30 September 2023

Explainer: How Private Prosecution Works in Hong Kong

What is private prosecution? It is a rarely invoked mechanism in enforcing criminal law in Hong Kong.

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Ted Hui says his arrest at a rally in June was an “act of revenge” by the police. The pan-democratic lawmaker filed a private prosecution against an officer in January. (AFP photo, used with permission)


[Updated on August 25, 2020]

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.

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.

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.

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.

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.