Prosecutorial decisions in Hong Kong: getting it wrong?

• 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