TNAG-2210-FCO40-3170-Future-of-Hong-Kong-political-parties-1991 — Page 128

1991-01-21 10:18 SECURITY BRANCH

852 868 5074 P.15

24

I might add the following observations,

are not in dispute:

which

(7)

(8)

(9)

In determining what amounts to a legitimate or reasonable expectation, the objective test is applied.

The burden of proof is upon the person

there asserts

an abuse who

is

of

process. Abuse of process is proved on a balance of probabilities.

It is within the Court's discretion to stay or not to stay a prosecution for reasons of abuse of process.

Counsel

for

the Crown

suggested

categories

of abuse

of

which process

have

five

been

considered by the Courts, namely, (i) unconscionable delay in prosecution, (ii) "double jeopardy", as in the case of Connelly v DPP (1964) AC 1254,

proceedings,

(iii) abuse of

(iv) improper

motives

for

committal prosecuting, (v) breach of bargain between the executive and the defendant, as in Re Bruneau and the Queen (1982)

69 CCC (2d) 200.

on A

In Scotland at least, a unilateral and public

the Lord Advocate to announcement by

relinquish his right of prosecution of a particular individual particular charge would render subsequent proceedings on see Thom v H.M. Advocate the same charge incompetent:

(1976) SLR 232. The High Court of Justiciary there left open the question as to whether the right to prosecute

}