CY Leung case didn't warrant outside legal advice, Cheng insists

January 17, 2019 16:50
Justice Secretary Teresa Cheng speaks to media after attending a Legco meeting on Wednesday where she was grilled by lawmakers over the DoJ’s decision to abandon a case against former Hong Kong leader CY Leung. Photo: HKEJ

Justice Secretary Teresa Cheng Yeuk-wah again defended her department's move to decide on its own, without seeking outside legal advice, to drop a corruption case against Hong Kong's former leader Leung Chun-ying.

Appearing before the Legislative Council on Wednesday, Cheng said her department officials take prosecution decisions independently and that outside legal counsel is sought only in rare cases. 

It is not the usual practice to seek out external legal advice, she said, adding that the Leung case did not merit a break from the tradition. 

Grilled by lawmakers over the controversial decision of the Department of Justice (DoJ) to not press charges against Leung over his financial dealings with an Australian firm, Cheng insisted that the department was fully justified in deciding on its own that there was no need for legal action.

There was not enough evidence in the case to warrant legal proceedings against the former leader, or even to seek the counsel of outside lawyers, the justice chief said.

Leung, who held Hong Kong's top political post for five years until end-June 2017, had been accused of failing to make proper disclosures in relation to HK$50 million payments he received from Australian engineering firm UGL many years ago.  

In response to a question raised by pro-democracy lawmaker Eddie Chu hoi-dick in the Wednesday meeting, Cheng pointed out that Article 63 of the Basic Law provides that the DoJ "shall control criminal prosecutions, free from any interference".

The Prosecution Code, she added, stipulates that “a prosecutor must not be influenced by “any investigatory, political, media, community or individual interest or representation”, “the possible political effect on the government, any political party, any group or individual”, as well as “possible media or public reaction to the decision”.

As there was no issue of bias or conflict of interest, the DoJ saw no need to seek the advice of outside counsel in relation to the Leung case, she said.  

It is appropriate for the DoJ to seek outside counsel’s advice only when a case involves the department staff, Cheng said, according to the Hong Kong Economic Journal.

On Dec. 12, the DoJ announced that it will not initiate prosecution against Leung, who is currently a vice chairman of the National Committee of the Chinese People’s Political Consultative Conference, China’s top political advisory body, over his undeclared acceptance of HK$50 million from UGL, saying there was insufficient evidence.

One of the contentious points in the decision was that DoJ did not seek independent legal advice in the UGL case.

Cheng said the prosecutions division of the DoJ had provided 13,000 items of legal advice each year over the past three years, and only once, in 2017, was outside advice obtained.

Pointing out that the Prosecution Code provides only six situations, including the one that “it is deemed appropriate to obtain independent outside counsel's advice or services so as to address possible perception of bias or issues of conflict of interests”, in which the DoJ may resort to independent outside advice, the justice chief stressed none of them applies to the UGL case.

Civic Party lawmaker Tanya Chan Suk-chong said she doubted the DoJ could make an impartial decision on the UGL case without fear or bias.

She pointed out that Cheng had chaired the Transport Advisory Committee from 2004 to 2010 and would have periodically reported to the Executive Council, a body where Leung had been the convenor.

In her reply to Chan, the justice secretary said she couldn't recall the exact years of her stewardship of the Transport Advisory Committee, and that any question of bias must be seen from the legal point of view.

Not satisfied with Cheng’s defense, the democrats raised a placard with a message in Chinese that read “Natural enemy of rule of law”. The opposition groups also chanted protest slogans when the justice chief left the chamber.

After the Legco meeting, Cheng was asked by media as to why Leung had been spared prosecution but not his predecessor Donald Tsang Yam-kuen, who was convicted in 2017 for misconduct in public office.

Saying that she won't comment on individual cases, Cheng reiterated, citing the Prosecution Code, that an individual's privacy should be respected. If any form of “public trial” happens to citizens, it won't be good for the cause of justice, she added.

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