RESOURCE MATERIAL SERIES No. 55

TOPIC 2
THE ROLE OF PROSECUTION IN THE CHANGING SOCIETY
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Morio Kubota(Japan)Ms. Ana Maria Fuentes Rivera(Peru)
Mr. Selvanathan Shanmugham(Malaysia)
Mr. Hong-Hoon Lee(Republic of Korea)
Mr. Mangasi Situmeang(Indonesia)
Mr. Mohan Bahadur Karki(Nepal)Mr. Kazunori Nakada(Japan)Deputy Director Masahiro Tauchi (UNAFEI)
Professor Chikara Satou(UNAFEI)
Professor Shinya Watanabe(UNAFEI)

I. INTRODUCTION
The criminal justice system comprisingof the police, prosecution, judiciary,
probation officers and the prison
authorities are important in administering
justice to the society. Amongst the above
named components of the criminal justicesystem, the prosecution is the backbone ofa successful system. It would not be an
exaggeration to state that the prosecution
is pivotal to the practical functioning of thecriminal justice system. The prosecution
plays a balancing act between theapprehension of criminals by the police andthe finding of guilt as well as punishment
by the judiciary.
In many jurisdictions, the police, apartfrom maintaining law and order, also
conduct investigations as provided by law.
Upon completion of the investigation, thepolice then turn to the prosecution. The
prosecution at this juncture, in many
countries, advises further investigation or
makes a decision on whether to proceed tothe trial stage or not. The prosecution
ought to play a major role in ascertainingthat justice is done not only for the society
but also for the accused, as the case may
be. In any jurisdiction, the prosecution fails
to play its role in the criminal justice432

system if the prosecutor does not maintaincontrol of prosecutions. In order tomaintain equilibrium, the prosecution
must ascertain whether a particularcriminal case should be proceeded with toprosecution, or whether some otheralternative steps should be taken. The
prosecution at all times should consider thenecessity and effect of a prosecution or nonprosecution.
In the changing society where new typesof crime, such as organized transnational
crimes, large scale economic crimes, money
laundering, etc, are emerging andprevailing, we should think about whether
the prosecution can cope with these newphenomena and, if not, effective tools
should be provided for the prosecution tocope with these new type of offences.
Furthermore, the quality of publicprosecutors is an issue of our discussion.
Whether the high quality of publicprosecutors is maintained or not is theforemost question in order for them to fulfill
their important duties.
This report will discuss and identify
problems faced by the prosecution in thechanging society. It will also propose
solutions to the problems raised.

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
II. INEFFECTIVE AND
INEFFICIENT PROSECUTION
A. General Observations
In practice, there are many causes of
ineffective and inefficient prosecution.
However, all these causes may be grouped
into two main problems namely:(a) Low conviction rate; and(b) O v e r l o a d i n g o f c o u r t s a n dprosecution.
In dealing with the issues of low
conviction rates and the overloading of thecourts, it is inevitable that the publicprosecutor plays a major role in mostjurisdictions. Amongst the participant
countries in this seminar, varying methods
to commence prosecution are adopted.
In countries such as Bangladesh, Hong
Kong, Pakistan, India and Sri Lanka thedecision to prosecute at the lower courts
rests with the police. Meanwhile in allother countries, the decision to prosecuteat lower courts lies with the publicprosecutor. The other main practical issue
in prosecution is the basis of initiation of
criminal prosecution. In practice, publicprosecutors, apart from satisfying that
there is sufficient evidence to prosecute,would also consider the issue of thestandard of evidence for thecommencement of prosecution. In thisregard, countries such as Algeria,
Bangladesh, Japan, China, Colombia,
Pakistan and Republic of Korea require
evidence which is beyond reasonable doubt
as a basis to commence prosecution.
Meanwhile, in Malaysia, Indonesia, Laos,
Peru and Viet Nam there must be 80%
chance for conviction in order to commenceprosecution. Public Prosecutors in Hong
Kong, Mozambique, Nepal and the
Seychelles would commence prosecution if
there exist more than 50% chance to obtainconviction. Lastly, in Brazil and Sri Lanka

prosecution is initiated even if there is lessthan 50% chance for conviction.
B. Low Conviction Rate
One of the measurements of theeffectiveness and efficiency of any
prosecution system is the conviction rate.
If the prosecution system of any country
produces too low a rate of conviction it could
be seen as a symptom of a serious problem
within. It must be stressed at the outsetthat low conviction rates per se might not
be the only objective of prosecution.
However, since this report is mainlyinterested in the quality of prosecution,then naturally the rate of conviction should
be considered as one of the measurementsof the quality of prosecution. In this regard,in some countries the prosecution isconducted by either the police or theprosecution under the direction and controlof the Attorney General/Prosecutor
General. The conduct of prosecution byboth these arms of the criminal justicesystem depends upon the nature of theoffence, and the jurisdiction within which
the case would be tried. In countries like
Japan and the Republic of Korea, allprosecutions, irrespective of thejurisdiction of the courts and the nature of
the offence, are prosecuted by the publicprosecutors. However, in countries like
India, Sri Lanka, Hong Kong, andBangladesh, cases at the lower courts,
which carries lighter punishment of
imprisonment, are conducted by the police
prosecutors. In this regard the police
prosecutors are under the directsupervision of the Superintendent of Policeor the senior police officer of each district.
As such, the public prosecutor does not playa major role in the conduct and directionof prosecutions in these jurisdictions.
Meanwhile, in Hong Kong, the prosecution
is conducted by lay prosecutors.
For the purpose of this report, a survey
was conducted among the participants of433

RESOURCE MATERIAL SERIES No. 55
each country as to their respective
conviction rates in recent years. Countries
such as Japan (99.9%), China, Republic ofKorea (99.6%), Indonesia, Malaysia andVietnam obtained a conviction rate of above
80%. Meanwhile, India (77.6%), Thailand,
Nepal, Peru (65%) and Pakistan obtained
a conviction rate of between 80% and 40%.
Bangladesh, Laos and Sri Lanka obtained
a conviction rate below 40%, and in somecountries, the conviction rate is becoming
lower. It is to be noted that these are therates of conviction upon completion of
trials. As such, the rate of percentage as
above does not include cases concluded
with a conviction summarily or upon a pleaof guilt.

criminal justice system, i.e. the police andthe prosecution. The result of the low rateof conviction reflects unwarranted
prosecution; a waste of judicial time andmoney; unnecessary expense incurred by
the defendant or accused in preparing fortrial; the mental agony suffered by theaccused; possibility that the wrong person
was charged or indicted; possibility that thetrue culprit of the offence was not brought
to justice; ineffective investigation;ineffective prosecution; and that justicewas not attained for the benefit of thevictim. As such, in any criminal justicesystem, the prosecution, in order to beeffective and efficient, should strive toattain a high rate of conviction.

It is evident that countries attaining low
rates of conviction would face serious
difficulty in the changing society. In
countries where there is a low conviction
rate, the problems are manifold. There arequestions on the integrity of theprosecution, the cost of maintaining theIII. LOW CONVICTION RATE:COUNTERMEASURES
A. Screening
The participants in general propose
screening as a method to solve the problems
stated above. For the purposes of thisDiagram 1

434

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
report, screening is defined as a process
where available evidence in the cases isevaluated from the viewpoint of whether
there is a reasonable chance of conviction;
if not, the case is dropped (before filingcharges) or withdrawn during trial. The
application of a screening process is further
shown as in diagram1 (below).
The process of screening is applied only
where there is the insufficient evidence toprosecute. Screening can be done before
indictictment or charge, or even during
trial but before the court delivers its
judgment. It has come to light thatscreening is done by the public prosecutor
in all participant countries except
Bangladesh, Pakistan and Sri Lanka.
However in Bangladesh, Colombia,
Mozambique, Nepal, Peru, Sri Lanka andThailand, screening is done by theinquiring magistrate.
It must be noted that even thoughscreening is done in most countries in one
way or another, there still exists a low
conviction rate in most countries such as
Thailand, Mozambique, Pakistan, Nepal,
Peru, Bangladesh, Laos and Sri Lanka.
The inevitable conclusion is that there are
weaknesses in the screening process.
The participant from India expressed an
opinion that dropping too many cases byscreening does not realize justice, even if
the conviction rate becomes higher. In his
view, the charges should be sheeted for the
maximum cases, and conviction should beobtained for the maximum cases. It wasalso stated that the percentage of cases
charged, and the conviction rate, shouldboth be the criteria to ascertain theefficiency of prosecution. However, ingeneral, the participant’s of this seminaracknowledge the importance of screening
as a solution for low conviction rates. In
general they agreed on the need forscreening, for the following reasons,namely:(a) as a tool to overcome the existing
problem of low conviction rates;(b) as a tool to avoid unwarranted
prosecution in the courts;(c) to ensure that society’s trust in thecriminal justice system is notdiminished by acquittals; and(d) to ensure convictions.
B. Practical Approach to Screening
Screening, being acknowledged as asolution, is not sufficient. There is a needfor a practical approach to screening. The
participant from Indonesia informed thisseminar that in Indonesia, the publicprosecutor, upon receiving the dossier orinvestigation paper from the police, has tofill out two types of checklists, namely;(a) formal- dealing with the Criminal
Procedure Code ; and(b) material- dealing with the Penal
Code.
It was informed that upon completingthe said checklist, the public prosecutor
must ensure that there is 90% sufficientevidence before prosecution can beinitiated. It was also to be noted that the
public prosecutor, in screening, should
study the following factors:(a) statement of the relevant witnesses.
(b) age of the witnesses.
(c) the need for corroboration (if any).
(d) the requirement of the evidentiary
rule for admissibility.
(e) existence of the relevant exhibits
recovered by the police.
(f) a l l i n v e s t i g a t i o n s h a v e b e e ncompleted by the investigation officer.
(g) the value to be attached to each pieceof evidence.
(h) the value of the confession orstatement of the suspect (whereapplicable) ; and435

RESOURCE MATERIAL SERIES No. 55(i) whether investigation has been
conducted towards the possible
defence of the suspect.
The above list is not exhaustive.
C. Safeguards of Screening
The participants agree that there must
be a method to avoid abuse of the screening
process. In dealing with the safeguards, itis accepted that the superior officers in the
Public Prosecutors Office can play a role
as a safety valve to ensure non-abuse.
An independent review body of thescreening process, such as the Committee
for the Inquest of Prosecution in Japan, canalso be a safeguard. The Committee, on
receiving a complaint from the victim about
the decision of prosecution, reviews thecase and if necessary, recommends
prosecution to the Public Prosecutors
Office. Further, in Japan, where offences
are committed by public officials, if notprosecuted, the victims have otherrecourse. The victim can complain to thecourt. The court, based upon the complaint,
would ascertain whether there is sufficientevidence for trial. Apart from this recourse,
the victim can also lodge a complaint at theHigh Public Prosecutors Office. Possible
abuse may also be dealt with by usage ofprivate prosecutions as is currently being
used in many countries.
D. Advice to Investigators
It is acknowledged that in the majorityof the participant countries, the mannerand method of investigation rests solely inthe domain of the police. The police officers
are trained and possess sufficientknowledge as regards how to investigate.
However, it cannot be disputed that laws
constantly change, especially certain
special legislation or the law of evidence.
The problem arises that despite
investigation, the task is to adduce theinvestigated evidence without

436

infringement of the law of evidence. The
public prosecutor is in a position to knowwhat is lacking or necessary, based on thesituation of the trial court and what is
admissible as evidence in the court. In such
regard, the necessity arises where thepublic prosecutors might have to advise theinvestigator of the need for further
investigation.
It has been acknowledged byparticipants from India, the Seychelles,
Japan, Republic of Korea, Thailand andHong Kong that advice from publicprosecutors is needed and appreciated by
the police. However, it was cautioned thatsuch advice should not be in a manner
which would be construed as direction or
instruction. The feeling amongst theparticipant countries is that the police andpublic prosecutors should work hand inhand and show a high degree ofcooperation. The aim of both these bodies
is to combat crime. However, the feelings
and office of one another should be
respected.
E. Admissibility of Confessions
Confession is important for the following
purposes:(a) to overcome the low conviction rate;(b) to reduce unnecessary prosecution in
the courts; and(c) to know the possible defence, or thesuspect’s version, which would assistin screening.
In Algeria, Bangladesh, Colombia, Peru,
India, Indonesia, Pakistan and Sri Lankaconfession or statement given by thesuspect or accused is not admissible if it
was made to a police officer. However, in
all other participant countries, a confession
or statement is admissible even if made topolice officer, provided certain conditions
are met. The prosecution must prove thatthe confession or statement was made

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
without any inducement, threat or promise,
as a condition for admissibility.
In Algeria, Colombia and Peru, a
confession or statement is only admissible
if it is made before a public prosecutor. In
the Republic of Korea, in order to ensure
admissibility of the confession, it must havebeen made to the prosecutor and must havebeen made voluntarily. In the Republic ofKorea, confessions may also be made to thepolice. However, such a confession is only
admissible if the accused admits to thecontents of the said confession.
In India and Bangladesh, a confession
or statement is only admissible if it wasmade before a magistrate. However, in
Malaysia, Thailand and Hong Kong, aconfession or statement is admissible if it
was made before a police officer, provided
it was voluntary. Meanwhile, in Pakistan
and Sri Lanka, a confession made to apolice officer above the rank of Deputy
Superintendent is admissible only in casesof terrorism.
Most participants were concerned withthe use of force by police officers in somecountries, and this is the first and foremost
problem to be solved before the confession
is made admissible. As a safeguerd toensure voluntariness of a confession orstatement, certain measures can be put inplace. For instance, in Hong Kong, video
recording is done while the confession orstatement is being made. In othercountries, members of the public arepresent when the confessions are being
recorded.
However, the particimants in generalagreed that legislation should be amended
so that a confession or statement can bemade to a police officer above the rank ofInspector. However, as a safety measure,
such a confession should only be madeadmissible if it is proved at the trial to havebeen made voluntarily. It is generally
accepted that admissibility of a confession
or statement of the suspect or accused
would be a tool to overcome the problem of
low conviction rates. All participant
countries agreed that it would be good toallow for admissibility of a confession orstatement, so long as it was madevoluntarily.
F. Securing Appearance Before the
Court and Testimony of Witnesses
One of the main causes for the low
conviction rate and overloading of thecourts and prosecutors is the problem of
witnesses. In most countries, the courts
have to postpone trials due to theunavailability of witnesses, thus causing
delays. In other countries, courts acquit
the accused persons since the witnesses are
missing and cannot be found, in order toprove the charge.
In all participant countries, except
Mozambique, there seems to be a problem
in securing witnesses for trial. Amongst
the reasons are:(a) witnesses refuse to attend trial to
avoid enmity.
(b) no protection for witnesses who
testify.
(c) no allowances or transportation costs
paid to witnesses.
(d) f r e q u e n t a d j o u r n m e n t s c a u s ewitnesses to lose interest in trials.
(e) hesitation to testify in front of theaccused.
(f) witnesses don’t understand the ruleof law.
(g) mobility of witnesses and difficulty in
tracing them.
(h) witnesses regard testifying as a wasteof time; and(i) no trust in the police and unfriendly
environment of the court.
Due to the reasons mentioned above,
there is a need to educate society about the437

RESOURCE MATERIAL SERIES No. 55
legal system. Futher, in most countries
except Brazil, Colombia, Hong Kong, Laos,
Nepal, Pakistan, Republic of Korea andViet Nam, there does not exist a witness
protection program. A witness protection
program would enable the State to place
the witness in a safe house and this would
ensure that the witness is present in courtin order to testify. In Colombia, the witness
protection program is very effective and theState plays a major role to ensure that thewitness is equally safe after testifying. In
countries where there is no witness
protection program, such as Algeria,
Bangladesh, Japan, China, Indonesia,
Mozambique, Peru, Sri Lanka andThailand, they support the creation of suchprograms in their jurisdiction. However,the participants from Malaysia and the
Seychelles find that the need does not arise
for the creation of witness protection
programs in their country.
G. Immunity
The provision of immunity would be
useful to ensure an increase in theconviction rate. In crimes involving two or
more persons, the prosecution may provide
immunity against prosecution for theaccomplice. In the United States ofAmerica, immunity is being accorded to coaccuseds where there is no independent
witness, in order to obtain conviction. In
the United States, immunity is being given
formally and informally. Formal immunity
must obtain the sanction of the Attorney
General. However, this is a long and time
consuming process. On the other hand, theprosecutors in the United States also apply
informal immunity whereby the sanctionof the Attorney General is not required.
Once the prospective witness is prepared
and willing to reveal the truth as a witness,a formal document is executed.
In Sri Lanka, a similar system is used
and known as a conditional pardon. Thisis only done with the sanction of the438

Attorney General. However, a person isconditionally pardoned on the condition
that s/he testifies against the co-accused.
It is to be noted that this is only used invery rare cases involving heinous crimes.
In Pakistan, the principle of immunity isequally applied, but it is known as an
approver system. Meanwhile in Hong
Kong, immunity is given to the co-accused
depending on whether the co-accused’s
prospective evidence is worthy of credit.
However, it is only done if there is sufficientcorroborative evidence. On the other hand,in Malaysia and Hong Kong, the principlesof this system are used but the publicprosecutors would prefer the co-accused toplead guilty and later be used as a witness.
In Thailand, there is no specific law asregards immunity, but in practice theprosecution applies the immunity
principle. However, it is hoped that usageof an immunity system and witness
protection program would ensure that the
problem of low conviction rates could be
solved.
IV. OVERLOADING OF COURTS
AND PROSECUTORSIt has been noticed that in somejurisdictions there is a principle ofmandatory or compulsory prosecution.
This is a situation where as long as there
is sufficient evidence, the publicprosecutors should or are compelled to
institute criminal proceeding without any
discretion. On the other hand, there aresome countries such as Thailand,
Indonesia, Malaysia and Peru, which allow
the public prosecutor discretionary powersof non-prosecution of certain categories ofcases. However, this discretionary power
is not exercised as a rule but rather as an
exception.
Apart from these two categories, there
are some countries which allow for
discretionary prosecution such as in Japan

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
and the Republic of Korea. Even though
this discretionary power is exercised, it isdone with stringent conditions and counterchecks, so as not to be abused.
Against the background of theabovementioned prosecutorial system,
there exist a severe problem of overloadingof the courts and the prosecutors with
m i n o r, p e t t y a n d u n w a r r a n t e dprosecutions. Where prosecutions are
instituted without exercising discretionary
powers, inevitably the result would beoverloading of the courts. When the courts
are overloaded with criminal cases, theconsequential effect would be delayed
trials. This would lead to unhappy victims
who would further suffer the agony ofwaiting for justice to be meted out. It is ofutmost importance that the publicprosecutor should, at all times, ensure thatthe interest of society or the public, forwhom s/he acts, is their main priority.
V. OVERLOADING:
COUNTERMEASURES
A. Alternative Measures
In the changing society it isacknowledged that the criminal justicesystem needs some overhaul. Most of thecases in our courts, at the present time,
which end up with fines could be disposedof in a much speedier manner. As such,
this could reduce the biggest problem ofoverloading of the courts and prosecutors.
In this regard, we propose two solutions
namely;(a) Summary procedure; and(b) Administrative measures.
1. Summary Procedure
At present, this mode is being practiced
in the Republic of Korea and Japan. Whenthe public prosecutor examines the dossier
or investigation paper, s/he would be able
to form an opinion as to whether such an

offence is suitable to be dealt with by fineor formal trial. When the prosecutor forms
the opinion that the criminal case could be
disposed of with a fine, then the proceeding
is conducted as a summary procedure. In
cases where summary procedure isfollowed, the documents involving the caseare sent to the judge. The judge examines
the documents and issues an order to theaccused or the defendant as to the amountof fine imposed. If the accused or defendant
is not satisfied with the fine imposed, theaccused may request a formal trial; only
then is a formal trial held. In the Republicof Korea, a total of more than 1 million
cases are registered, out of which 85% aredisposed of by the courts through summary
procedure. This percentage reflects thatabout 900,000 cases are dealt withsummarily. As such, the adoption ofsummary procedures can and does, to agreat extent, reduce the overloading of thecourts and prosecutors.
2. Administrative Measures
In Japan for instance, about 2.1 million
cases involve offences of traffic violations.
These offences are: driving beyond the
speed limit, marginal overloading of trucks
and cars, and other minor traffic violations.
Such cases are disposed of with offenders
being allowed to pay an administrative
fine. If such an administrative fine is paid,
then the matter ends. However, where theadministrative fine is not paid within the
stipulated time, or without reasonablecause, the matter is then taken up as acriminal case to the court. Such a system
is also being used in Malaysia, India,
Indonesia and Sri Lanka.
B. Plea Bargaining
Plea bargaining is an effective method
to obtain conviction rather than acquittal.
In this system, counsel for the accused
would correspond with the publicprosecutor for the charge to be reduced on
certain cogent grounds, such as the439

RESOURCE MATERIAL SERIES No. 55
problem of adducing evidence and theexistence of strong mitigating factors.
Upon examination of the written request,
and studying the investigation paper, thepublic prosecutor might agree to reduce thecharge or alternatively withdraw somecharges and merely proceed on one charge,
on the condition that the accused pleads
guilty. This process contributes in reducing
the problem of overloading and to ensurethat justice is done. This process is being
applied, for example, in Malaysia, theUnited States, the Seychelles and Sri
Lanka. However in Malaysia and theUnited States, plea bargaining is done
between the prosecution and the defence,
without any role of the judge, so as not toprejudice the mind of the court insentencing. On the other hand in Sri
Lanka, plea bargaining is conducted
between the prosecution and the defence,
however they must obtain the approval of
the judge. It must be admitted that only asmall number of cases are disposed ofthrough plea bargaining. However, there
is room for prosecutors and defence
counsel’s to utilise plea bargaining for theinterest of justice to all. In dealing withthis issue, participants did not raise
objection to the usage of plea bargaining.
C. Discretionary Suspension
Discretionary suspension is being
practiced in Japan and the Republic ofKorea. Discretionary suspension is appliedin cases where there is sufficient evidence,
however the prosecutor might prefer not
to charge a suspect (please refer to diagram1). In the application of this system,
despite sufficient evidence for conviction,a charge is not preferred or instituted
against the suspect when considering thefollowing instances:(a) minor offence/less serious crime;(b) first offender;(c) age- whether young or old;(d) little criminal tendency of thesuspect;

440(e) restitution has been made to thevictim;(f) the suspect has repented; and(g) contributive factor of victim, eg.
provocation.
This system has proven to be useful tocorrect criminals, to protect society, toreduce overloading of the courts and also
to prevent overloading of the prisons.
However, if the same suspect commits
another crime then, as in Japan, s/he would
face prosecution for the offence which s/he
was not prosecuted for before. The same
system is also being practiced in Hong
Kong in relation only to juvenile offenders,
as compared to Japan and the Republic ofKorea, where it is being applied for adultoffenders. In the Republic of Korea, about
10% of the total number of cases end up
with suspended prosecution, whichamounts to about 199,000 cases.
Meanwhile in Japan, about 30% of cases
are classified as suspended prosecution. In
Hong Kong, about 35% of the total numberof juvenile offenders are not prosecuted
under this system, and rehabilitation ofjuvenile offenders is done through theSuperintendent Discretion Scheme. As asafeguard against possible abuse, thevictims can lodge an appeal with the High
Public Prosecutors Office or the High Courtor the Constitutional Court against thedecision of the public prosecutor, as in the
Republic of Korea. In Japan, theCommittee for the Inquest of Prosecution
in Japan acts as a safeguard. The
Committee, on receiving a complaint fromthe victim about the decision of nonprosecution, reviews the case and, if
necessary, recommends prosecution to the
Public Prosecutors Office.
D. Discretionary Withdrawal
Discretionary withdrawal is an instance
where there exists sufficient evidence forprosecution and the accused is indicted or
charged for an offence. However, between

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
the indictment period and the judgment orsentence, the charge is withdrawn by theprosecution in the exercise of its
discretionary power. The application of
discretionary withdrawal is shown indiagram 1.
However, participants from Brazil, Sri
Lanka and Hong Kong raised muchreservation about the usage of
discretionary suspension and withdrawal,
on the grounds that it would lead to
impunity and corruption. The participantfrom Hong Kong feels that all adultoffenders must be punished and that theprosecution must uphold justice.
Meanwhile, the participant from Sri Lanka
stated that the public would lose confidence
in the criminal justice system if this
proposal is applied.
On the other hand, the participant fromIndonesia suggested this proposal is very
useful to avoid overloading of the courts.
However, he suggested that there must
exist some form of countermeasure in order
to avoid abuse, this was eventually
supported by the participants from Hong
Kong and Malaysia. However, it is agreed
that there might exist some form of
probable abuse, but countermeasureswould help the application of this system.
Victims of crime may lodge an appeal with
the Attorney General or the Public
Complaints Bureau, as in Malaysia.
The main aim of this system is to prevent
overloading of the courts and to correct firsttime offenders. This system has been
proven to be successful in the Republic ofKorea and Japan. Currently, all countries
except Algeria, Bangladesh, Brazil, China,
Indonesia and Mozambique apply
discretionary withdrawal. Meanwhile, as
regards discretionary suspension, it is only
being used in Japan, the Republic of Korea,
the Seychelles, Viet Nam and Hong Kong
(only for juvenile cases).

VI. LACK OF EFFECTIVE
COUNTERMEASURES AGAINSTNEWLY EMERGING OR
PREVAILING CRIMES IN THE
CHANGING SOCIETY
In most countries, the current laws wereenacted between the 1880’s and 1970’s. The
society then and now has changed. Thus
the types of crime has changed, together
with the changing society. As we approachthe 21st century, newly emerging crimes
are seen to be prevalent. In some countries,
with the opening of multi-media supercorridors related to high technology, there
emerge new crimes relating to computers.
Sadly, the criminal justice system cannot
keep pace with the newly emerging andprevailing crimes. The members involved
with the criminal justice system are notequipped either technologically or withknowledge as to how to combat theseemerging crimes. Society now sees itself
facing crimes such as organized crime,
economic crime and computer crime.
A. Organized Crime
As the name speaks for itself, this typeof crime is organized in nature. Various
types of crimes are committed by membersof an organized group. These crimes range
from theft, robbery, kidnapping to murder.
The members of these organizations use
violence and collect protection money frombusinesses. In Japan, these organizedgroups are known as ‘boryokudan’. In othercountries, there are various triad groups
carrying out criminal activities with theirown trademarks.
In Japan for instance, the Japanese
government, realizing this growing
problem, enacted the Anti-boryokudan Law
in 1991, aimed at combatting crimes
committed by these organized criminalgroups. The main objective of this law is
to maintain peace and order within society.
The mere fact of such a specific law being

441

RESOURCE MATERIAL SERIES No. 55
enacted clearly shows the seriousness of
this crime. In Colombia, these organizedgroups of criminals involve themselveswith crimes relating to drugs, kidnappingand murder. Realizing the seriousness ofthese crimes, the Attorney General ofColombia has set up a group of special
officers to investigate offences such as
drugs, kidnapping and murder involvingorganized groups. There have been
instances where public prosecutors have
had to flee Colombia due to threats by theseorganized groups.
The characteristics of these organizedgroups impede proper and thoroughinvestigation. It would be difficult forinvestigators to obtain detailed information
about these groups. The members oforganized crime are always bound bys e c r e c y. T h i s i s u s u a l l y d o n e b yboryokudan members by cutting off theirfingers to show alligence to the said group.
More often than not, the activities of theorganized groups are only within their own
knowledge. Therefore, it is important tocombat this type of crime in new way.
B. Economic Crime
Economic crime has exisred for a longtime in many jurisdictions. However, themanner and seriousness of this crime in
the past years have been different
compared to the 1980’s. Thus since the1980’s, the authorities noticed newcomplexity in investigation this type ofcrime. Economic crimes range fromdeception to fraud, forgery, using false
document as genuine, and criminal
misappropriation of property. As regards
Hong Kong, in 1990 there was a total ofreported cases of deception, business fraud
and forgery amounting to 2,017 cases; 637
cases of fraud and 448 cases of counterfeit/
forgery. The total amount involved (in1990) was HK$348 million. However in
1997, the total reported cases of deception,business fraud and forgery was 3,240 cases.

442

Meanwhile, 313 cases of fraud and a totalof 668 cases of counterfeit and forgery werereported to the Commercial Crime Bureau.
The total amount involved was HK$1,165
million. This clearly shows the growing
trend of these cases. However, thecomplicated nature of these offences andthe voluminous documents involved,
causes great problems not only toinvestigators, but also to public prosecutors
and judges. Apart from this, economic
crimes are committed internationally andinvolve different jurisdictions. Thus, legal
issues arise, namely, jurisdiction, which
law is to be applied etc. Therefore asolution needs to be found for these issues.
C. Computer Crime
Crime involving the usage of computers
has been a recent problem not only forinvestigators, but also prosecutors. The
invention of the computer in the early days
was merely as a word processor. However
in recent years, every home in mostcountries has not only a computer, but also
the Internet. Most countries are expanding
the usage of computers into Internet andE-commerce. Society can use the computerfor business transactions between one partof world and another. Electronic money
and goods can be transferred from one
jurisdiction to another within seconds,
leaving no trace to track. Further, there
are no documents being used in thesetransactions. In recent years, somecountries such as Hong Kong have beenplanning for the implementation ofbanking, purchase of goods and related
activities through the computer.
H o w e v e r, p r o b l e m s w i l l a r i s e i fcomputers are not used for the correct
purpose. In the changing society there isbound to exist some who will misusecomputers, such as by hacking, Internet
gambling and publishing obscene articles.
In Hong Kong, there were only 4 reported
cases relating to computer crimes in 1993.

111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
However in 1998, this figure rose to 32
cases. Meanwhile, the total value of loss
in 1993 was HK$600,000 and in 1998 it hadrisen to HK$2 million. Even though thenumber of cases in 1998 is not big in termsof figures, it clearly shows a large increase
from the 4 cases in 1993 to the 32 cases in
1998. As such, time is ripe for countries toaddress this issue and find practicalsolutions to overcome and curb this crime.
D. Special Legislation
As regards organized crime, there is aneed for the enactment of special
legislation. This special legislation should
enact provisions for the criminalization oforganized crime groups and theirmembership.
In Japan, the Anti Boryokudan Act has
been legislated to combat and suppress
criminal organizations known as‘Boryokudans’. This Act designates certain
groups as mobster groups or boryokudan.
A special procedure has been devised forhearings to be conducted by the police inorder to inform the group that such a grouphas been designated as an organized group.
The police, by using this Act, can regulatethese organizations by giving them a time
period of three months and a further
extension of one month. This Act forbids
the groups from expanding and theimposition of tattooing among juveniles.
The police are permitted to issue asuspension order. This suspension orderwould, in effect, order the groups to stop
its activities. If such order is ignored, thenthe police may issue a re-occurance order,
failing which the criminal justice system
would be activated and the group or
members would be detected. In Tokyo,
between January and November 1998, thepolice issued 268 suspension orders, 7 reoccurance orders and 1 case of detection.
In other jurisdictions, such as Malaysia,
legislation has been used to prevent

organized criminal groups frommushrooming. The Emergency (Public
Order and Prevention of Crime) Ordinance1969 was enacted for suppression ofviolence or prevention of crimes involving
violence. This law provides for themembers of organized crime to be detained
for a period not exceeding two years.
However, such detained persons may makerepresentations for a review of detention
by the Advisory Board. The members of
the Advisory Board are appointed by His
Majesty, the King. As far as Malaysia isconcerned, the enactment of this legislation
has proven to be successful in curbing not
only the spread of organized crime, but also
the activities of its members.
In some jurisdictions such, as Colombia,
laws have been legislated providing severe
punishments for criminal activities
conducted by organized criminal groups
and their members. The Penal Code has
been amended for increased imprisonment
from 25 to 40 years for the offence ofkidnapping. Meanwhile, the same applies
in cases of homicide involving organizedgroups and their members. It is hoped thatlegislation, such as in Japan, Malaysia andColombia, would be effective in curbing theactivities of organized criminal groups andthe members thereof.
E. Anti-Money Laundering
Legislation
Anti-money laundering legislation isfound to be an effective tool in fighting
against organized and economic crime.
This type of legislation has been enacted
in Hong Kong. However in Japan,
Malaysia, the Seychelles, Pakistan and
Thailand, such legislation has been enacted
to seize ill-gotten proceeds of criminal
activities connected to drugs. Suchlegislation proposes to seize all ill-gotten
proceeds and property acquired by persons
involved with certain crime, as envisagedby the specific legislation. In Hong Kong,

443

RESOURCE MATERIAL SERIES No. 55
the Organized Serious Crime Ordinanceprovides the mechanism for investigating
and seizing all ill-gotten proceeds ofcriminal activities. This Ordinance plays
the role of anti-money laundering
legislation. The said law in Hong Kongprescribes a transaction reporting system,
where the banks are duty bound to reporttransactions. Such a system would alert
the authorities and thereby cause an
immediate response.
However, this legislation would not beof much assistance without mutual
assistance from other countries. In
practice, a criminal organization would
operate its criminal activities in one
country and transfer the proceeds thereof
to another country, or even in some cases,
acquire property in a third country. In suchcases it involves the question ofjurisdictional and national sovereignty of
the individual country. Therefore,
countries should enact legislation formutual legal assistance such as in Hong
Kong and Thailand. In Hong Kong, such
legislation has been enacted in 1998 toenable authorities in Hong Kong to makeand respond to requests to and from otherjurisdictions in relation to criminal
matters. However, such provisions havebeen enacted in Malaysian law only as
regards drug-related offences. The mutual
legal assistance ranges from the taking ofevidence, search and seizure, confiscationof the proceeds of crime and transfer ofsuspects.
The time is ripe for all countries tonegotiate and enact provisions such as antimoney laundering legislation and for theprovision of mutual legal assistance,
bearing in mind the primary goal of theprevention of crime.
F. Confiscation of Illicit Proceeds
Provision for confiscation of illicit
proceeds would be applicable for offences444

related to organized and economic crime.
Many jurisdictions such as Japan,
Malaysia, Pakistan, the Seychelles andThailand have already enacted provisions
within their laws in relation to theconfiscation of illicit proceeds connectedwith drug-related crime. However, suchprovisions should be extended to a
multitude of crimes committed byorganized groups.
Laws should make it possible for all illgotten proceeds of crime to be confiscatedor forfeited. This is to ensure that criminals
should not be able to enjoy the fruits of theircrime after being punished by way of
imprisonment. However, the only problem
faced by countries is the difficulty inproving the hidden assets. Anotherhindrance is the banking secrecy laws inmany countries. Participants from
Malaysia, Thailand and the Seychelles
argued that banking secrecy should not be
invoked during forfeiture proceedings by
the authorities. These jurisdictions havelegislated for the non-applicability ofbanking secrecy laws for forfeitureproceedings involving ill-gotten proceedsfrom criminal activities.
G. Presumption Against the
Accused: Shift of the Burden of
Proof
Offences in relation to organized crime,
such as the trafficking of drugs andeconomic crime such as deception andcorruption, are difficult to prove. In many
jurisdictions, the relevant laws require theprosecution to prove the mental element
or mens rea. This causes many problems
for the prosecution in proving the mental
element. In the commission of crimes suchas the trafficking of dangerous drugs,
deception and corruption, only theoffenders would be able to reveal themental element. As such, the need arosein certain jurisdictions like Malaysia, Viet
Nam and Bangladesh for enacting the111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
provision of presumption. For instance, foroffences such as trafficking in dangerous
drugs, in Malaysia the prosecution would
have to prove:(i) it was a dangerous drug; and(ii) the accused was in custody thereof,
as well as the weight of the drug.
Automatically, the law presumes thatthe accused was trafficking the said drug.
It would be incumbent upon the accusedto rebut the said presumption on thebalance of probabilities. Similarly,
provisions for shifting of the burden of proof
can be applied to offences relating toorganized crime and economic crime. Thus,
this would assist the prosecution in
obtaining convictions. Provisions likeshifting of the burden of proof can also be
useful for proceedings involving forfeiture.
Such provisions are being applied in the
Malaysian Dangerous Drugs (Forfeiture of
Property) Act 1988. Participants generally
agreed that such provisions be incorporated
in existing legislation, as this would enable
them to combat this problem.
H. Admissibility of Evidence
Gathered by Electronic
Surveillance
It is to be noted that in many countries,
surveillance is being used by theinvestigative agencies. However, in somecountries it is not being utilized due toconstitutional constraints. There are somecountries where electronic surveillance isbeing done in a discreet manner. In suchjurisdictions, any evidence obtained
through electronic surveillance is notproduced in court as evidence in the eventthat the suspect is indicated or charged.
Meanwhile in some countries, electronic
surveillance is provided for in certain
specific legislation.
Electronic surveillance can take the formof telephone tapping, bugging and also

other visual aids. The need for electronic
surveillance arises because of thecomplexity and secrecy in the commissionof such crimes. In countries such as
Malaysia, Brazil, the Seychelles andMozambique, electronic surveillance isallowed. However, in the Seychelles andBrazil evidence of electronic surveillanceis only allowed with the permission of thejudge. Meanwhile in Malaysia, electronic
surveillance is only allowed with theapproval of the public prosecutor.
Nevertheless, the underlying reason forsuch usage is to fight against crime. In
this regard, countries should balance theright of the particular individual as against
the right of the society. Even though laws
might allow for electronic surveillance, weshould also address our mind as to whether
such evidence can be admitted by virtue ofthe relevant evidence laws. For instance,
when telephone tapping is done, more often
than not such conversations would betapped. The practical problems for theprosecutor is to ensure that such evidence
would be ruled admissible in a trial. As
such, question arises as to whether such atape could be construed as a document. In
this aspect, the definition as provided forin the respective evidence laws must be
looked into. Therefore, where the needarises, all penal and evidentiary laws mustbe amended accordingly to keep abreast
with the complexity of crime.
I. Admissibility of Evidence
Gatherd by UndercoverOperations
In dealing with crime committed byorganized groups in particular, it is very
difficult to obtain inside information orevidence of such movements. As such, theauthorities would need to conduct
undercover operations or use agent
provocateurs. When such operations inapprehending the criminals are successful,the next problem would be for successfulprosecution. In the majority of cases, the445

RESOURCE MATERIAL SERIES No. 55
prosecution is faced with the task ofproving its case beyond reasonable doubt.
In dealing with this issue, the courts either:(i) refuse to admit evidence of agent
provocateurs on the grounds that it
was illegally obtained evidence; or(ii) require corroboration or independent
evidence to support the evidence of
the agent provocateur.
In dealing with the first problem of
inadmissibility, the legal position in the
United States and the commonwealthjurisdictions were the same until thedecision of the Privy Council in R v
Kuruma. This landmark decision allowed
for illegally obtained evidence to be
admitted. In recent years, the courts in
the United States are moving closer to the
Privy Council decision. As regards thesecond problem, the need for corroboration,some jurisdictions such as Malaysia andSingapore have enacted specific provisions
in some legislation, such as corruption
laws, doing away with the need forcorroborative evidence.
If countries fail to enact specific laws as
regards the admissibility of evidence, there
would arise a situation of unfairness in thecriminal justice system. This is mainly
because the authorities might apprehend
criminals who would either not be
prosecuted or, if prosecuted, they would beacquitted by the courts. As such, laws must
be enacted that keep abreast with thenature of the crime being committed.
VII. LOW QUALITY OF
PROSECUTORS
In many jurisdictions, prosecutors areeither the police or public prosecutors. In
such situations where the prosecutors arefrom the police, they are known as police
prosecutors. Police prosecutors in general
do not possess legal qualifications. In some446

cases, even if they possess legal
qualification, this is not reflected in theirwork. This can also be the same with somepublic prosecutors. In some jurisdictions,public prosecutors are appointed amongst
fresh law graduates. The problem of low
quality of prosecutor leads to the main
problem of low rates of conviction. This
problem leads to other consequential
problems such as:(i) i n s u f f i c i e n t s c r e e n i n g b e f o r ecommencement of prosecution;(ii) not knowing how to draft a propercharge or indictment;(iii)insufficient preparation for a criminal
prosecution ; and(iv)ultimately not being independent but
being controlled by the police.
It is to be noted that the issue of the low
quality of prosecutors is serious. If thisproblem is left unchecked, it would
inevitably cause other issues namely :(i) s o c i e t y w o u l d l o s e f a i t h i nprosecutors;(ii) the dignity of prosecutors would bequestioned;(iii)time, money and hard work of theinvestigators would be wasted;(iv)would result in a lot of acquittals;(v) actual criminals would be out insociety; and(vi) failure to obtain justice for thevictim.
Realizing the seriousness of thisproblem, we propose the following.
A. Recruitment
Countries should formulate atransparent system of recruitment. This
is to ensure that fit and proper individuals
are appointed as prosecutors. Apart fromthe system of recruitment, persons of highcalibre should be appointed as prosecutors.
Further, countries should stop the practice111TH INTERNATIONAL SEMINARREPORTS OF THE SEMINAR
of recruiting fresh law graduates asprosecutors but require further specifictraining, as being practiced in Peru.

legislators and policy makers.

B. Training
Relevant authorities should establish
legal and/or judicial training institutes
such as in Japan, the Republic of Korea,
Malaysia, Indonesia and Peru for providing
courses during the employment of suchprosecutors. This would enable theprosecutors to keep abreast of the changes
in law, as well as to learn and understandnewly emerging crimes.
C. Increase in Salary and Benefits
The most important solution is toincrease salaries and to provide otherbenefits to prosecutors. This would surely
motivate qualified people to join theprosecution service. This is important inorder to recruit the best people to join theservice. It must be realized that mostlegally qualified persons would rather
venture into private legal practice, whichbrings higher remuneration. Prosecutors
should also be provided with benefits suchas interest free loans for housing, medical
services and so on. This would ensure
quality prosecutors for the wellbeing ofsociety.
VIII. CONCLUSION
The main problem at hand, being the low
rate of conviction and overloading of thecourts and prosecutors, must be addressed
immediately. Undivided commitment must
be shown by governments and prosecutors
to ensure that justice is done, and is seen
to be done. Prosecutors should keep
themselves abreast of the constant changes
in law. They must also be sensitive to theneeds of society. Prosecutors should regard
themselves as the custodians of thecriminal justice system. Prosecutors
should initiate changes in outdated laws
and not merely leave it in the hands of447