Hong Kong Case Law: Decisions & Judgments

Topic

Prosecution policy

Legal area

Court

6 Sept 2019

TSANG KIN SHING v. SECRETARY FOR JUSTICE

Citation

[2019] HKCFI 2215
Court

Court of First Instance
Case number

HCAL687/2019

Prosecutorial decisions of the Secretary for Justice are amenable to judicial review only to the limited extent that they exceed the constitutional limits imposed by Article 63 (eg obedience to political instruction, bad faith or rigid fettering); the applicants failed to show any arguable ground that the Secretary acted outside those limits and the leave applications were therefore dismissed.
16 Mar 2015

HKSAR v. VU THANG DUONG

Citation

HKSAR v. VU THANG DUONG
Court

Court of First Instance
Case number

HCMP249/2015

Bail was granted because, on the facts, the applicants had been held in remand for an unreasonable and inordinate period relative to the non-violent nature of the charges and the status of the criminal proceedings; the applicants demonstrated the ability to comply with appropriate conditions (residential address, reporting, surrender of travel documents), and those factors outweighed the risks relied on by prosecution. The court held it may take into account the merits of a non-refoulement claim if the nature of the claim is ascertainable, but need not do so where delay and remand length just…
20 Aug 2013

RE RS

Citation

RE RS
Court

Court of Appeal
Case number

CACV206/2012

Leave refused because the applicant's grounds were not reasonably arguable: on the facts the adjudicator was entitled to determine the petition on the papers (Requirement (d) concerning state involvement was not supported by evidence and had been highlighted to the applicant), there was no realistic risk of self-incrimination and legal/common-law protections and departmental policy prevented use of CAT statements in criminal proceedings, and the brief reasons in CALL-1 were adequate for a leave refusal.
31 May 2010

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

Citation

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE
Court

Court of Appeal
Case number

CACV53/2009

The Court held (1) the prosecutions for s38(1)(b) were caught by the Prosecution Policy immunity and thus should not normally proceed until claims exhausted, (2) entry into recognizances under s36 does not constitute authority by the Director under s13 for the purposes of s38(1)(b) and therefore is not a defence to that offence, and (3) continuation of prosecutions is not automatically an abuse of process entitling to a permanent stay; matters are to be remitted to the Magistrates' Court to be dealt with in accordance with the Policy and this judgment.
31 May 2010

WASEEM ABBAS AND OTHERS v. SECRETARY FOR JUSTICE

Citation

WASEEM ABBAS AND OTHERS v. SECRETARY FOR JUSTICE
Court

Court of Appeal
Case number

CACV54/2009

Court of Appeal held: (1) the prosecutions for s38(1)(b) were caught by the Prosecution Policy's temporary immunity and thus should not have proceeded without adjournment; (2) a recognizance under s36 does not amount to 'the authority of the Director' for the purposes of s38(1)(b) and therefore does not provide a statutory defence; (3) prosecutions outside the policy do not automatically amount to abuse justifying permanent stay; matter remitted to Magistrates' Court for appropriate disposition.
2 Mar 2009

WASEEM ABBAS AND OTHERS v. SECRETARY FOR JUSTICE

Citation

WASEEM ABBAS AND OTHERS v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL8/2009

The court held the prosecutions were outside the published prosecution Policy but that alone did not constitute an abuse of process warranting a stay; however a recognizance given under s.36 of the Immigration Ordinance, in the factual context where the Director made a conscious decision to permit claimants to remain pending determination of asylum/torture claims, constitutes authority to remain for the purposes of s.38(1)(b) and therefore provides an arguable defence; consequent decisions of the magistrate were quashed and the matters remitted for reconsideration in accordance with these fin…
2 Mar 2009

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

Citation

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL150/2008

The court held that the prosecutions fell outside the published prosecution policy but that prosecution outside the policy is not, by itself, an abuse of process warranting a stay; however, a recognizance entered under s.36 can constitute authority from the Director to remain in Hong Kong for the purposes of a defence to a charge under s.38(1)(b); accordingly the magistrate's decisions were quashed and the matters remitted to the magistrate to reconsider in light of these findings.
30 Dec 2008

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

Citation

IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL150/2008

The applicants established reasonably arguable grounds on both central issues — that prosecution contrary to the published policy could amount to abuse of process in very rare cases, and that it is arguable a recognizance under s36 may amount to authority to remain for s13/s38(1)(b) — and, given the exceptional circumstances and prospective reduction of multiple trials, leave to apply for judicial review is granted.
10 Mar 2008

RV v. DIRECTOR OF IMMIGRATION AND ANOTHER

Citation

RV v. DIRECTOR OF IMMIGRATION AND ANOTHER
Court

Court of First Instance
Case number

HCAL2/2008

The Secretary for Justice's control of criminal prosecutions is amenable to judicial review only to a very limited extent consistent with the Basic Law; review is confined to exceptional circumstances such as political interference, bad faith, rigid fettering or acting beyond constitutional or statutory powers. On the facts the applicant failed to show such exceptional circumstances; the prosecution was consistent with published policy and not constitutionally impermissible, and the alleged abuse of process was premature for determination by this court.
21 Jun 2002

HKSAR v. TONG KIN MAN

Citation

HKSAR v. TONG KIN MAN
Court

Court of First Instance
Case number

HCMA384/2002

Appeal allowed and sentence reduced to effect immediate release because the magistrate should have taken into account the acquittal on the related charge (and/or adjourned sentencing pending that trial); the prosecution conceded that a discount and immediate release were appropriate.