responsible for the defence.

On the two statements defence solicitors served before the trial began, the board concluded they satisfied the criteria specified for their reception into evidence. The board felt the purpose for which the statements were served should have been stated explicitly so the receiving party was placed on notice.

The board said the significance of the statements lay in the fact they provided Dairy Farm with a possible line of defence based on an honest belief reasonably held that proper procedures were used in the processing of the meat supplies.

The board concluded that the more prudent course for fiat counsel to have adopted would have been to seek a review of the decision to prosecute in light of the two defence statements.

Board's recommendations

The board recommended that in future, fiat counsel should be reminded of their duty to ensure the continuation of a prosecution which has been instituted remained in the public interest.

It recommended that specially-tailored guidelines on disclosure for the use of prosecuting departments should be prepared by the department.

Prosecutors in various government departments should be reminded of the ambit of the duty of disclosure.

Increased emphasis should be placed on disclosure requirements in training courses for departmental prosecutors.