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Opinion | LegCo Member Ted Hui Chi-fung may be liable for malicious prosecution

HK Current

2020.08.24 16:41

By Athena Kung

In June 2020, Magistrate Lam Tsz Kan sitting in Eastern Court allowed LegCo Member Ted Hui Chi-fung (hereinafter referred to as "Hui") to press ahead with 2 firearm-related counts, including "discharging ammunition with reckless disregard for other's safety" and "dealing with arms in a way likely to injure or endanger other's safety". Maximum sentence for both of the above firearm-related offences is 7 years imprisonment. In addition, another count of shooting with intent which is an offence punishable by life imprisonment was added to the case.

Hui's such legal action was initiated by private prosecution, which was against the police officer who opened fire during a riot in Sai Wan Ho on 11th of November 2019. At common law, like prosecuting authorities, all citizens have the same right to institute proceedings. As time goes by, subject to certain restrictions, private prosecution continues to enjoy a respectable position in modern schemes of criminal justice. In any event, the right of private prosecution is not absolute. A private prosecutor has 2 hurdles to surmount. Firstly, he must persuade a magistrate to issue a summons. Thereafter, so long as he wishes to retain control of the case, he may have to persuade the Department of Justice not to take it over.

When deciding whether to issue a summons, the magistrate who has a discretion should consider at least the following factors:
(1) whether the allegation is of the offence known to law, and if so, whether the essential ingredients of the offence are prima facie present;
(2) that the time limits have been complied with;
(3) that the court has jurisdiction;
(4) whether the informant has the necessary authority to prosecute;
(5) whether the allegation is vexatious.

Once the summons has been issued, like the case initiated by Hui, it is open to the Secretary of Justice to intervene, which may be with a view to continuing or terminating such private prosecution. To prevent the abuse of private prosecution, it is thus necessary to seek to achieve a balance between the citizen's right to prosecute and the responsibility of the Secretary for Justice so as to ensure that unworthy prosecutions do not proceed. Under section 14 of the Magistrates Ordinance, Cap 227, Laws of Hong Kong, the Secretary of Justice enjoys wide power of intervention and "may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings."

What has really happened on the day of incident on 11th of November 2019? According to "The footage of the shooting" which was a broadcast live in the Facebook by a bystander, an officer drew his sidearm in the district of Sai Wan Ho while trying to detain a masked man at a blockaded junction. Then, another masked man attempted to liberate the other, appearing to take a swipe at the officer's pistol before being shot in the midriff. After all, police could successfully detain both men onto the ground. The first man had a pool of blood next to him. His body limped as police officers moved him around. Apparently, the officers tried to tie his hands. The second man appeared to be conscious.

No doubt, according to the above footage, Hui's private prosecution is misconceived. Hui has completely turned a blind eye to the imminent danger confronted by the officer at the particular moment. With ulterior motives, Hui intentionally and wrongfully misled both the court and public by alleging that the police officer's such dedication and discharging his duty to maintain law and order during the riots amounted to abusing of police power and police brutality.

Obviously, Hui's private prosecution should have no prospect whatsoever of success. On the contrary, Hui's such an action even constituted an abuse of prosecution process. Justice can only be achieved by the Secretary of Justice's termination of Hui's private prosecution. It explains why the Department of Justice has applied to the court to intervene the case. A hearing date between 24th to 28th of August 2020 has been applied for the Department's making formal application to terminate the case in open court. Indeed, according to Article 63 of the Basic Law, the Department of Justice shall control criminal prosecutions, free from any interference.

May the police officer wrongfully prosecuted by Hui seek any legal remedy? Historically, the tort of "malicious prosecution" in English law refers to an unreasonable criminal prosecution. All along, malicious prosecution has been generally brought as an aftermath of unsuccessful criminal proceedings.

In Hong Kong, in the decisive authority of Pathak Ravi Dutt v Sanjeev Maheshwari [2015] HKCA 595, the Court of Appeal had summarized that in an action for malicious prosecution, the plaintiff must prove 4 essential elements:
(1) The Plaintiff was prosecuted by the Defendant, that is to say, the law was set in motion against the Plaintiff by the Defendant on a criminal charge ;
(2) The prosecution was determined in the Plaintiff's favour ;
(3) The prosecution was without reasonable and probable cause ; and
(4) The prosecution was malicious.

On the facts of the Hui's private prosecution case, following the intervention of the Department of Justice at the end of August 2020, it will be a case terminated by the Secretary for Justice instead of being ruled by the court with a verdict in favour of the police officer. Thus, it is advisable for the police officer to commence a tort of malicious prosecution action against Hui once the male shot by the police officer has been found guilty by the court. Then, the police officer may rely upon the male's conviction to support the assertion that his shooting under the particular circumstances was necessary and secure his civil claim against Hui.

The author is Barrister-at-law.

The views don't necessarily reflect those of Orange News.

責任編輯：CK Li
編輯：Whon

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