TNAG-1854-FCO40-2629-Legislative-Council-of-Hong-Kong-memoranda-and-minutes-of-me-1989 — Page 230

HONG KONG LEGISLATIVE COUNCIL 18 January 1989

香港立法局 一九八九年一月十八日

36

MR. TAI: Sir, will the Attorney General inform this Council whether he sees it fit to exercise this power to terminate a criminal proceeding in matters relating solely to evidence?

ATTORNEY GENERAL: I am not quite sure what the point is that Mr. TAI is getting at. All cases involve evidence. I have given a range of examples to illustrate the type of cases in which nolles prosequi are entered. The facts and evidence of each case must be considered before the decision is made.

MR. ARCULLI: Will the Attorney General inform this Council, in respect of the 49 occasions in 1986, the 23 in 1987 and the 23 last year, how many of those cases fall within the three circumstances that he described, and how many outside, and what are those other circumstances?

ATTORNEY GENERAL: I do not have the breakdown of these figures. I would consider to what extent consistent with the principles that I have mentioned earlier in my main reply I can supply a breakdown of this type as asked for by Mr. ARCULLI. (Annex VI)

MR. LI: Sir, can the Attorney General inform this Chamber how many times he was consulted by his colleagues before they granted this?

ATTORNEY GENERAL: It has not been the practice to require prior consultation on the entry of nolle prosequi, nor is there the requirement that they subsequently be reported to me. Of course, the Crown Prosecutor and his deputies are not precluded from consulting me on occasions, and have done so when necessary.

MR. MARTIN LEE: Sir, is the power to enter nolle prosequi a prerogative power or is it a statutory power, and likewise is the power to delegate a prerogative power or a statutory power?

ATTORNEY GENERAL: Sir, the power of the Attorney General to enter a nolle prosequi in cases in the High Court is a common law power, and therefore within the prerogative. In respect of cases in the district court and the magistracies, there are specific statutory provisions in their respective Ordinances that confer the equivalent power. The power to delegate is contained within section 7 of the Legal Officers Ordinance, and is drawn in terms referrable both to statutory and common law prerogative powers.