撤銷私人檢控案的準則

對於律政司司長應否介入私人檢控案, 又掀起爭論, 這普通法的私人檢控傳統, 在普通法施行的地方一直都保留着。我們聽慣了「普世價值」這講法, 所以我盡可能參考香港以外的例子。香港方面, 撇開律政司司長鄭若驊昨天在網誌的講法, 在律政司的《檢控守則》裏就有這描述:

7.4 決定是否接管私人檢控，有其考慮因素，其中包括以下各項︰

維護社會公義；
罪行的嚴重程度；
有利害關係一方的意見；
訴訟是否重複；
與律政司的決定是否一致；
是否有機會進行公平審訊。

律政司司長可同時考慮原來檢控一方的行為操守。

標少所處的新南威爾斯省, 也訂了相關的守則:

10 Taking over Proceedings [Furnished 20 October 2003; amended 1 June 2007] 

The Director may take over a matter pursuant to section 9 of the Director of Public Prosecutions Act 1986. Although the right of an individual to prosecute in the Local Court survives, the object of having a Director of Public Prosecutions is to ensure manifest integrity, neutrality and consistency in the making of prosecutorial decisions and the conduct of prosecutions.

Proceedings may be taken over if:

(i) the police officer-in-charge of the investigation so requests and there is a sound basis for doing so;
(ii) there is no reasonable prospect of conviction; 

(iii) they appear to be frivolous or vexatious or brought for an inappropriate ulterior purpose; 

(iv) they appear to have arisen out of a conflict of a predominantly civil nature and/or a civil legal remedy may be available; 

(v) they have been brought contrary to advice or a decision by the Director not to proceed; 

(vi) they have been instituted by police or a private person and there appears to be a conflict of interest or the risk of unfairness arising from their conduct of the prosecution; 

(vii) the public interest otherwise requires it, having regard (for example) to the gravity of the offence, its connection with another offence being prosecuted by the ODPP and all the surrounding circumstances; and/or 

(viii) an ODPP officer holding specific delegation pursuant to the Consolidated Instrument of Delegation and Orders approves the takeover. 

If such a decision is made the notices required by section 10 of the Act must be given expeditiously and before the next court appearance. Nevertheless, the mere act of appearing before a court in a prosecution or proceeding (including an appeal) in respect of an offence will constitute the taking over of that matter by the Director. In any such case an original informant disappears from the record (see Price v Ferris (1994) 34 NSWLR 704). Accordingly, after a matter has been taken over it cannot be returned to or conducted by or in the name of the original prosecutor. 

Before any matter is taken over other than in accordance with (viii) above and if time reasonably permits, it must be assessed and a decision made by the Director as to its future course (eg to continue or discontinue the proceedings).

ODPP Prosecution Guidelines (Office of Director of Public Prosecutions)

至於香港的殖民地老宗主的一套是這樣講的:

When to take over a private prosecution in order to stop it

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met.

There may be particular circumstances which would affect either the evidential or public interest stage of the Full Code Test that are peculiar to the private prosecution. Furthermore, there may be factors which would be damaging to the interests of justice if the private prosecution was not discontinued. Examples may include the following:

• cases where the prosecution interferes with the investigation of another criminal offence;
• cases where the prosecution interferes with the prosecution of another criminal charge;
• cases where it can be said that the prosecution is vexatious (within the meaning of section 42
• Supreme Court Act 1981, as amended by section 24 Prosecution of Offences Act 1985), or malicious (where the public prosecutor is satisfied that the prosecution is being undertaken on malicious grounds);
• cases where the prosecuting authorities (including the police, the CPS or any other public prosecutor) have promised the defendant that he will not be prosecuted at all (a promise of immunity from prosecution): Turner v DPP (1979) 68 Cr App R 70. This does not include cases where the prosecuting authorities have merely informed the defendant that they will not be bringing or continuing proceedings;
• cases where the defendant has already been given either a simple caution or a conditional caution for the offence (which remains in being), and the simple caution was appropriately given in accordance with the Adult Offender Simple Caution Scheme, or the giving of the conditional caution was in accordance with the Director's Guidance on Conditional Cautioning.

The Supreme Court in R (on the application of Gujra) v CPS [2012] UKSC 52 held that the CPS' approach to taking over a private prosecution with the intention to discontinue it, unless the evidential stage of the Full Code Test was met, was lawful and did not frustrate or emasculate the objects underpinning the right to maintain a private prosecution in section 6 of the Prosecution of Offences Act 1985. The case settled the matter following a series of cases including - R v DPP ex parte Duckenfield, R v Same ex parte Murray, R v South Yorkshire Police Authority and Another ex parte Chief Constable of South Yorkshire Police [2000] 1 WLR 55, Raymond v Attorney General [1982] 75 Cr App R 34.

(Private Prosecutions)

以上守則來自英國The Crown Prosecution Service 2019年10月的更新版。

上述3地的檢控守則來介入並撤銷私人檢控案件的準則作參考比較, 可見介入的準則大同小異。 若律政司司長介入撤控(甚至正在眾籌的「天下為公」的梁振英案), 律政司司長都有責任在立法會解釋清楚決定的理據。至於入稟申請私人檢控的申請人就需要格外留神, 因眾籌的私人檢控費用足以支付自己一方的律師費, 也要預留敗訴後要賠償對家的訟費, 還有可能再被被告一方索取惡意檢控的賠償, 到其時要考慮檢控的動機及有沒有向執法機構報過案等。

香港一直以來有多少私人傳票檢控是很難找到實際數字的, 但在Ng Chi Keung and Secretary For Justice(HCAL27/2013)一案, 李翰良法官處理的私人傳票司法覆核案其中一段提供了一些數據:

83. The statistics submitted by the respondent demonstrated this clearly. From 1996—2000, there were 30 applications for private prosecutions allowed by the magistrates, about 65 summonses were issued. From 2001 to 7 September 2013, there were 21 applications for private prosecutions allowed by the magistrates. There were 24 applications refused or withdrawn. A total of 41 summonses were issued. Throughout these years, the DPP took over and discontinued only two private prosecutions.[48]

參考該案時有一點要注意的是, 該案考慮的《檢控守則》是2013年修訂前的守則, 現在的守則(2013)在介入撤銷控罪的準則比以前訂得較寬鬆。畢竟當律政司司長介入, 考慮是否繼續檢控的準則會無異於一般的刑事案。舉西灣河槍擊案的私人檢控為例, 律政司司長介入就只能有一個結果, enter nolle prosequi。許議員若提司法覆核, 覆核許可不會批出, 上訴也會駁回, 屆時律政司提控的同一案情的另一案也會審完, 更無可能以同一案情進行二次檢控。

最近幾宗私人檢控, 看來只有陳志全提出的一宗律政司司長不會介入。