TNAG-2210-FCO40-3170-Future-of-Hong-Kong-political-parties-1991 — Page 125

1991-01-21

10:17 SECURITY BRANCH

11

852 868 5074 P.12

bound) to consider

whether the

public

interest would better be served by sticking

to his earlier decision or by directing the

prosecution

felt (and I

+o

continue.

He might have

assume that this is what

happened here) that the public interest demanded the latter course and that this

consideration outweighed any possible

erosion of confidence in the Attorney

General's decisions. It seems to me that

the public would have good reason to feel more concerned that the prosecution of

serious charge was not allowed to go forward simply because the Attorney General

obstinately adhered to a decision he was

later convinced was erroneous."

The important judgment of Richardson, J in the New Zealand Court of Appeal in Moevao V Department of Labour (1980) 1 NZLR 464 was cited with approval, and I note, in passing, the words of Richardson J quoted (at 25) in Fuad V-P's judgment: "Different persons may well have very different views as to what constitutes an abuse of process in the particular case."

P.

Kempster JA

stressed that the categories of

abuse are never closed, and observed (at p. 31):

"Overall the weight of authority in England and in the Commonwealth generally demonstrates that the courts may exercise a discretionary power to stay if the conduct of the prosecution amounts to abuse in that it results in an unfair trial, oppression or prejudice to a defendant in the conduct