Have never shirked responsibility

PUBLISHED : Friday, 05 May, 1995, 12:00am
UPDATED : Friday, 05 May, 1995, 12:00am

THE Honourable Ronald Arculli ('So, who's holding the purse strings?', South China Morning Post, May 4) asked a very important question - If the Attorney General, who is the head of the department, does not accept responsibility for the department, how can improvements be made? Let me make it absolutely clear: as head of the Legal Department, I accept ultimate responsibility, as I always do, for what the department does and what goes on in it.

I have never disclaimed or shirked that responsibility. That is why I initiated the internal audit which is being discussed by the Legco Panel on Administration of Justice and Legal Services. That is why I am accountable to the Legco Panel and the Public Accounts Committee to answer questions and criticisms.

I have already taken action to address many of the shortcomings which have been identified and I am looking at ways to deal with the others.

While Mr Arculli is correct in saying that someone is ultimately responsible for the department, he then went on to say that my preference to lay the decision for paying legal fees on dedicated and loyal civil servants in the Legal Department seems to suggest that I am not in charge but that a group of unknown civil servants are.

I should point out that decisions as to the briefing out of prosecution work, including fee negotiation and financial arrangements, are matters for the Director of Public Prosecutions. The post is ranked at a level equivalent to the head of a major department and the Director properly has the authority to handle such matters independently. He is in fact best placed to deal with such operational matters. But, I repeat, the ultimate responsibility is mine.

I would also like to respond to what Mr Hedley Thomas ('The flaws in Mr Mathews' case', Post, May 3) wrote about the findings of the internal audit report on fees paid to counsel handling the Bumiputra Malaysia Finance Ltd (BMFL) case. The arguments made by Mr Thomas have distorted some of the report's findings.

Mr Thomas said the internal audit is but a simple strategy used by senior civil servants everywhere as a whitewash. The fact is that I recognised the concern expressed by the Legco Panel on Administration of Justice and Legal Services over the amount of fees paid and therefore ordered the audit to get at the facts. Anyone who has read the 78-page report would agree that the exercise is a genuine fact-finding inquiry and not a whitewash.

Mr Thomas questions my remark that a major finding of the report is that there is no evidence to suggest that Graham Grant was paid in excess of the fees that were agreed or that he did not work the hours that he claimed. Mr Thomas wrote that a major finding of the report is that the fees paid to Mr Grant after he left the Legal Department were over-generous, and that Kenneth Somerville, the author of the audit report, could not determine whether Mr Grant did work the hours that he claimed.

On the first part, according to the report, Mr Grant did not charge more than the fees that were agreed, apart from an overpayment of $13,200 which it describes as being 'inadvertently charged'. Whether those fees were over-generous is a separate issue.

As regards whether Mr Grant worked the hours claimed, it should be noted that although the audit team was unable to make a conclusive assessment, their review, on a simple basis, did not produce any evidence that Mr Grant did not work the hours claimed and the hourly claims by leading and junior counsel are remarkably consistent in their respective invoices.

The report states that 'these figures provide persuasive corroboration for Mr Grant's charges during this period which include the two longest daily charges recorded: 161/2 and 171/2 hours'.

This is the exact opposite of what Mr Thomas reported in his article (Post, May 1): 'As the two (Mr Grant and his leading counsel) worked together and were in almost constant telephone contact, Mr Somerville said 'one would expect therefore that their fee notes would closely correlate with each other.' But this was not the case.' Mr Thomas also queried my remark that capping Mr Grant's fees rather than paying him according to hours worked would not be much less than what he had been paid. He wrote that Mr Somerville begged to differ and found that $300,000 a month 'while still high was much closer to the mark in terms of a reasonable level of fees for junior counsel . . . ' for 1993 budget estimation purposes.

The figure of $300,000 a month mentioned in the report was a pre-estimate for one short period in the case. There is no evidence of how that figure was calculated. Our figures of what a cap might have produced if it had been imposed after six months, as suggested by the report, were based on the lower of the two court day fees actually agreed and on a 71/2-hour day on non-court days.

Mr Thomas suggested that my remark that 'What the report says is that the senior management expressed concern about escalating costs and took measures to halt rising costs with some considerable success' is misleading. Although he acknowledged that the report states that senior management expressed concern about escalating costs, he then stated that in the main the measures failed. Again Mr Thomas has not fairly represented the findings of the report. The report lists four measures taken by management to limit costs: the reduction of hours spent by the solicitors on the case; the reduction in the number of counsel attending the Malaysian hearings; the fixing of a date for the transfer of the proceedings to the High Court under the Complex Commercial Crimes Ordinance; and the allocation of discrete tasks to counsel. The report states that 'those measures undoubtedly achieved significant cost savings' and it was only the allocation of discrete tasks that proved unsatisfactory.

In an earlier article, Mr Thomas ('Case for censure', Post, April 28) reported that the Legal Department has been favouring lawyers who formerly worked in the department by giving them plum cases to handle. I respond to that allegation as follows: In the three years between 1992 and 1994, a total of 3,565 criminal cases were briefed out by the Legal Department to counsel in private practice, amounting to a total of $336 million. Out of these cases, only 173 cases, or 4.9 per cent, were given to former Legal Department counsel who left the department during the same period, costing a total of $32 million, or 9.5 per cent of the total briefing out costs. This sum includes the fees paid in the BMFL case.

If we do not include this case, the sum spent on briefing out to former Legal Department counsel amounts to only 4.4 per cent of the total cost spent on briefing out, which is about the same percentage in terms of cases given to former Legal Department counsel.

Since January 1 this year, a moratorium of six months has been in place against any counsel leaving the Legal Department receiving a brief from the Crown, save for exceptional circumstances.

For some years, the Legal Department has been supplying the Chairman of the Bar Association with a monthly report showing details of prosecution cases briefed out to the private Bar. I started this in order to demonstrate that there is no favouritism in the allocation of work.

J. F. MATHEWS Attorney General