[Updated on August 25, 2020]
On Aug. 24, the West Kowloon Magistrates’ Court agreed to the request made by the Department of Justice (DOJ) to discontinue private prosecution against both the policeman who shot a protester in Sai Wan Ho and a taxi driver accused of ramming protesters. The DOJ determined that both of Hui’s cases showed no reasonable prospect of conviction.
According to media reports, the DOJ concluded, after reviewing undisclosed investigation reports from an independent police team, that the policeman used lawful, reasonable force for crime prevention and self-defence.
The DOJ also reportedly argued that the defendant’s right to a fair trial would be impinged because Hui did not plan to call witnesses including the person who was shot.
In an interview, Hui condemned the DOJ for “working under a black box.” He described the intervention as overriding the court’s view that Hui presented sufficient preliminary evidence when the summons was issued.
Hui said he plans to apply for judicial review. However, former Director of Public Prosecutions Grenville Cross doubted whether the court could overrule the DOJ’s decision, citing Article 63 of the Basic Law, which gives the DOJ authority over criminal prosecutions “free from any interference.”
[The following part was published on July 3, 2020]
In June Hong Kong pan-democratic lawmaker Ted Hui, who has often been present at pro-democracy protests, received the court’s approval for his private prosecution against a policeman with the surname Kwan, who shot a protester with a live round in November last year.
Later in June the Eastern Magistrate’s Court issued summons on three charges, for shooting with intent to cause grievous bodily harm, discharging ammunition with reckless disregard for the safety of others, and dealing with arms in a manner likely to injure or endanger safety. The magistrate did not approve the charges of attempted murder and discharging ammunition in a manner likely to injure or endanger safety.
Hui also received the go-ahead to initiate another private prosecution against a taxi driver surnamed Cheng for dangerous driving during a rally in October.
But what is private prosecution? It is a rarely invoked mechanism in enforcing criminal law in Hong Kong. Annie Lab looked into the details.
Could private prosecution be filed against the police?
According to section 14(1) of the Magistrates Ordinance (Cap. 227), an individual has the right to initiate private prosecution for a criminal offence against another person without the Department of Justice’s permission. The section does not provide a general limit on the class of accused persons or the type of criminal charges that can be brought by an individual.
Isn’t prosecution the job of the Department of Justice (‘DOJ’)?
Although the DOJ has the final say on all criminal prosecutions, as established by Article 63 of the Basic Law, every individual has the same right as the prosecuting authority.
The right of private prosecution is well-established in the common law, which has been practiced in Hong Kong since the city’s colonial days. This right has been described by the U.K. House of Lords (the predecessor of the U.K. Supreme Court) as “a valuable constitutional safeguard against inertia or partiality on the part of authority.”
In some non-common law jurisdictions, victims of crime also have similar rights to participate in prosecution, although the substance of such rights varies depending on the laws of the respective country.
For example, victims in Germany only have a right to private prosecution in certain types of cases listed in legislation, typically limited to minor offences such as libel and property damage.
What does this mean under the current political climate in the city? What happens next?
By issuing the summons, the magistrate is satisfied that Hui has demonstrated preliminary evidence of Kwan committing the charged offenses and that Hui has brought a proper case and is not abusing the prosecution procedure.
After the summons is issued, the defendant will appear before the magistrates in a mention hearing to plead guilty or not guilty. The date for Kwan’s mention hearing is set for Aug. 31 at the West Kowloon Magistrates’ Court. If Kwan pleads not guilty, the case will go to trial on another date.
However, it is not certain that Kwan will be tried or convicted, because the Secretary for Justice can take over the private prosecution at any stage of the case under Section 14 of the Magistrates Ordinance (Cap. 227), and has the power to discontinue the prosecution afterwards. The Secretary for Justice can also effectively halt a private prosecution by refusing to sign the charge sheet or the indictment.
Before the Secretary for Justice takes over a private prosecution, the Prosecution Code says it must consider a myriad of factors, including the interests of public justice, the seriousness of the offense, and the views of any interested party (i.e. the private prosecutor, the defendant, etc.).
However, these are not preconditions for intervening in a private prosecution. According to the Court of First Instance in the case Re Ng Chi Keung  CFI 309, the Secretary for Justice does not have to provide reasons for the intervention or prove that the intervention is in the public interest.
In 2015, the DOJ prosecuted seven police officers for assaulting a protester named Ken Tsang during the 2014 Umbrella Movement. Why has Kwan not been prosecuted by the DOJ this time?
The DOJ has not explained why it has not yet initiated prosecution against Kwan, nor has it said whether it intends to prosecute him. Under the Prosecution Code, there are two factors that the DOJ must consider when making prosecution decisions: sufficiency of evidence and the public interest.
Evidence is considered to be sufficient when there is “a reasonable prospect of conviction.” Public interest involves a wider range of considerations, such as the seriousness of the offense, criminal history of the person charged, and any possible deterrent effect of a decision to prosecute. If the Secretary for Justice thinks the interest of public justice does not require her interference, she is not bound to prosecute the accused person.
In practice, prosecution decisions have become a politically charged subject. Last year, a group of prosecutors anonymously condemned the Secretary for Justice and the Director of Public Prosecution for abandoning the two factors prescribed by the Prosecution Code and taking into account political considerations, and lawyers have marched in protest of the DOJ’s perceived loss of independence in prosecution decisions.
Most recently, the DOJ’s decision in May to drop a drug trafficking charge against the daughter of a Hong Kong police officer, despite the magistrate’s opinion that conviction would be likely, has also attracted doubts regarding the impartiality of prosecution decisions.
Has anyone initiated private prosecution before?
Yes. According to the DOJ, 30 private prosecutions were initiated between 1996 and 2000, but details of those cases have not been disclosed.
However, public discussion of private prosecution seems to have had some influence on the DOJ in recent years. In February 2017, Osman Cheng, a bystander during the 2014 Occupy Central protests, threatened in an open letter to initiate private prosecution against a retired police superintendent named Chu King-wai for assaulting him with a baton. The police arrested Chu in the following month and laid a charge against him, making private prosecution unnecessary.
In July 2015, Ken Tsang applied for judicial review against the Police Commissioner’s refusal to disclose the names of the seven police officers who attacked him, which Tsang needed to initiate private prosecution. The police eventually laid charges against the seven police officers in October 2015.
Most recently on June 24, a private prosecution of five counts of misconduct in public office against Leung Ka-wing, the Director of Radio Television Hong Kong, was rejected by the court due to insufficient evidence.
What are the difficulties in filing a private prosecution?
First, it may not be worth the time and effort to start a private prosecution because the Secretary for Justice can take over any time and could also subsequently discontinue the prosecution.
On June 16, the incumbent Secretary for Justice Teresa Cheng said she is obliged to intervene and discontinue private prosecutions that are “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.”
Second, the cost of private prosecution is prohibitively high for many people. Hui had to crowdsource HK$3.38 million for the prosecution of Kwan alone. In addition, private prosecutors are not eligible for legal aid. As the Court of First Instance explained in Jiang Enzhu v Lau Wai Hing  HKLRD 121, the rationale of this restriction is to prevent malicious prosecution.