Private Prosecution System Can Be Abused: Minister

Justice Secretary Teresa Cheng on Tuesday set out a host of reasons why she might have to intervene in a private prosecution accepted by a magistrate, at a time when pro-democracy lawmakers are pursuing cases against the police and a rival legislator.

Writing on her blog, Cheng said the right to institute a private prosecution is an important feature of the common law system, but it could be open to abuse.

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

Cheng said the Department of Justice has 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 also noted that if there isn't enough evidence against a defendant and they are discharged they could not be prosecuted again in light of the double jeopardy principle.

"Hence speed in bringing forth a private prosecution is not always advantageous and indeed may result in extremely unfair result. It is exactly for these and other reasons that the secretary for justice has the right to intervene to ensure that justice is administered."

Cheng also said she wanted to remind people that if an "unmeritorious" private prosecution fails, the complainant may be liable to pay costs to the defendant and could even face civil liability and have to pay compensation if the prosecution was brought "maliciously".

"We are determined to promote fair, just and consistent decision-making at all stages of the prosecution process. 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."

Last week, an Eastern Court magistrate agreed to summon a police officer who shot a protester with live ammunition last November, in a private prosecution brought by Ted Hui. The Democratic Party legislator also has a case against a taxi driver whose vehicle ploughed into a group of protesters last October.

People Power lawmaker Ray Chan, meanwhile, has filed an application to launch a private prosecution against pro-Beijing rival Kwok Wai-keung over an alleged assault in Legco last month.