Private Prosecutions in Hong Kong: The Role of the Magistrates and State Intervention to Prevent Abuse

Abstract

Private prosecutions have been part and parcel of the law of Hong Kong for some time now. For example, in 1970, the Court of Appeal observed that ‘[t]here are, from time to time, private prosecutions brought for a variety of offences which adversely affect the rights or interests of private individuals or registered companies; institutions or organizations e.g. infringement of patent rights, trespass etc’. The 2013 Prosecution Code, which replaced the 2009 Statement of Prosecution Policy and Practice, states that ‘[u]nder the common law a person has the right to commence a criminal prosecution in the public interest.’ Private prosecutions may be abused. This article analyses case law from courts in Hong Kong to demonstrate how magistrates have prevented the abuse of private prosecutions by refusing to issue private summons and how the Secretary of Justice or the Director of Public Prosecutions (DPP) has intervened in private prosecutions to, inter alia, prevent their abuse. Relying on legislation or case law from other countries, the author recommends ways through which the right to institute a private prosecution may be strengthened in Hong Kong. In particular, the author argues that there is no need for a prima facie case to institute a private prosecution; the requirement for the existence of direct evidence before a private prosecution is permitted to proceed is too restrictive and should be reconsidered; and the court’s consent should be required before the DPP takes over a private prosecution.