tim's experiment

I am sure Grenville Cross, SC, honorary Law prof at HKU, and a former Director of Public Prosecutions, is a nice man. I do not doubt that he is an agile lawyer, kind to children and dogs, and so on. His besetting problem is the inability to foresee how the stuff he puts out will be interpreted and understood by people taking a different point of view.

This is a rather roundabout way of approaching his piece in the Post last week about Deferred Prosecution Agreements – or DPAs – which he urged the Law Reform Commission to introduce into Hong Kong as soon as possible. A DPA is a euphemism for an arrangement in which the prosecution agrees to drop its case if the defendant coughs up a large sum of money. It was invented in the USA where many regulatory bodies are under pressure to produce enough income in fines to cover their running costs, and a bit extra to counter the argument that their activities are a waste of money. Mr Cross’s version has some restrictions not applied in other places – it would only be applicable to “corporate entities” for example – and comes festooned with elegant curlicues about considering the company’s efforts to comply with the law and the effect on employees and shareholders. But basically what it comes down to is that if you are charged with a complicated commercial crime you can buy off the prosecutor.

Understandably Mr Cross made no mention of the most conspicuous recent example, the dropping of the prosecution of Bernie Ecclestone – who is effectively the owner of Formula One and was accused of bribing a banker – in return for a payment of US$100 million. Nor did he mention the most conspicuous temptation attached to the arrangement from the prosecutor’s point of view – that it can be counted as a “win” without entailing the uncertainties of an actual trial and its risk of a humiliating outcome.  Complex commercial cases are a bit of a lottery. How much nicer just to have the whole thing sorted out privately between the lawyers.

The objection to this sort of thing is that it is not the way the law is supposed to work. If you are arrested in some Asian countries it is customary to offer to “pay the fine now”. This works just like a DPA. No trial takes place; no criminal conviction is recorded; the policeman collects the contents of your wallet. The objections to the procedure are obvious. Not least is the danger that the policeman may arrest people on flimsy grounds in the hope that they will “pay the fine now” and enrich him.

The law, according to an ancient dictum, is no respecter of persons. We are all supposed to be treated alike. In practice this is a hope rather than a fact. As Anatole France put it, “in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”  Protesting your innocence, moreover, can be expensive. According to legend there was a courthouse in Ireland which dispensed with the usual statue of a blind lady with a sword in one hand and scales in the other; instead it had a cow with one man pulling it forward by the horns, one pulling it back by the tail, and a lawyer milking it. Still, we do our best. And one of the ways we do our best is to avoid as far as possible the introduction of legal loopholes which are only available to rich defendants with expensive lawyers.

A “corporate entity” is, when you come down to it, a joint enterprise by a number of people. It doesn’t spring into existence miraculously. It has founders, owners and managers. Generally speaking you have to be rich to be one of them. The fact that they may be inconvenienced or impoverished if the company is prosecuted is not an unfortunate by-product; it is the object of the exercise. Those who give the company life and action are responsible for its behaviour. They are not innocent by-standers.

And there is a flagrant double standard here. If you rob a bank the prosecution will not offer you the option of going to prison for a few years, no conviction recorded, no trial… But if the bank robs you that is precisely the offer which prosecutors will make, modified only by the fact that as the bank cannot go to prison the punishment will be a fine.  The whole arrangement reeks of class privilege. Prison is for oiks and lesser breeds. Gentlemen who err should be allowed to sort it out privately with other gentlemen who went to the same university.