Dr Ping-fat Sze examines the reviewability of prosecutorial decisions & asks: are mistakes being made?
- In Hong Kong, prosecutorial decisions are unreviewable even if plainly wrong in law or contrary to the evidence, and a decision in disregard of the prosecution policy is not impugnable.
In Director of Public Prosecutions v Ziegler and others [2021] UKSC 23, [2021] All ER (D) 70 (Jun), the UK Supreme Court decided that an operational proportionality exercise had to be conducted if restrictions were imposed on the freedom of assembly.
In a recent case where the appellants had been convicted of unauthorised assembly, the final appeal court of Hong Kong unanimously rejected this decision on the ground that a different scheme for human rights protection obtained in the UK (see HKSAR v Ng Ngoi Yee Margaret & Others (2024) 13 HKCFAR 208; ‘Shame of British judge keeping free speech hero in jail’, The Independent, 14 August 2024).
This is surprising. Notwithstanding marked divergences in the constitutional framework, the
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