Page 578 - Magistrates Conference 2019

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In Henry Liu and Feng Huang the Court of Appeal adopted the meaning of an abuse of
process which can be defined where ‘the prosecution has manipulated or misused the process

of the court or taken advantage of a technicality or where on a balance of probability the

accused has been or will be prejudiced in the preparation or conduct of his defence by delay
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on the part of the prosecution’ . In all matters within the Magistrates’ purview, he or she
must protect the court’s process from abuse which can directly affect fairness of the trial for
the accused or the litigant. In Bennett v Horseferry Road Magistrates’ Court and Another

1993] 3LRC 94, the court in its wisdom settled the conflicting views regarding whether

Magistrates possessed the power to exercise a stay of proceedings due to an abuse of process.
The court stated that where a Magistrate is exercising his or her power through its summary

jurisdiction or its power as an examining Magistrate (for example, within an extradition
hearing or a preliminary inquiry) that such Magistrate has the power to exercise control over

their proceedings through an abuse of process jurisdiction in relation to matters directly
affecting the fairness of the trial of the particular accused with whom they were dealing, such

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as delay or unfair manipulation of court procedures . Where a Magistrate orders a stay of
proceedings due to an abuse of process by the prosecution, this should not be done to exercise
any disciplinary function over the prosecution, but rather to ensure the accused is not

unwarranted pressured or receives an imbalanced trial.

Abuse of Process as being equally applicable to either party to proceedings

In the Jamaican case of Director of Public Prosecution v Senior Resident Magistrate for the
Corporate Area 2012] JMFC Full 3, at the heart of the complaint before the Supreme Court

was the fact that the subpoena was issued for an improper or ulterior purpose or purposes. It
was not sought for the bona fide purpose of obtaining relevant evidence. Its issuance amounts

to an abuse of the process of the Court.

In the Dominican case of Henry Liu and Feng Huang v The AG of the Commonwealth of
Dominica, The Director of Public Prosecutions and the Comptroller of Customs HCVAP
nd
2006/001 (Delivered September 22 2008) , the court agreed with the general settled position
that an abuse can exist where the prosecution has manipulated or misused the process of the

17 Henry Liu , Feng Huang v The Attorney General of the Commonwealth of Dominica, Director of Public
Prosecutions and Comptroller of Customs DM 2008 CA 6
18 This quote was coined in Hui Chi Ming v R [1991] 3 All ER 897
19 Bennett v Horseferry Road Magistrates’ Court and Another [1993] 3LRC 94, 110