Abuse of legal system a concern, says Zervos
But top prosecutor refuses to comment on whether the ICAC complaint that was lodged against Franklin Lam is a case in point
The city's top prosecutor yesterday agreed there was concern people might abuse the justice system for political purposes, but refused to say if he thought the Franklin Lam Fan-keung case was one such example.
Director of Public Prosecutions Kevin Zervos admitted it was a concern if people were motivated by other than a desire to ensure justice was being done.
"I am not saying it is not justifiable to lay a complaint and have the matter dealt with by the authority if there is a legitimate concern or complaint," he said.
Zervos' comments came as he explained why the department was not charging Lam, who resigned from the Executive Council yesterday over allegations of misconduct in public office and offering illicit advantages.
The prosecutor said the case had been "properly considered" and all evidence was "carefully evaluated".
Zervos said that he had come to the same conclusion as independent senior council Peter Duncan.
The allegation of misconduct arose from Lam's sale of two flats for HK$18 million in September and October last year, just weeks before the government introduced a new stamp duty to cool down the property market.
The sale landed him a profit of about HK$10 million. He was later suspected of having made use of insider information.
His wife was also accused of offering extra commission - the difference between the asking and transaction prices - to a Centaline agent. The agent rejected the offer because it was not usual practice.
Zervos said Lam had put the flats on the market as early as June and he was out of town when the Executive Council discussed the cooling measures.
The top prosecutor disagreed that the extra commission offer was an offence. "It is not an offence if your principal is aware of it. That is not illegal. It is a question of disclosure," he said.
Zervos said the principal referred to the other party in the transaction, as well as the property agency.
Lam Cheuk-ting, who brought the case to the graft buster, said he felt "powerless" over the decision not to prosecute
A former corruption investigator and now the chief executive of the Democratic Party, he was the first to lodge a complaint with the Independent Commission Against Corruption.
"Lam might have withheld his previous remarks or just remained silent while being questioned by the ICAC," he said, adding "this might make it impossible to obtain the crucial evidence to press charges".
Lam Cheuk-ting said he still believed the former executive councillor had lost his credibility and resigning was his only option.
Legal expert Eric Cheung Tat-ming said he accepted and respected Zervos' decision not to press charges.
"This is not a clear-cut case. The facts disclosed do not point to any particular offence," said Cheung, a principal law lecturer at the University of Hong Kong.
"The Department of Justice has sought external legal advice and Zervos has reviewed the evidence. It has done all that is required."