APPENDIX E

Letter of 19 October 1998 to the Chief Executive tendering
advice on the proposed creation of a new rank of
Chief Court Prosecutor in the Court Prosecutor Grade
in the Department of Justice

19 October 1998

The Honourable TUNG Chee Hwa
The Chief Executive of the
    Hong Kong Special Administrative Region
    of the People's Republic of China
Chief Executive's Office
Hong Kong

Dear Sir,

Proposed Creation of a New Rank of
Chief Court Prosecutor in the Court Prosecutor Grade
in the Department of Justice

             We have been invited by the Administration to advise, under Clause 1(b) of our Terms of Reference, on its proposal to create a new rank of Chief Court Prosecutor in the Court Prosecutor grade in the Department of Justice.

Background

2.        The Court Prosecutor (CP) grade is a Matriculation grade. CPs are deployed in the Prosecutions Division of the Department of Justice to undertake prosecution of criminal cases in magistracies. The grade is managed by the Senior Assistant Director of Public Prosecutions (SADPP), who is a Deputy Principal Government Counsel.

3.        When first created in 1977, the CP grade was a one-rank grade. A Senior Court Prosecutor (SCP) rank was created in 1983, on the recommendation of this Commission. The SCP was charged with the supervision of all CPs as well as the prosecution of more complicated cases not handled by Government Counsels. Following the 1989 Review, a new higher rank of Senior Court Prosecutor I (SCP I) was created to further improve the structure of the grade. The former SCP was retitled as Senior Court Prosecutor II (SCP II). The new rank structure and pay scale of the CP grade introduced since the 1989 Review are shown below. They have remained unchanged up to the present -

4.        The CP grade experienced significant staff wastage of 27.1% and 20.7% in 1992/93 and 1993/94 respectively. In the Audit Report published in 1993, the Director of Audit observed that this had resulted in the briefing out of a substantial amount of prosecution work to private counsels at much higher cost. A working group subsequently set up in the then Legal Department recommended, amongst other things, the creation of a new Chief Court Prosecutor (CCP) rank and an increase of staff for the CP grade.

5.        The Administration accepted the need for more posts but rejected the proposal for a new CCP rank, on grounds of insufficient functional justifications. A total of 23 additional posts were created. A comparison of the establishment of posts before and after 1 April 1995 is shown below. These establishment figures have remained unchanged up to now -

Recent Developments

6.        The Department of Justice (D of J) has recently revived the proposal for the creation of a CCP rank. On account of developments since 1995, D of J considers that sufficient functional grounds have emerged to justify the creation of a new highest rank in the CP grade to improve its management structure. These developments, outlined in the paragraphs below, consist mainly of, first, the growing responsibilities of the SADPP, as a result of which there is a need to relieve the SADPP of his management responsibilities for the CP grade so as to enable him to focus more on other duties requiring his professional knowledge and, secondly, the rapid expansion in the establishment of the CP grade, necessitating the creation of a new highest rank in the interest of better grade management.

Growing Responsibilities of the SADPP

7.        Over the past two years, the Prosecutions Division has experienced continuous growth in caseloads and mounting pressure of work. To cope with the situation, the responsibilities of the different sections within the D of J have been rescheduled. Since September 1996, the SADPP has taken on the responsibility of giving advice to the police in respect of all magistracies' court cases and lay court prosecutors. With the publication of the Victim's Charter in January 1997, prosecuting officers have to comply with a set of duties and obligations and the SADPP is responsible for ensuring the general compliance with these provisions. On top of these new duties, the SADPP continues to be responsible for all administrative and management matters of the CP grade and for overseeing the operation of ten magistracies, involving 127 staff in the CP grade and 88 staff in the clerical grade.

8.        As manager of the CP grade, the SADPP provides direct supervision and guidance to nine SCP Is working in the headquarters and the magistracies to ensure proper conduct of prosecution work in magistracies. Although he is assisted by one SCP I, these onerous management duties have made it increasingly difficult for him to devote sufficient time to the many other subjects under his control. The D of J considers it necessary, therefore, to release the SADPP from duties which do not require professional input so that he can concentrate more on the supervision of Government Counsel grade officers, determination of legal proceedings, advisory work and court appearances.

Expansion of the CP Grade

9.        The total number of posts in the CP grade was increased from 104 to 127 on 1 April 1995. The number of SCP I alone was increased from 3 to 9. In the views of the Administration, this has rendered the current practice of deploying one SCP I to assist the SADPP in grade management matters concerning colleagues of the same rank inappropriate. A full-time grade manager at a rank senior to SCP I is therefore needed to assist the SADPP in the overall supervision and management of the CP grade.

The Administration's Proposal

10.       On account of the functional justifications set out above, the Administration proposes that a new rank of Chief Court Prosecutor (CCP) be created, offset by the deletion of one SCP I post, to assist the SADPP in managing the CP grade and to take over from the SADPP the following duties -

11.       The Administration proposes that, in line with the pay scale for comparable ranks in other grades within the Matriculation group, the pay scale of the CCP rank should be set at MPS Points 40 - 44. The new rank structure, pay scale and change in establishment of the CP grade will be as follows -

Alternatives

12.       The Secretary for Justice has considered the following alternatives to the creation of the CCP rank but found them not viable -

Staff Consultation

13.       The Administration has consulted the Court Prosecutors Association which supported the creation of a CCP rank with pay scale set at MPS Points 40 - 44.

Commission's Views and Recommendations

14.       From the staff management point of view, the current practice of deploying one out of the nine SCP Is to assist the SADPP in managing the CP grade is not entirely satisfactory. To remedy the situation, the responsibility for CP grade management should be assumed either wholly by the SADPP, or if this is not possible, the SADPP should be underpinned by an officer from the CP grade at a more senior rank than SCP I. There is, therefore, a prima facie case to create a new highest rank in the CP grade to rationalise its management structure.

15.      The case is further strengthened by the Department of Justice's decision to devolve management responsibilities from the SADPP to a member of the CP grade so that the SADPP could concentrate more on duties requiring professional knowledge. The devolved duties (set out in paragraph 10 above) embrace a broader range of activities which are more complex and demanding than those currently performed by the SCP I. We are satisfied that they constitute sufficient functional justifications for the creation of a new higher rank in the CP grade. The ranking of the new post at the Chief Court Prosecutor rank with pay scale set at MPS Points 40 - 44 is in line with the established arrangements for other Matriculation grades with a rank at comparable level. The ranking and pay scale of the proposed CCP rank can, therefore, be supported.

16.       The Administration has examined the question of possible implications on other grades performing para-legal duties in magistracies. They are the Judicial Clerk grade and the Court Liaison Officer grade. The former is a civil service grade (also within the Matriculation group); the latter a non-civil service grade, under the Duty Lawyer Scheme subvented by Government. The rank structure and pay scale of these two grades are better than those for the CP grade at present. In the Administration's views, the situation of the CP grade will be improved after the creation of the CCP rank. In terms of rank structure and pay scale, the CP grade will be on a par with the Court Liaison Officer grade while the salary gap between the CP grade and the Judicial Clerk grade will be narrowed.

17.       There are 16 grades currently classified under the Matriculation group. With the exception of four of them, the pay scale for the highest rank in the other 12 grades are all set at MPS Points 45 - 49. The four exceptions are the CP grade, the Law Clerk grade, the Assistant Shipping Master grade and the Statistics Supervisor grade. The maximum salary for the highest rank in the Assistant Shipping Master grade and the Statistics Supervisor grade are both set at MPS Point 33, while that for the CP grade and the Law Clerk grade are set at MPS Point 39. By increasing the maximum salary of the CP grade to MPS Point 44, we are concerned about possible implications on the Law Clerk grade. We have been assured by the Administration, however, that this should not have any direct impact on the Law Clerk grade because its functions and responsibilities are different from the CP grade. The Administration undertakes, nevertheless, to consider any proposals for the creation of new ranks from the Law Clerk grade or any other grades on their individual merits.

Conclusion

18.       In conclusion, we support the Administration's proposal for the creation of a new Chief Court Prosecutor rank, with a pay scale set at MPS Points 40 - 44, in the Court Prosecutor grade.