Justice Department spat led to lengthy court battle
A row within the Department of Justice was the reason a senior public prosecutor deleted documents relevant to a criminal case, which prompted a series of appeals to end the prosecution, the Court of Appeal has ruled.
The court drew that conclusion in dismissing an appeal by three businesspeople against a Court of First Instance decision to throw out their application for a judicial review.
Kelly Cheng Kit-yin, former vice-chairwoman of Hong Kong-listed Yueshou Environmental, her daughter Carmen Cheng Wei-ming, and Ip Kin-man, a former director of the firm, had asked the Court of First Instance to review a District Court's refusal to grant a permanent stay of prosecution against them on the basis that deletion of the files meant they would not have a fair trial.
Kelly Cheng, 57, Carmen Cheng, 37, and three other directors including Ip are charged with conspiracy to defraud various banks for the issue of letters of credit and of money laundering.
Dismissing the appeal, Mr Justice Frank Stock said he accepted that Gavin Shiu, senior assistant director of public prosecutions, deleted the files because he was at odds with his superiors.
Shiu's superiors at the time included former director of public prosecutions Kevin Zervos and Deputy DPP Wesley Wong.
According to the judgment, Shiu deleted the files from the Department of Justice document management system after the defendants filed an application for a stay of prosecution.
Days before the deletion, Wong wrote to Shiu, asking him for a detailed written explanation of the defendants' claims.
In reply, Shiu wrote: "I ask in what capacity do you write to me? … Are you writing as a representative of my employers?"
Later, Zervos wrote to Shiu and asked him to comply.
Shiu earlier told the District Court he deleted the files because he wanted any requests for the files to come directly to him.
"[There] is much to support the notion that the deletions were [the result of] strife between Mr Shiu and his superiors," said Stock, describing Shiu's behaviour as unacceptable.
"[It] is clear enough that he was saying that his motive had nothing whatsoever to do with the merits of the prosecution or of the stay application," Stock said. "Rather, it was a move in protection of himself against what he perceived to be high-handedness by senior officers in the department."