HONG KONG
LEGISLATIVE COUNCIL 18 January 1989 香港立法局————————————一九八九年一月十八日
33
Criteria for entering a nolle prosequi
8. MR. TAI asked: Will the Administration inform this Council of the criteria adopted by the Attorney General in deciding whether or not to enter a nolle prosequi in a criminal prosecution; the reason for the delegation of this power within the Legal Department, bearing in mind that under English Law the power cannot be delegated; and the number of cases in which a nolle prosequi was entered in the past three years, together with the grounds on which the decisions were based?
ATTORNEY GENERAL: Sir, the power to enter a nolle prosequi is used by the Attorney General to terminate criminal proceedings. Its use does not operate as an acquittal of the accused, so that fresh proceedings may later be commenced against the accused for the same offence.
The facts of each case differ. It is therefore not possible to provide exhaustive criteria. In general the public interest in seeing that those suspected of criminal acts are brought to trial must be weighed against the interest of an accused to be tried without undue delay or prejudice to his defence.
By way of examples, nolles prosequi have been entered in the following circumstances:
where because of his physical or mental infirmity, a trial would be unfair to the accused but at the same time an acquittal is not warranted;
where there is information that a key witness to a serious offence has been bribed or intimidated not to attend court to give evidence for the prosecution in circumstances where an acquittal as a result of such misconduct would not be in the public interest; and
when charges have been brought in the wrong court and where the entry of a nolle prosequi is the only means of effecting justice in the appropriate forum.
In Hong Kong, the Attorney General is permitted by law to delegate many of his functions including this one. The power to enter a nolle prosequi has been delegated to the Crown Prosecutor and to the three Deputy Crown Prosecutors. No doubt delegation has been considered to be a practicable and sensible measure and I would point out that these are very senior lawyers who are particularly well placed to consider such cases in depth and, where necessary, at short notice.