Too hot to handle
'Be you ever so high,' said Lord Denning, 'the law is above you.' Although it is shocking for the chief executive, Donald Tsang Yam-kuen, to be subject to criminal investigation by the Independent Commission Against Corruption over alleged favours from tycoons, it does at least show that nobody is above the law. High office, after all, is not a licence to do as one wishes, and it is reassuring for any society if its leaders can be held to account. In Germany, for example, Christian Wulff recently resigned from the state presidency to contest corruption claims, while, in the Philippines, former president Gloria Arroyo is fighting corruption allegations.
What is, however, truly alarming is that, in addition to Tsang, two of his former chief secretaries, Rafael Hui Si-yan and Henry Tang Ying-yen, are also being investigated by law enforcers. Whereas Hui is being investigated by the ICAC, over alleged bribery and misconduct in public office, Tang is being investigated by the Buildings Department, over an allegedly illegal basement at his property in Kowloon Tong. Although none of the trio has been charged with any offence, and may never be, it is unprecedented to have three such senior figures under a cloud of suspicion simultaneously. This requires great care by those who handle their cases.
In all the cases, the processes to be followed will be similar. The investigators will examine the allegations and ascertain the evidence, and, if necessary, obtain legal advice from the Department of Justice. Once each investigation is complete, the department will be consulted on the merits of prosecution. Given the sensitivity and the public concern, the department must do everything possible to ensure not only that justice is done, but that it is seen to be done.
As the secretary for justice, Wong Yan-lung, formerly served in government with Hui, he has rightly recused himself from the case. Any decisions on the case will instead be taken by the director of prosecutions, who has not previously dealt with Hui. However, Wong's decision to withdraw from Hui's case begs the question of why he has not also announced his disengagement from the cases of Tsang and Tang.
After all, if, in his department's words, it was necessary for Wong to withdraw from Hui's case 'to avoid any possible perception of bias or improper influence', why is this not also imperative in the other two cases? Indeed, Wong's dealings with the then chief secretary Hui, from 2005 to 2007, would have been less than his ongoing dealings with the chief executive and, until last September, when he resigned as chief secretary, with Tang.
Once the chief executive's case was referred to the ICAC, its commissioner, Timothy Tong Hin-ming, promptly announced that he would recuse himself, to avoid any possible conflict of interest, and the secretary for justice, who should have done the same, must now follow suit. After all, Wong, like Tong, was appointed to office on Tsang's recommendation, and they each report to him.
Wong is, moreover, the chief executive's legal adviser, and his prosecutorial role is inevitably compromised by his relationship with Tsang. If people are to have faith in the integrity of the legal system, Wong must not be involved at all in the chief executive's case, and the sooner he makes this clear, the better.
The secretary for justice, after all, must be consistent, and he cannot cherry-pick. If there is an actual or perceived conflict of interest, he must hand it over to the director of public prosecutions to process, or public confidence will suffer, as has already happened. Last year, several ministers were found to have illegal structures on their properties, but none was prosecuted, which makes things very difficult for the Buildings Department when it tries now to crack the whip. The education minister, Michael Suen Ming-yeung, for example, even ignored a demolition notice for five years.
It is little wonder that New Territories villagers feel aggrieved when the government talks tough over illegal structures, or that they feel there is one law for them and another for the high and mighty. Many people are watching closely to see how the secretary for justice conducts Tang's illegal basement case, and Wong must, without delay, assure the public that the case will be handled by the director of public prosecutions, and not by him.
These difficulties could, of course, have been avoided if Wong had heeded the calls to give the director of public prosecutions greater control over prosecution decisions, as has happened elsewhere. He has, regrettably, resisted change, and thereby became part of the problem. It will now fall to Wong's successor to adopt the reforms to the prosecution system, which the recent cases involving ministers and former ministers have shown to be essential.
Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors