Accusatorialism in Criminal L 43 Under the accusatorial model In

Accusatorialism in criminal l 43 under the

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Accusatorialism in Criminal Litigation 83 84
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43 Under the accusatorial model: In an open, impartial court, prosecutor and accused may test each other’s case through empirical evidence subjected under rigorous evidentiary procedures. The trial may thus be seen as a contest between the parties’ legal and evidentiary arguments , rather than an official investigation into whether and how a crime was committed. The judge’s role is an unbiased umpire . He does not participate in gathering evidence or shaping up the case. Criminal Sentencing Punishments include imprisonment, fines, suspended sentences, probation, community service, discharge either conditional or unconditional, binding-over, compensation, restitution, forfeiture, and disqualification. Capital punishment was last imposed in 1966 and abolished in 1993 by statute; caning was abandoned in 1990. The parity of sentences: offenders of similar backgrounds committing the same offence ought to receive the same sentence. Aggravating factors make the sentence more severe; whilst mitigating factors lighten it. 85 86
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44 Prosecutorial Independence Art.63, Basic Law: ‘The Department of Justice of the Hong Kong SAR shall control criminal prosecutions, free from any interference’. Prosecutorial independence is critical to preventing the Prosecutions Division to descend into a tool of the powerful for persecuting residents arbitrarily: The public prosecutor has no client but the community at large. He knows neither victory nor defeat. His duty, above all, is to act impartially in pursuit of the public interest. 87 88
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45 Criminal Procedure Ordinance (Cap.221), s 15(1): ‘The Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference’. The Prosecution Code 2013: ‘[C]omply with and promote the rule of law ’ and ‘ fairly and objectively assist the court to arrive at the truth and to do justice between the community and the accused according to law’ (3.3). Prosecute ‘ temperately and with restraint ’ (3.7). Any decision to prosecute must satisfy two mandatory conditions (5.3): It must be supported by sufficient admissible evidence . It must be consistent with the general public interest . The Secretary for Justice is nonetheless ‘a politician who sits on the Executive Council and answers to the Chief Executive.’ He is also the principal legal adviser to the Chief Executive, the government and independent government departments and agencies. 89 90
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46 The proposal that an independent and politically neutral Director of Public Prosecutions be in full control over prosecutions has been continuously resisted by the Government.
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