TNAG-2210-FCO40-3170-Future-of-Hong-Kong-political-parties-1991 — Page 123

1991-01-21 10:16 SECURITY BRANCA

802 000 074

The

imstances, a practice has been established whereby

breaches and continued breaches of the law would not

encounter anything worse than a warning. appellants, and any one who takes part in demonstrations may therefore be forgiven for arriving at the conclusion that warnings will not be followed by prosecution even if the warnings were ignored.

The question which now has to be considered is

whether the prosecution in the present case amounts to

an abuse of the Court's process.

situfation

Lord Fraser, in C.C.S.U. v Minister for Civil

Service (1985) 1 AC 372 said (at P. 401B) that लै legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice (my emphasis) which the claimant can reasonably expect

to continue. In such a situation the Courts may well find the public authority guilty of abuse of process if

it chose to go back on the promise or practice so as

defeat the claimant's expectation. It seems that the

rationale behind this proposition is one of fairness.

However, it is for the executive and not the Courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness (see pp.

413B, 420D, 403D, 406G, 407G, 412H -

4 23 B

-

4243).

to

Fuad, V-2, in Keung Siu Wah v the Attorney General Civil Appeal No. 112 of 1989 referred to the law on the abuse of process in the criminal field as still a developing and unsettled area of the law. He said: