Private Hong Kong prosecutors warned of obstacles if they wish to press their case
Former lawmaker Wong Yuk-man is considering launching a private prosecution against Chief Executive Leung Chun-ying over the UGL payment
In September, former lawmaker Wong Yuk-man said he was considering launching a private prosecution against Chief Executive Leung Chun-ying over his receipt of HK$50 million from Australian engineering firm UGL. Before doing so, however, he would be well advised to take legal advice, as a private prosecutor may face formidable obstacles.
The right of private prosecution is an ancient one, and British judge Lord Wilberforce called it “a valuable constitutional safeguard against inertia or partiality on the part of authority”.
Two years have now passed since the Independent Commission Against Corruption started investigating the UGL payment, and people are naturally worried over what is going on.
In the modern-day ICAC, however, delays are commonplace. Even the simple allegation by businessman Lew Mon-hung in 2013 that Leung had promised him a seat on his Executive Council in return for his support took the ICAC an incredible 18 months to process.
However, notwithstanding delay, it is difficult for a private prosecutor to bring a case to trial, particularly when an investigation is ongoing. He must first persuade a magistrate to issue a summons against the proposed defendant, which may require the disclosure of the evidence to be relied upon. Then, if he wishes to retain control, and not everyone does as it can be costly, he may have to dissuade the secretary for justice from taking the case over.
Although private prosecution provides a remedy for someone who wishes to see the law enforced, the Department of Justice, under Basic Law Article 63, retains the ultimate control over prosecutions. Once a private prosecution starts, the justice secretary may intervene at any stage and assume the conduct of the case. He may then prosecute the case himself, or else stop it in its tracks, either by offering no evidence or entering a nolle prosequi, a formal notice of abandonment.
In deciding whether to intervene, the secretary will consider not only the wishes of the parties, but also the sufficiency of evidence, the prospects of success and the public interest. If a case is still being investigated, or if the departmenthas already decided that a prosecution is inappropriate, or if the proceedings are otherwise vexatious or oppressive, the secretary may have no option but to halt things, given the public interest in avoiding duplicated proceedings or unmeritorious trials.
If the right of private prosecution is abused, perhaps for personal ends, intervention may become necessary, as the integrity of the legal system must be maintained.
Before the secretary intervenes, however, he will need to be on sure ground, not least because Basic Law Article 35 provides local residents with a “right of access to the courts”.
However, potential private prosecutors might feel less constrained to take matters into their own hands if the ICAC processes its cases expeditiously, as it did in its heyday.
Since the ICAC commissioner seems incapable of eradicating delay, the secretary for justice must seek to expedite things, given his duty to uphold the standards of prosecution and protect the rights of suspects.
Delay, unfortunately, has become the unacceptable face of criminal justice in Hong Kong, and it should come as no surprise if frustrated citizens, hoping to galvanise the system, resort to private prosecution.
Grenville Cross SC is a criminal justice analyst