10. Review and Discontinuation

10.1   A prosecutor remains under a duty continually to review a prosecution that has been commenced. The prosecution must be discontinued if, following a change of circumstances, a reapplication of the prosecution test at any stage indicates that the evidence is no longer sufficient to justify a reasonable prospect of conviction or the interests of public justice no longer require the prosecution to proceed.

10.2   If a decision has been taken not to prosecute in a particular instance or to discontinue a prosecution, that decision will be reversed only in justifiable circumstances which may include:

1. cases in which some error or oversight has resulted in a decision which, on review, is seen to have been clearly wrong;
2. cases where unanticipated significant evidence becomes available at a later time;
3. cases that are temporarily discontinued while evidence continues to be gathered (where the accused will have been warned of the possible reversal);
4. cases in which the discontinuance was obtained by fraud, dishonesty, or impropriety.

Judicial Review

10.3   An independently made prosecution decision of the Secretary for Justice or his or her delegate, or decisions made during criminal proceedings may be judicially reviewed only in rare and exceptional cases. This is also the case with decisions made at trial in order to avoid the fragmentation of the criminal trial process. An order of review can do no more than require the Secretary for Justice to reconsider the decision in the light of the court’s findings.

Nolle Prosequi

10.4   Proceedings on indictment in the Court of First Instance, by charge in the District Court and for an indictable offence in the Magistrates’ Court may be stayed by the entry of a nolle prosequi but only on the direction of the Secretary for Justice.

10.5   A nolle prosequi does no more than stay the prosecution which may be recommenced if the interests of public justice so require. It is an exceptional procedure, to be exercised in cases such as where an accused suffers from a cognitive or physical incapacity that is likely to be permanent, or where it would prevent the interests of public justice being thwarted (for example, where interference with a witness cannot be adequately addressed by an adjournment).

Bind Over Orders

10.6   A person having admitted his or her wrongdoing without a conviction being secured against him or her may be bound over to keep the peace and/or be of good behaviour in relation to specific conditions. The court must find facts from which it could properly be inferred that there is a danger of the person committing a breach of the peace in the future. Notice of the course proposed must be given to the person. Failure to enter a recognizance or breach of its terms may result in contempt proceedings against the person.

10.7   Such a procedure is particularly appropriate in cases of first-time offenders and minor offences. An offender admits his or her wrongdoing and is admonished in open court, and then gives an undertaking to the court to be of good behaviour for up to 2 years with the added sanction that may be imposed of up to 6 months’ imprisonment for breaching the undertaking (see section 61 of the Magistrates Ordinance, Cap. 227). Such a procedure serves the ends of preventative justice and rehabilitation of the offender. A decision to agree to such a procedure on specific conditions requires consideration of:

1. whether the public interest requires the prosecution to proceed;
2. whether the consequences to the offender would be out of all proportion to the gravity of the offence;
3. the likely penalty in the event of conviction;
4. the age of the offender, his or her record, character, mental state (at the time of offending and presently);
5. the views of the victim;
6. the attitude of the offender to the offence.