CONFIDENTIAL
151444
MDHIAN 0340
UNFAIR. THERE WAS NOTHING TO SHOW THAT THE PUBLIC INTEREST OUTWEIGHED FAIRNESS IN THIS CASE. A CASE OF ABUSE OF PROCESS WAS MADE OUT THEREFORE AND THE CJ RULED THAT THE TRAIL MAGISTRATE SHOULD HAVE EXERCISED HER POWER TO STAY THE PROCEEDING.
ASSESSMENT
5.
OUR WORRY IS THAT THE FUSION OF THE DOCTRINES OF LEGITIMATE EXPECTATION AND ABUSE OF PROCESS AS EMBODIED IN THE JUDGEMENT AMOUNTS TO AN INDIRECT JUDICIAL REVIEW OF THE DECISION TO PROSECUTE. IT WOULD APPEAR THAT THIS EXTENSION OF THE DOCTRINE OF THE ABUSE OF PROCESS COULD HAVE IMPORTANT IMPLICATIONS FOR PROSECUTORIAL POLICY. ON THIS GROUND ALONE, WE CONSIDERING WHETHER IT WOULD BE APPROPRIATE TO TAKE THIS CASE TO THE PRIVY COUNCIL.
6.
THE JUDGEMENT WAS WELL RECEIVED BY THE MEDIA AND BY LIBERAL POLITICIANS. THE LOCAL PRESS HERALDED IT AS AN AFFIRMATION OF THE RULE OF LAW AND INDEPENDENCE OF THE JUDICIARY. THEY CONSIDERED
THAT IT WOULD HAVE POSITIVE EFFECT ON LOCAL CONFIDENCE IN THE LEGAL SYSTEM. THEY ALSO CALLED FOR REPEAL OF THE RELEVANT
PROVISIONS OF THE SUMMARY OFFENCES ORDINANCE.
7. THE CHINESE HAVE NOT (SO FAR) EXPRESSED ANY CONCERN TO US
ABOUT THE POSSIBLE EFFECT OF THIS JUDGEMENT. IF THEY DO SO, WE WOULD EMPHASISE THE FACT THAT THE JUDGEMENT DOES NOT AFFECT THE POWER OF THE POLICE TO ENFORCE THESE PROVISIONS.
8.
IN PRACTICE, HOWEVER, THE POLICE WOULD UNLIKELY SEEK TO USE
SECTION 4(29) AGAIN IN VIEW OF THIS JUDGEMENT. WE HAVE IN ANY
CASE BEEN CONSIDERING WHETHER WE SHOULD REPEAL THIS SECTION, WHICH OVERLAPS WITH OTHER PROVISION IN THE PUBLIC ORDER ORDINANCE
AND THE NOISE CONTROL ORDINANCE.
9.
WE WILL REVERT TO YOU ONCE WE DECIDE ON WHETHER TO TAKE THE
CASE TO THE PRIVY COUNCIL AFTER CONSIDERING THE POLITICAL
IMPLICATIONS INVOLVED.
WILSON
YYYY
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