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Wednesday, February 26, 2020, 10:49
Private prosecution: A citizen’s right but capable of grave abuse
By Grenville Cross
Wednesday, February 26, 2020, 10:49 By Grenville Cross

Although the Democratic Party lawmaker, Ted Hui Chi-fung, is trying to bring a private prosecution against a police officer for having shot a black-clad protester during a violent confrontation in Sai Wan Ho on Nov 11, he may well find out that there is more to this than he imagined.

Hui has accused Station Sergeant Kwan Ka-wing, a traffic officer, of attempted murder and shooting with intent to cause grievous bodily harm, both of which offences carry life imprisonment on conviction. Hui and his cronies have reportedly raised HK$3.38 million (US$434,000) for the purpose of prosecuting police officers, and, having studied several incidents, they have opted to go after Kwan, as if they were engaged in a lottery, not a solemn act. Although Hui, when he attended Eastern Court on Jan 23, announced that his private prosecution was intended to deter police officers from abusing their powers, he could be in for a rude shock.  

During the incident, Kwan was reportedly confronted by hostile protesters, and was struggling with one of them when he fired at another, who was closing in on him. According to the police spokesman, Li Kwai-wah, a group of troublemakers “were believed to be targeting the officer’s pistol”, and “the act of drawing his revolver and even shooting did not deviate from the guidelines”. The Hong Kong Island regional commander, Kwok Pak-chung, subsequently disclosed that Kwan had felt “his life was at risk”.

After the incident, Kwan was doxxed by hostile elements, while his two young daughters received death threats.

Although, properly used, private prosecution is an important feature of our legal system, if it is misused it can become a tool of oppression. Suspects must never be prosecuted unless there is at least a reasonable prospect of conviction, and it is also in the public interest. If prosecutions are not brought in good faith, those responsible must face the consequences. The criminal justice system in Hong Kong must be safeguarded at all costs

Although Hui claims to have three witnesses to substantiate his allegations, these do not include the man who was shot, Chow Pak-kwan, as there are fears he will risk being charged if he tells the court what he was doing during the incident. It is, of course, very unusual indeed in a case like this not to call the alleged “victim”, particularly when he is available to testify. If the case ever proceeds to trial, which seems unlikely, its prospects of success would be greatly affected by the deliberate absence of the very witness from whom the court would expect to hear.

At common law, however, it is open to an aggrieved citizen to bring a private prosecution. This is an ancient right, and it provides a remedy for the individual who wishes to see the law enforced, as the legislature intended it should be, save for good reason. The right was invoked, for example, by the former lawmaker, Emily Lau Wai-hing, in 1998, against the then-director of the Xinhua News Agency, Jiang Enzhu, for an alleged failure to comply with a data access request. However, the case collapsed after the High Court ruled that Lau’s allegation “was, on any view of the matter, misconceived”.

Although the right to privately prosecute is, thus, open to abuse, it nonetheless has a role to play in appropriate circumstances. Indeed, the famed English jurist Lord Wilberforce once called the right of private prosecution “a valuable safeguard against inertia or partiality on the part of authority” (Gouriet v Union of Post Office Workers, 1978).

However, before things can progress, the private prosecutor must first persuade a magistrate to issue a summons against a proposed defendant, which invariably requires disclosure of the evidence to be relied upon. Then, if he wishes to retain control, and not everyone does, he may have to persuade the secretary for justice not to intervene and take the case over, as he or she is entitled to do, particularly if it is arbitrary, dubious or politically tainted.

Under the Basic Law (Article 63), the Department of Justice retains the ultimate control of prosecutions, whether public or private. Once a private prosecution starts, the secretary for justice, Teresa Cheng Yeuk-wah, may, under the Magistrates Ordinance (Section 14), “intervene at any stage of the proceedings”, and either prosecute the case herself, if it has substance, or, if it is frivolous, end it, by withdrawing it or offering no evidence. Although Hui, when he attended court last month to initiate his private prosecution, warned the secretary not to intervene, claiming this risked damaging her department’s reputation, he is clearly unaware of Cheng’s legal obligations.

If the Department of Justice has already decided that no prosecution is justified, Cheng will have to stop the case, unless Hui has significant new evidence of which her department was unaware. The public interest obviously requires that unmeritorious trials should be avoided, and that mischievous cases are nipped in the bud.  Quite clearly, the legal system can have no truck with private prosecutions which the courts have called “an abuse of legal process” (Dyson v Attorney General, 1911).

Of course, in the unlikely event that the private prosecution was found by the magistrate to have substance, the case, given that the offences carry life imprisonment, would have to be transferred for trial to the Court of First Instance. It would then be necessary not only for Cheng to finalize the charges and sign the indictment, but also to assume the conduct of the prosecution.

Once the secretary for justice has stepped in and terminated a private prosecution, her decision cannot thereafter be challenged judicially, unless it is “manifestly such that it could not be honestly and reasonably arrived at” (Raymond v Attorney General, 1982). In effect, what anyone dissatisfied with her decision would need to show on appeal is either that the decision was unlawful, or contravened established prosecution policy, or was perverse, none of which would be easy to establish. 

If the right of private prosecution is abused, for political reasons or otherwise, the secretary for justice has no choice but to intervene, not least because of her duty to uphold the integrity of the criminal justice system. Hui’s motivation, therefore, will require very careful scrutiny, and, once it has assessed the situation, Kwan’s lawyers will undoubtedly home in on this aspect if they ask Cheng to end their client’s ordeal.

If, moreover, the court throws out the case, Kwan will be entitled to claim his legal costs against Hui. If the private prosecution is deemed unmeritorious, Kwan will also wish to consider suing Hui for malicious prosecution, which, as a tort, is a claim for damages for harm done.  

In the United States, moreover, the US Court of Appeals for the Seventh Circuit has defined “vindictive prosecution” as conduct that results from “specific animus or ill-will” (United States v DeMichael, 1982). If, therefore, it becomes apparent that Hui has initiated a criminal prosecution against Kwan, not because of the strength of the evidence and the public interest, but because of his hatred of the police force and its policies, Cheng will wish to consider if he should be prosecuted for attempting to pervert the course of public justice, by trying to have an innocent man convicted on trumped up charges.     

Indeed, Hui, buoyed by his war chest, has now become trigger-happy. On Feb 24, he announced that he is planning yet another private prosecution. In his sights this time is Henry Cheng Kwok-chuen, the taxi driver who, after his vehicle ploughed into a crowd in Sham Shui Po on Oct 6, was dragged out and beaten unconscious by a frenzied mob, which then smashed up his taxi. As with Kwan, Cheng’s family also received death threats, such being the all-too-familiar tactic of the protest movement. Hui, however, has said nothing about also prosecuting those who assaulted Cheng, criminally damaged his vehicle, and intimidated his family, and one can only wonder why, if he is really seeking justice.     

Although, properly used, private prosecution is an important feature of our legal system, if it is misused it can become a tool of oppression. Suspects must never be prosecuted unless there is at least a reasonable prospect of conviction, and it is also in the public interest. If prosecutions are not brought in good faith, those responsible must face the consequences. The criminal justice system in Hong Kong must be safeguarded at all costs.

The author is a senior counsel, law professor, and criminal justice analyst, and was previously the director of public prosecutions.

The views do not necessarily reflect those of China Daily.

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