2. Prosecution not proceeding
According to Chapter 10 of the Prosecution Code, prosecutors have a duty to continuously review ongoing prosecutions. If a change in circumstances occurs and a reevaluation of the prosecution test shows that the evidence is no longer strong enough for a reasonable prospect of conviction or if the public interest no longer requires the prosecution, it should be discontinued.
Reversing a decision not to prosecute or to discontinue a prosecution is only justified in certain circumstances, such as when a clear error or oversight was made, significant unforeseen evidence emerges, the case is temporarily halted for further evidence gathering (with prior warning to the accused), or if the discontinuation was the result of fraud, dishonesty, or impropriety.
a. Offering no evidence
Under section 51A of the Criminal Procedure Ordinance, when the prosecution “offers no evidence”, it means that the Court must pass a verdict of “not guilty” and the prosecution cannot recharge that defendant with the same charge. It is in effect the same as an acquittal upon a trial on that charge.
The decision to pursue this course may be made by the prosecution if, for example, a key witness is no longer available to give evidence and thus there is no reasonable prospect for a proper conviction.
b. Leaving a charge on file
This procedure has been developed in practice and has no statutory basis. It has been developed because, on some occasions, the prosecution would like to preserve its position regarding the relevant charges in the future.
From a procedural standpoint, the prosecution can only leave a charge on file if the defendant has not taken plea regarding the offence charged and if no evidence has been called into the case. Hence, this procedure usually only takes place at the beginning of proceedings.
Furthermore, this procedure requires the Judge’s consent. It may also occur where the prosecution is unwilling to offer no evidence on a charge (which would lead to a defendant’s acquittal) but the defendant is willing to plead guilty to some of the other charges. In other words, it may take place as part of plea bargaining.
Where a charge is left on file, it is always a possibility that the prosecution will proceed with it again in the future, although the prosecution may be refused leave to proceed on the basis of unfairness to the defendant where a long period of time has elapsed.