The Purposes of the Criminal Law

Document Sample
The Purposes of the Criminal Law Powered By Docstoc
					 Enhancing Corporate Governance
Through the Criminal Justice Process


             Ian McWalters, SC
  Senior Assistant Director of Public Prosecutions

                                                     1
“Wrongdoing can only be avoided if
those who are not wronged feel the
same indignation at it as those who
are.”

                                Solon
                           638-558 BC



                                        2
The Purposes of the Criminal Law

(a) to forbid and prevent conduct that
    unjustifiably and inexcusably inflicts
    or threatens substantial harm to
    individuals or public interests;




                                             3
The Purposes of the Criminal Law

(c) to safeguard conduct that is without
    fault from condemnation as criminal;

(d)to give fair warning of the nature of
   the conduct declared to be an
   offence;
                      American Law Institute’s
                            Model Penal Code
                                                 4
“Our criminal law is also a system of
values ... in addition to attaching
negative consequences to undesirable
behaviour, a judicial sentence should
also be imposed in a manner which
positively instils the basic set of
communal values ...”

                         Lamer CJC in R v M
            (1996) 105 CCC (3d) 327 at 369e-f

                                                5
       Options for addressing
    Corporate Governance Issues:
   the creation of civil rights and
    imposition of civil liabilities
   subjecting corporations to regulatory
    regimes;
   applying corporate governance codes
    of best practices; and
   criminalizing specific conduct
                                            6
    The Objects of Punishment
(1) to exact retribution by society on the
    offender;
(2) to denounce the conduct being
    punished;
(3) to protect society from the offender;
(4) to deter others from committing the
    same conduct; and
(5) to rehabilitate the offender

                                             7
         The Essence of
      Corporate Governance
“Corporate governance is the system by
which companies are directed and
controlled.”

                                Sir Adrian Cadbury
           Report on Financial Aspects of Corporate
                Governance in the United Kingdom


                                                      8
         The Broad View of
        Corporate Governance
“In its broadest sense, corporate governance is
concerned with holding the balance between
economic and social goals and between individual
and communal goals. The governance framework
is there to encourage the efficient use of
resources and equally to require accountability
for the stewardship of those resources. The
aim is to align as nearly as possible the interest of
individuals, of corporations and of society.”
                                    Sir Adrian Cadbury
                                                        9
 “Corporate governance is
essentially about leadership:
–   leadership for efficiency;
–   leadership for probity
–   leadership with responsibility;
–   leadership which is transparent and
    accountable. ”
                   Commonwealth Association
                     for Corporate Governance

                                                10
       Corporate Governance
“It is about commitment to values,
about ethical business conduct and about
making a distinction between personal
and corporate funds in the management
of the company.”
                         Report of the Committee on
                        Corporate Governance of the
             Securities and Exchange Board of India

                                                      11
      What is Stewardship?
Stewardship is about providing a value
and ethic based leadership of a
company within a corporate culture of
transparency and accountability.




                                         12
         Standards and
      Corporate Governance
   setting standards
   encouraging adherence to these
    standards
   reviewing the adequacy of these
    standards
   enhancing these standards

                                      13
            Standards and the
         Criminal Justice Process
   the creation of offences - a standard setting
    mechanism
   the enforcement of offences - motivating
    adherence to the standards
   the prosecution of offences - publicizing the
    standards, motivating adherence to them
    and providing an opportunity to review their
    sufficiency
   the punishment of offenders - retribution,
    deterrence and denunciation                     14
         Setting Standards:
Having an Effective Range of Offences
     Review the effectiveness of the
      offences
     Ensure the offences cover the field
     Consider a continuing course of
      conduct offence
     Enact a private sector corruption
      offence
                                            15
             UNCAC
            Preamble

Concerned also about the links
between corruption and other
crime, including money laundering.




                                     16
                      UNCAC
                     Article 21
An offence that:
   is committed intentionally in the course of
    economic financial or commercial activities;
   which covers the promise, offering or giving
    solicitation or acceptance of an undue
    advantage:
      (i) to or by a person working for a private sector
           entity;
      (ii) for that person in order that he, in breach of
           his duties, act or refrain from acting.
                                                            17
Prevention of Bribery Ordinance
           Section 9
The offer, solicitation or acceptance:
   without lawful authority or reasonable
    excuse
   of an advantage

   to or by an agent

   for doing an act in relation to his
    principal’s affairs or business

                                             18
“... we cannot for a moment accept
the suggestion that bribery in the
private sector is to be regarded as
any less culpable than bribery in the
public sector”

                   Hong Kong Court of Appeal
             R v Wong Tat-sang Cr App 529/84

                                               19
“It is the duty of the court to make it
plain to the business community that
when situations such as this arise there is
only one course open to the person to
whom the offer is made – report the
matter to the authorities”.

                     Hong Kong Court of Appeal
            Attorney General v Bow Ki-lun & anor
                            [1995] 2 HKCLR 168


                                                   20
    Misconduct in Public Office
 a public official;
 in the course of or in relation to his
  public office;
 wilfully misconducts himself by act or
  omission for example, by wilfully
  neglecting or failing to perform his
  duty;

                                           21
     Misconduct in Public Office
 without reasonable excuse or justification;
  and
 where such misconduct is serious, not
  trivial, having regard to the
  responsibilities of the office and the
  officeholder, the importance of the public
  objects which they serve and the nature
  and extent of the departure from those
  responsibilities
                                            22
    Misconduct in Private Office?
   applicable only to senior management
   using a criminal offence to raise
    standards of senior management
    conduct rather than to prompt
    adherence to a minimum standard



                                           23
       Enforcement of the Law
   a specialist law enforcement agency
    separate from and independent of
    the rest of government

   special powers for the investigation of
    serious fraud and corruption



                                              24
      Powers of Investigation

   powers against suspects

   powers against witnesses

   powers against confidential record
    holders

                                         25
    The Prosecution of Offenders
   accomplice evidence
   banking records
   business records
   computer records
   expert evidence of forensic accountants
    and bankers and admissibility of reports
    and use of presentational aids
   use of depositions of witnesses who are
    unavailable to attend court
                                               26
The Punishment of Offenders

         retribution

         deterrence

         denunciation


                              27
            Deterrence

“Law cannot persuade where it cannot
punish”

                           Thomas Fuller




                                           28
             Denunciation
A denunciatory sentence represents:
  “a symbolic, collective, statement that the
  offender’s conduct should be punished for
  encroaching on our society’s basic code of
  values as enshrined within our
  substantive criminal law”

                             Lamer CJC in R v M

                                                  29
         The punishment
        must be dissuasive
“Sentences cannot be brought below a
level which will afford some deterrent
against crime and, where substantial
fraud or corruption is concerned,
preserve the integrity of Hong Kong’s
commercial reputation.”
           Attorney General v Shamsuddin [1987]
                        HKLR 826 at page 833G
                                                  30
         Reviewing and Enhancing
                Standards
   the fact that the misconduct took place acts as
    a catalyst to review the standards
   the fact misconduct can’t be punished because
    it is not a crime prompts criminalization
   the existence of flaws in the criminal justice
    process that prevent a just response
    motivates change
   the public nature of the trial process provides
    an opportunity to review standards and laws
                                                  31
Thank You


            32

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:0
posted:4/9/2011
language:English
pages:32