7. Private Prosecution

7.1   Under the common law a person has the right to commence a criminal prosecution in the public interest.

7.2   Section 14 of the Magistrates Ordinance, Cap. 227 enables a complainant or informant to conduct a prosecution either in person or by counsel.

7.3   The Secretary for Justice is entitled to intervene in a private prosecution and to assume its conduct, becoming a party to the proceedings at that time and displacing the original prosecutor. The Secretary for Justice may continue proceedings privately begun or may prevent them from continuing by declining to sign the charge sheet or indictment (see sections 74 and 75 of the District Court Ordinance, Cap. 336 and section 17 of the Criminal Procedure Ordinance, Cap. 221). A decision on the future course of the prosecution will be made in accordance with the Prosecution Code before a decision is made whether or not to intervene.

7.4   When considering whether or not to take over a private prosecution, the following factors should be included among those taken into account:

  1. the interests of public justice;
  2. the seriousness of the offence;
  3. the views of any interested party;
  4. any duplication of proceedings;
  5. consistency with decisions of the Department of Justice;
  6. the prospects of a fair trial.

The Secretary for Justice may also take into account the conduct of the original prosecutor.