Timely lesson in the virtue of impartiality

PUBLISHED : Saturday, 14 December, 2002, 12:00am
UPDATED : Saturday, 14 December, 2002, 12:00am

How ironic that judgment in the case of former Allied Group chairman Lee Ming Tee was delivered on the same day that the government announced its target date for the new Securities and Futures Ordinance to take effect. The ordinance greatly expands the authority of the Securities and Futures Commission, giving it draconian powers of investigation and prosecution. Yet with power comes responsibility. Yesterday's Allied judgment raises fundamental questions over whether the commission is ready and able to exercise those powers justly and fairly.

The Allied case, one of the biggest commercial crime investigations Hong Kong has seen, has been a 12-year catalogue of blunders, misjudgments and over-zealousness by the prosecutorial authorities. Yesterday was no exception. In his landmark ruling granting a second permanent stay of proceedings, Mr Justice Conrad Seagroatt roundly condemned the SFC, accusing it of malpractice in effectively burying an investigation into a key witness that could have undermined the case against Mr Lee.

A basic plank of the right to a fair trial is that information that is available to the prosecution must be shared with the defence. The prosecution's case against Mr Lee was built on the evidence of an expert witness, ICEA chief executive Meocre Li. During the course of the Allied saga, Mr Li came under investigation by the SFC for his role in questionable dealings by two companies, Guangdong Kelon and Kin Don Holdings. The Department of Justice did not tell the defence this, because the SFC did not tell the department. Had they been aware of the investigation, Mr Lee's lawyers would have had a field day.

The failure to disclose the investigation caused the second Allied trial to collapse in March, after four and a half months, and Mr Justice Seagroatt yesterday declined to allow a third. His ruling strengthens the right to a fair trial, extending the standard of disclosure to all prosecuting authorities, including agencies such as the SFC, and making clear that disclosure is a continuing obligation.

His judgment also serves notice on the SFC that it must be scrupulously impartial in how it exercises its powers, a warning that assumes ominous significance with the new ordinance due to take effect on April 1.

After a decade and more than $100 million spent, the Department of Justice refuses to give up the Allied ghost and now plans to take the case to the Court of Final Appeal. The government's conduct of the case (stretching through colonial to post-handover administrations) has been so irretrievably accident-prone that this is likely to result only in further embarrassment. Any further public money should be spent on finding out why the authorities pursued the approach they did, who should be held responsible, and learning the lessons to avoid a repeat.