5.27.
Recent cases in Hong Kong involving the discretion to prosecute for certain summary offences have raised the question as to whether there has been selective prosecution of certain defendants. I am concerned that something has actually gone wrong in Hong Kong in this regard, if only in the official communication of an idea to the PRC at the political level. It is clear that the potential possibilities of abusive prosecution will be minimised if under the equal protection clause of the Hong Kong Bill of Rights the defence of "selectivity in the exercise of the prosecution power" will be held by the courts to be a defence to a charge of crime; but relevant facts are difficult to prove. Some other common law jurisdictions admit the defence. the law of the State of New York, for example, a court might consider the following propositions, among others: -
[1]
[2]
Under
"Mere selectivity in prosecution, in and of itself, creates no
constitutional problem. To sustain a defence of selective enforcement, a defendant must make a prima facie showing of intentional and purposeful discrimination. He must establish not only that the state has proceeded against him and not against others similarly situated, but also that he was selected as an enforceable target for constitutionally impermissible reasons such as ... the desire to prevent his exercise of constitutional rights However, the settled
judgment of prosecutors over a long period of time, particularly in relation to a statute that, at best, is ambiguous, while not dispositive, does carry weight, as does the fact that it is unfair to suddenly invoke criminal sanctions against those who have every reason to suppose that their conduct was lawful."
"The test of whether a prosecutor has made reasonable
classification is judged along the traditional lines of permissible prosecution discretion, i.e. police resources, the social value of the particular conviction as against the time and expense to the state, the value of a striking example, and, in addition, of whether the particular classification bears a rational relationship to the broad purposes of the criminal law and is reasonably related to law enforcement objectives. If such test is met, the
53 classification will not be arbitrary or unjustifiable.
What needs to be noted is the effect when non-violent political speech constitute the facts in issue.
5.28.
I have received information from government and defence lawyers concerning a recent prosecution which I find of concern, but I am not yet in a position to make any comment in substance. However, I note the following passages in Commonwealth and Colonial Law by Sir Kenneth Roberts-Wray, where the author quotes Shawcross when Attorney-General saying of his discretion:-