1. Private prosecution

1. Private prosecution

It is a common law right for a person to bring a private prosecution. Chapter 7 of the Prosecution Code governs private prosecution. Under this regime, an individual has the right to initiate a criminal case in the public interest. Besides, section 14 of the Magistrates Ordinance (Cap. 227) enables a complainant or informant (i.e. someone other than the Secretary for Justice) to conduct the prosecution personally or with the help of a lawyer.

However, under section 8 of the Magistrates Ordinance, a Magistrate can refuse to issue a private summons for good cause. This means that the fact that an individual wishes to commence criminal proceedings does not mean that he will be allowed to, nor that if begun they will be permitted to continue.

Besides, the Secretary for Justice has the authority to intervene in a private prosecution at any stage and take over its management, essentially replacing the original prosecutor. If the Secretary for Justice decides not to continue the proceedings initiated privately, they may do so by refusing to sign the charge sheet or indictment (under sections 74 and 75 of the District Court Ordinance (Cap. 336) and section 17 of the Criminal Procedure Ordinance). In this regard, the Secretary for Justice can also discontinue a private prosecution where there is no reasonable prospect of conviction or where it is in the public interest to do so. 

The decision on whether to intervene is made based on factors outlined in the Prosecution Code. These factors include considerations of public justice, the seriousness of the offence, the opinions of involved parties, avoiding duplicate proceedings, consistency with decisions made by the Department of Justice, and the likelihood of a fair trial. The Secretary for Justice may also consider the conduct of the original prosecutor when making this decision.