Private Prosecutions
Private prosecutions of crimes such as fraud and trademark infringement have become an increasingly important tool of litigation in the UK in recent years. In Hong Kong, however, this appears to remain an underused resource. In this article we consider the key legal principles governing the bringing and defending of private prosecutions in Hong Kong, and analyse the pros and cons of doing so.
The right to bring a private prosecution
In the UK, the importance of private prosecutions was recognised by Lord Wilberforce in Gouriet v Union of Post Office Workers [1978] AC 435 when he described them as “a valuable constitutional safeguard against inertia or partiality on the part of the authority”.
In Hong Kong, the right to bring a private prosecution is contained in section 14 of the Magistrates Ordinance:
“(1) A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates but the Secretary of Justice may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings…”
Beginning a private prosecution
As in the UK, a private prosecution is started by laying an information before a Magistrate. The authorities governing such a prosecution derive from UK law, but are equally applicable in Hong Kong. Before exercising the discretion to issue a summons the Magistrate must ascertain:
“(1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not ‘out of time’; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute.”[1]
This may also include consideration of whether the allegation is vexatious[2] and the likelihood of the Secretary for Justice intervening in a prosecution.[3]
The Secretary for Justice’s power to intervene in a private prosecution
The Basic Law Article 63 establishes that the Department of Justice retains control over all criminal prosecutions in Hong Kong. Section 14 of the Magistrates’ Ordinance expressly allows for the intervention and assumption of the conduct of a private prosecution by the Secretary for Justice. The Secretary for Justice may also effectively bring a private prosecution to an end by refusing to sign the charge sheet or indictment.[4]
Paragraph 7.4 of the Prosecution Code states:
“When considering whether or not to take over a private prosecution, the following factors should be included among those taken into account:
a. the interests of public justice;
b. the seriousness of the offence;
c. the views of any interested party;
d. any duplication of proceedings;
e. consistency with decisions of the Department of Justice;
f. the prospects of a fair trial.
The Secretary for Justice may also take into account the conduct of the original prosecutor.”
This power is likely to be exercised in line with very similar principles established in England and Wales. The UK Director of Public Prosecutions will intervene to take over and continue a prosecution where the evidential and public interest aspects of the two stage decision to prosecute test are met (the test is almost identical in English law to Hong Kong law), and there is a particular need for the Crown Prosecution Service to take over the prosecution, for example because of the complexity of the case or because it raises particular public interest issues. The DPP will also take over a prosecution in order to bring it to an end where the two stage test is clearly not met (rather than simply not fulfilled); in other words, where there is clearly no case to answer or the prosecution is likely to damage the interests of justice. The lawfulness of this policy was recently upheld by the UK Supreme Court.[5]
Costs
The Costs in Criminal Cases Ordinance, Cap. 492, provides for the possibility of costs orders in favour of a prosecutor. A magistrate may order costs against a defendant who is convicted with a cap of HK$30,000 unless there is agreement between the parties or it is ordered that the costs be taxed (section 11). There is no such limit on the costs that can be awarded by the District Court and Court of First Instance. Costs will be awarded if the court considers it just and reasonable to compensate the prosecutor for expenses incurred in bringing the proceedings. The costs will be recoverable as a civil debt. A defendant’s ability to pay such costs is likely to be an important consideration for those contemplating bringing a private prosecution.
Conclusion
Private prosecutions are becoming increasingly prevalent in the UK; they have a number of advantages:
i) Control
By conducting a prosecution privately rather than via the public authorities, a company or individual can ensure that it is conducted by solicitors and counsel of choice thereby increasing the prospects of a successful outcome.
ii) Speed
Initiating a private prosecution is often significantly quicker than waiting for law enforcement authorities to investigate and prosecute the case. Once initiated, a private prosecution can also be kept focused by appropriate use of resources, thereby ensuring a more expeditious outcome.
iii) Cost
The time savings detailed above will often translate into lower costs. These can also be recovered from a convicted defendant, along with pursuing compensation and/or confiscation.
iv) Deterrence
In the UK, many insurers have used criminal proceedings against those making fraudulent claims as a cost effective deterrent, in the longer term reducing costs in other areas.
v) Parallel proceedings
If bringing or defending a civil claim, the same evidence is usually admissible in both sets of proceedings. Moreover a criminal conviction (given the comparative standards of proof) will be powerful evidence in any subsequent civil proceedings.
Given their advantages and given that almost identical legal principles apply in Hong Kong, it is perhaps surprising that private prosecutions have not achieved the same prevalence in Hong Kong as in the UK. Perhaps the conditions are now ripe for change.
Brian O’Neill QC & Lewis Macdonald
[1] R v West London Justices, ex parte Klahn [1979] 2 All ER 221
[2] Rex v Bros (1901) 85 LT 581
[3] R v Tower Bridge Metropolitan Stipendiary Magistrate ex p. Chaudry [1994] Q.B. 340
[4] Sections 74 and 75 of the District Court Ordinance, Cap. 336, and section 17 of the Criminal Procedure Ordinance, Cap. 221
[5] R (Gujra) v Crown Prosecution Service [2013] 1 A.C. 484.
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