The subject of private prosecution has attracted some media interests recently. Noting that the legal proceedings of some private prosecutions are reportedly taking place, I am mindful of refraining from giving substantive comments but outlining the basic principles concerning private prosecution.
The practice of private prosecution was a common practice in days immemorial before a public body that oversaw public prosecution was set up. This right of an ordinary citizen remains notwithstanding the establishment of public prosecution bodies in modern times. In the past 10 years, the number of private prosecutions brought to the attention of the Department of Justice (DoJ) is limited. The Secretary for Justice had intervened. Yet in recent times some have availed themselves of such right and it is pertinent that the procedures and principles are properly understood to avoid abuse of process, wasting of judicial resources and most importantly jeopardizing the administration of criminal justice.
There are apparently no express rules governing the court procedures applicable to private prosecutions. Some principles are laid down in the Prosecution Code as a guidance but they do not represent the full ambit of the law or the pertaining legal principles. At the moment, based on the cases, a private prosecution is instituted when a complainant submits evidence to the court for consideration on whether or not to issue a summons to the defendant. There are no set procedures on whether a hearing must be convened, whether the DoJ should be notified, allowed to participate as an observer or allowed to make representations. From the practice, it is observed that any oral hearing, if held, will be conducted ex-parte, that is, only the complainant is present.
However, a complainant is generally not entitled to obtain witness statements or other investigatory materials from the police. If a complainant intends to exercise the right to institute private prosecution, the complainant would be responsible for gathering evidence.
In considering whether or not to issue a summons, the magistrate has to consider whether the allegation is of an offence known to the law, and if so, whether on the face of it, the essential ingredients of the offence are present. In other words, the court has to decide if a prima facie case has been established by the evidence presented to it. By prima facie, one means generally that taking the evidence presented to the highest, whether a reasonable and properly directed jury will be able to convict.
After the institution of the proceedings and whatever procedures that are adopted by the magistrate, the court will decide if a summons will be issued to the defendant to state the matter of the complaint and to summon him to appear before the court on a particular day to answer the complaint or information. There is no requirement for the magistrate to give a written reason for the decision to issue a summons.
The decision of the magistrate is amenable to judicial review irrespective of the steps that would be taken by the Secretary for Justice.
Section 14(1) of the Magistrates Ordinance states that: A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates but the Secretary for Justice may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 104 for applying for a review intervene for the purpose of applying for or being made a party to any review.
Section 14(2) of the Ordinance stipulates that as from the date of any such intervention the Secretary for Justice shall be deemed to be a party to the proceedings or the review in lieu of such complainant or informant.
Once the magistrate has issued a summons, at any stage of the proceedings, the Secretary for Justice is entitled to intervene in the private prosecution to assume the conduct of those proceedings. The Secretary for Justice may prevent the prosecution from continuing by withdrawing the summons, declining to sign the charge sheet or indictment, or take over and continue the prosecution, or let the private prosecution continue. In short, the Secretary for Justice can intervene to withdraw the charge, to apply for a permanent stay of proceedings or to offer no evidence against the defendant.
The Secretary for Justice should consider a number of factors when deciding whether or not to take over a private prosecution and what steps to follow after such intervention. A number of factors by way of example have been set out in the Prosecution Code to guide the work of the Department of Justice. Important principles have been laid down by some precedent cases.
Similarly, the decision of the Secretary for Justice whether or not to take over may be judicially reviewable.
The right to institute a private prosecution is an important feature of the common law system. However, it might be open to abuse. Private prosecutions which are groundless or frivolous or brought out of improper motives or political considerations should not be condoned.
As the Department of Justice has the constitutional duty to control criminal prosecutions under Article 63 of the Basic Law, we have an obligation to intervene in and discontinue a private prosecution which is considered to have no reasonable prospect of conviction, be contrary to the public interest, be brought out of improper motives, or constitute an abuse of process, etc. Indeed, where proceedings would amount to an abuse of process, the Department of Justice should ask the court to order that those proceedings be stayed.
The abuse of such process is also pertinent when considered in this perspective. A private prosecutor brings a case on a prima facie standard, a summons was issued by the magistrate. The trial continues and the private prosecutor is not able to discharge the burden of proof to a standard of beyond reasonable doubt and the defendant is discharged. The defendant will not be able to be prosecuted again in light of the principle against double jeopardy. Hence speed in bringing forth a private prosecution is not always advantageous and indeed may result in extremely unfair result. It is exactly for these and other reasons that the Secretary for Justice has the right to intervene to ensure that justice is administered.
As a reminder, if a complainant institutes an unmeritorious private prosecution and fails, the complainant may be liable to pay costs to the defendant. If the prosecution is brought maliciously, the complainant may even face civil liability to pay compensation to the defendant. If the matter is taken to judicial review then issue of costs will arise too.
We are determined to promote fair, just and consistent decision-making at all stages of the prosecution process. Any wrong decision in prosecutions will inevitably damage the confidence of the community in the criminal justice system. Therefore, it is of utmost importance for the Department of Justice to strike a balance between the right of private prosecutions and shouldering our responsibility of avoiding unnecessary and unjustifiable prosecutions.
June 16, 2020