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Domestic helper seeks judicial review in case of masturbating boss

Director of Public Prosecutions' decision not to pursue prosecution of boss is considered immune under Basic Law

JULIE CHU

A domestic helper is trying to use a judicial review to test whether the Director of Public Prosecutions’  immunity against any challenge to his prosecution decisions – as granted by the Basic Law – can be overturned, a court has heard.

The woman, who is named as D in court for legal reasons, is seeking permission for the courts to review the director’s decision not to pursue prosecution of her male boss for allegedly masturbating in her presence last year.

Her lawyer, Gerard McCoy SC,  argued the director could not cite Article 63  of the city’s mini-constitution as a reason to avoid the review.

The article says the Department of Justice  “shall control criminal prosecutions, free from any interference”.

“The court must keep the DPP accountable and as equal as us,” McCoy told the High Court yesterday.

But barrister Peter Duncan SC,  for the government, said whether the DPP decided to charge a person was not a subject of judicial review “unless the director acts outside the scope of the constitution power other than Article 63”.

Duncan referred to a similar issue in 2008 in which Mr Justice Michael Hartmann  suggested three criteria under which the court could consider a review: the director made his decision in obedience to a political instruction; acted in bad faith such as taking a bribe; or refused to prosecute a specific class of offence.

Earlier, the court heard D started working for the family in November 2013. Around February last year, she began to notice, from reflection in the television, her boss masturbating behind her.

He repeated the act a few more times and was always seen reflected in glass surfaces. D then secretly recorded a video and reported it to the police.

The department informed her in February this year its decision not to charge him.

McCoy told the court the evidence was substantial and D was fearful of suffering an actual sexual assault, such as rape.

Duncan said D’s complaint was mainly about how the director had dealt with the evidence rather than a matter of law. He argued the court should not interfere in the decision.

Mr Justice Kevin Zervos  will hand down his decision later.

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