HONG KONG LEGISLATIVE COUNCIL 18 January 1989
香港立法局 ——一九八九年一月十八日
35
MR. CHUNG: Sir, could the Attorney General inform this Council who is responsible, after a nolle prosequi has been entered, to see whether a case can be resurrected-whether it is the police in charge of the case, or the Crown Counsel prosecuting the case, or the one who has authorized the entry of the nolle prosequi, and whether there is any time limit within which such officers should review the case?
ATTORNEY GENERAL: Sir, much clearly depends on the circumstances which led to the entry of the nolle prosequi in the first place. For example, it is extremely unlikely that a case terminated on humanitarian grounds would be resurrected. In other instances, a decision whether to revive charges that have been the subject of a nolle prosequi could be made as part of the usual process of the investigation and prosecution of the crime, and that process involves both the police and members of my chambers. There is not a general time limit within which a case which has been terminated by the entry of a nolle prosequi will be reviewed.
MR. MARTIN LEE: Sir, are there, or have there ever been, internal criteria laid down in the Legal Department as to when nolle prosequi may be entered and if so, what are they?
ATTORNEY GENERAL: Sir, administrative directions as to the procedures that should be followed in seeking the entry of a nolle prosequi exist. They do not set out the criteria applicable to the entry of nolles prosequi, nor the circumstances in which they should be entered.
MR. CHEONG: Sir, as someone who is not really familiar with law, I am puzzled by what the Attorney General has said that sometimes nolle prosequi is used in order to bring people to justice just in case charges are laid in the wrong court. Now could the Attorney General inform this Council that this particular criterion is very seldom used?
ATTORNEY GENERAL: I do not have the precise figures for the occasions on which a nolle prosequi has been entered because the wrong venue for the trial has been selected. Clearly the power is exercised only when there is no other alternative. As the law presently stands, the nolle prosequi is the only procedure available when charges have been brought in the wrong court. If I may add, Sir, once again this will be yet another aspect of this power which will be the subject of the review.