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Hong Kong Secretary for Justice Teresa Cheng on Tuesday underscored her department’s right to quash private prosecutions believed to be motivated by politics or ‘improper’ intent. Photo: Nora Tam

Hong Kong justice secretary says ‘improper’ intent, political motivations reasons to quash private criminal prosecutions

  • Teresa Cheng’s comments come as several such prosecutions, including ones tied to last year’s anti-government protests, have been allowed to proceed
  • Last month, opposition lawmaker Raymond Chan used the tactic to pursue an assault case against pro-Beijing counterpart Kwok Wai-keung
Brian Wong

Hong Kong prosecutors are obliged to stop criminal proceedings launched by private residents if they are spurred by “improper” intent or political considerations, the city’s justice secretary has said.

Secretary for Justice Teresa Cheng Yeuk-wah hinted on Tuesday that the Department of Justice could consider intervening in a string of high-profile private prosecution proceedings initiated in recent months, including those related to last year’s social unrest.

Opposition lawmaker Raymond Chan has filed a private prosecution against pro-Beijing counterpark Kwok Wai-keung, who he has accused of violently dragging him to the floor during a melee in Legco. Photo: Dickson Lee

On the department’s website, Cheng wrote that residents’ rights to lodge criminal complaints in court, enshrined in section 14 of the Magistrates Ordinance, might be open to abuse, and that her department had the constitutional duty to put an end to proceedings prosecutors consider inappropriate.

“Private prosecutions which are groundless or frivolous or brought out of improper motives or political considerations should not be condoned,” Cheng said.

Democratic Party Legco member Ted Hui has successfully launched a pair of private prosecutions tied to incidents during last year’s anti-government protests. Photo: Felix Wong

“We have an obligation to intervene in and discontinue a private prosecution which is considered to have no reasonable prospect of conviction, be contrary to the public interest, be brought out of improper motives, or constitute an abuse of process.”

She added the department’s intervention was also necessary to minimise the chance of an unsuccessful prosecution due to a lack of evidence by a private prosecutor, who did not have the investigative power or resources of police to collect evidence.

Any wrong decision in prosecutions will inevitably damage the confidence of the community in the criminal justice system
Teresa Cheng, secretary for justice

“Any wrong decision in prosecutions will inevitably damage the confidence of the community in the criminal justice system. Therefore, it is of utmost importance for the Department of Justice to strike a balance between the right of private prosecutions and shouldering our responsibility of avoiding unnecessary and unjustifiable prosecutions.”

A taxi driver accused of ramming his vehicle into a crowd of anti-government protesters is among those targeted by private prosecution in recent months. Photo: K.Y. Cheng

Democratic Party lawmaker Ted Hui Chi-fung has used the tactic twice this year, successfully applying to prosecute a police officer who shot a protester with a live round in November, as well as the taxi driver who drove into a crowd during last year’s social unrest.

Hui’s colleague Raymond Chan Chi-chuen, the People Power chairman, was also given the green light to lay a count of common assault against pro-Beijing rival Kwok Wai-keung, who allegedly attacked Chan during a chaotic meeting in the legislature last month as the two camps fought over control of a key committee.

‘City’s justice department to make all prosecution decisions under national security law’

Meanwhile, two anonymous residents have lodged criminal complaints, respectively, against Leung Ka-wing, director of public broadcaster RTHK, and Civic Party lawmaker Dennis Kwok, accusing them of misconduct in public office.

Hui said he believed Cheng’s statement would pave the way for prosecutors to step in and derail privately launched proceedings that target members of the police force.

“[The statement] reflects the government’s stance that it opposes residents lodging complaints against it by way of private prosecution,” he said, while accusing the Department of Justice of inaction and being partial.

Chan also criticised the justice secretary for putting pressure on the court and those who might be planning to mount criminal complaints privately.

A unnamed private citizen has brought a prosecution against RTHK director of broadcasting Leung Ka-wing, accusing him of misconduct in private office. Photo: Dickson Lee

“I hope Cheng will stop demonising private prosecution ... and intervening in judicial proceedings,” he said, adding the court already served as a gatekeeper to filter cases deemed frivolous.

While prosecutions are controlled by the secretary of justice in Hong Kong, aggrieved citizens are allowed to bring private prosecutions against others under the common law, the legal system adopted in the colonial era.

Only a few cases are privately prosecuted each year, as opposed to the tens of thousands brought by the secretary of justice.

I hope Cheng will stop demonising private prosecution ... and intervening in judicial proceedings
Opposition lawmaker Raymond Chan

The complainant must prove to the court there is sufficient evidence to begin proceedings, before the magistrate issues a summons for the proposed defendant to appear in court.

But ultimate control rests in the hands of the justice secretary, who can discontinue a private prosecution by taking over and aborting the case, or refusing to endorse the indictment.

While the court cannot bar the justice department from intervening in private prosecution proceedings, individuals can lodge judicial challenges against the department’s decisions in the High Court.

A justice department spokesman said it did not keep track of the number of times prosecutors have intervened in such cases, and refused to comment on the present proceedings.

Additional reporting by Chris Lau and Jeffie Lam

This article appeared in the South China Morning Post print edition as: Teresa Cheng backs halt to ‘frivolous’ prosecutions
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