TNAG-2210-FCO40-3170-Future-of-Hong-Kong-political-parties-1991 — Page 124

1991-01-21 10:17 SECURITY BRANCH

DJZ

"In my judgment it is a constitutional

imperative that the Courts do not attempt

the interfere with

to

discretion

to

Attorney General's

prosecute,

but once the

comes

before a Court

charge or indictment

for hearing, it can consider whether the prosecution should be allowed to continue

if grounds amounting to an abuse of process are raised."

The leading

on the in Hong Kong authority in

72 of 1990. subject is R v Harris Criminal Appeal No. There Silke V-P in his explanation of the law on abuse observed that the of process in the criminal field, decision to prosecute or not to prosecute is that of the 10), but went on to say Attorney General alone (at p.

to Court is entitled a

But it is a grave and

that "I accept 14): (at p. safeguard its process from abuse.

I

serious matter for a Court to refuse jurisdiction ... would accept that it is unnecessary for the appellant in order to succeed to prove prejudice."

Fuad V-P was concerned with the

public interests, and said (at p. 22):

balance of

"I agree

delivered by

with

Silke,

the judgment

V-P

just

but

with

one

respectful reservation.

I prefer not to

express an opinion on the question whether

or not the Attorney General

should have

resiled from his original decision not

prosecute Mr.

Harris.

This was,

to

in my

view, entirely a matter for the Attorney

General.

circumstances,

in

these

unusual

in my view,

He was,

entitled (and,