Nolle Prosequi

Neville Sarony August 21, 2020 11:45

Teresa Cheng SC, Hong Kong’s Secretary for Justice, has intervened in Ted Hui’s private prosecution of the police officer who fired his pistol directly at a protester, taken over the case and stopped it.

Her action in doing so is not against the common law but does need to be seen in context.

Under the Magistrates Ordinance (Cap.227) anyone may commence a criminal prosecution. However, section 14(1) specifically provides that the Secretary for Justice may intervene and take over the conduct of such a case. There are no restrictions on this power.

Section 15 of the same Ordinance empowers the Secretary for Justice to “enter a nolle prosequi by informing the magistrate in writing that the HKSAR intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered”.

The Hong Kong Magistrates’ Ordinance echoes the same provisions that apply in England.

This is very basic criminal law and procedure and every lawyer who professes to be competent in crime should know this.

Historically, the provision existed to enable the Attorney-General to provide protection against indiscriminate persecution by those seeking revenge or simply out of a vindictive desire to harm someone else.

Ordinarily, there are two simple tests for whether or not to authorize any prosecution, whether it is brought by the state or a private individual: is the evidence sufficient to obtain a conviction and is it in the public interest to prosecute?

The devil lies in the second criterion.

There are countless circumstances in which a Director of Public Prosecutions can and should, legitimately, decide that it is not in the public interest to prosecute.

But it is obvious that any such discretion must be exercised for bona fide reasons.

Equally clearly, it is a discretion that is open to abuse.

In Hong Kong’s emotionally charged atmosphere, especially where people hold opinions at polar extremes, it is of particular importance that the legal system is seen to be above politics.

Regardless of wild accusations that Hong Kong’s judiciary, pre introduction of the National Security Law, had abandoned its highly regarded reputation for impartiality, any analysis of the system’s judgments shows that this is not so.

Ted Hui’s private prosecution ESMP 258 of 2020 was, prior to the intervention, a good illustration of this. The court had already struck out some of the alleged offences.

The judicial system was operating as it was intended to.

Now consider the context of this prosecution.

Hundreds of thousands of people who participated in the protest movement have been arrested for alleged criminal offences and several have been brought to trial and several convicted. Many more await trial.

Yet, to the concern of many objective observers, there appears to have been a marked lack of accountability for abuse of power by members of the police force.

Unquestionably, this caused and continues to cause a volcanic rift in the public perception of the proper balance between members of the public and the police, acting on the instructions of the current administration.

ESMP 258 of 2020 was the canary in the mine of the Hong Kong public’s perception of the operation of the rule of law.

By removing the canary, Teresa Cheng has demonstrated either that Carrie Lam’s administration no longer has confidence in Hong Kong’s judiciary or that police officers are above the law.

By terminating the prosecution, the Secretary for Justice has declared that the judiciary cannot be trusted by this government to deliver verdicts of which it approves.

This government is blind to the fact that such a decision demonstrates that, correlatively, the public cannot repose trust in the administration.

The judiciary would have had to consider all the evidence of the specific offence alleged to have been committed and reach a determination, judged to a standard of proof beyond all reasonable doubt.

Both the judiciary and the public have been deprived of the opportunity for a high profile test of the common law in action.

I have a long-held objection to describing a government’s chief legal advisor as Secretary for Justice, it is a patent misnomer because Justice is a concept of impartiality.

The law provides a procedure by which the Secretary for Justice may intervene, take over a private prosecution and then kill it off by informing the court that it will not continue.

Consequently, Teresa Cheng’s action was technically legal, but manifestly imprudent and arguably immoral.

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Neville Sarony

King's Counsel