Former top prosecutor Grenville Cross has broken his 15-year silence on a split in the Department of Justice over the controversial decision not to prosecute newspaper tycoon Sally Aw Sian.
Cross, who stepped down as director of public prosecutions in 2009, told the Sunday Morning Post he had advised there was sufficient evidence to prosecute Aw, but was effectively overruled by then-secretary for justice Elsie Leung Oi-sie.
"My position on the evidence was a difficult one. Although, on balance, my provisional view was that there was enough evidence to prosecute, I accepted, after discussion, that there was an alternative view, which was legitimately held," he said.
Aw, chairwoman of Sing Tao Holdings when the decision was made in 1998, was named as a co-conspirator in charges brought against three Hong Kong Standard newspaper executives.
The three executives were later jailed for their part in a plot to deceive advertisers by falsely inflating circulation figures.
The decision not to prosecute Aw sparked the first major legal controversy after the handover, with concerns it signalled the rich would receive preferential treatment from the authorities.
As well as a lack of evidence, the decision was taken on the ground that prosecuting Aw would not be in the public interest, because it might cause the collapse of her company with the loss of many jobs. Cross ultimately supported the decision on both grounds.
The former DPP spoke to the Post after being informed that the disagreement had now been confirmed from several sources, including the Department of Justice. He said he had not been as "gung-ho" as some colleagues on the strength of the case against Aw, regarding it as "borderline", but felt there was just enough evidence for a prosecution.
Cross knew this would be subject to a discussion with Leung, who had the final say under the Basic Law. "The buck stopped with her, not me," he said.
Asked if he was overruled, Cross said: "I was to an extent. But I also regarded it, to an extent, to be academic because I could see her decision had ultimately been taken on the basis of public interest."
He said: "The view Elsie took was one which was entirely open to her to reach, and was honestly arrived at and reasonable. I concluded, having considered her reasons, that she was acting in good faith, and ... was entitled to my endorsement.
"If I had thought Elsie was acting in bad faith, my position would have been intolerable, and I would have had to quit." He said it was significant Leung had agreed that if further evidence came to light she would reconsider whether to prosecute Aw.
Cross agreed with the secretary for justice on the public interest issue. "The potential loss of 1,900 jobs and the collapse of the Sing Tao group weighed very heavily with both of us," he said.
Cross, who since bowing out as DPP has campaigned for prosecution decisions to be taken independently by the top prosecutor, said: "As a result of this case, things changed substantially. [Leung] got to know me. She had far more confidence in me. She felt she could trust me. After that, she was pretty much hands off prosecutions. Things were basically left to me, even the sensitive cases," he said.
Leung told the Post she did not agree the DPP had expressed a different view to her.
She could not recollect exactly what her discussion with Cross was, although she did take his views on the evidence into account. "Sufficiency of evidence was the first consideration in my decision, but I also took into consideration public interest. Even if I made a mistake in applying the public interest test - which is not admitted - I would not have deviated from my decision not to prosecute on the first ground," she added.
Leung said she placed importance on the judgment of District Court judge Peter Line who convicted and sentenced the three newspaper executives in January, 1999. Line said he could not be sure on the evidence put before him that Aw had known of any fraud or deception.
She said: "Sally Aw's case was only one of the many decisions we [she and Cross] worked on together. As a newcomer to the department, I relied heavily on the guidance and assistance of my colleagues, not only the DPP.
"I am grateful to them for all the support and assistance they rendered me in fulfilling my duties as secretary for justice. As the head of the department, I understood that the accountability was mine whatever advice and guidance I received from colleagues."
The decision not to prosecute Aw, who was a member of the Chinese People's Political Consultative Conference and a family friend of then-chief executive Tung Chee-hwa, sparked a public outcry. Explaining her decision not to prosecute to Legco, Leung stressed political considerations had played no part.
Former government lawyer Andrew Bruce SC said he did not know enough about the facts of the Aw case to say whether the decision was correct. But the idea that job losses might flow from prosecuting Aw as a public interest justification deserved rigorous scrutiny, he added.
Bruce said it was difficult to imagine job losses being such a justification unless they were so immense and clearly established as to be overwhelming. He said it is possible that the public interest ground provided a convenient "way out" for officials who did not really want to prosecute Aw.
"If my view is right, damage was done. It was done because the team fell down at the first hurdle. The timing could not have been worse," he said.
Bruce added that prosecuting Aw could have sent out a "very powerful message" that no one is above the law.
University of Hong Kong law professor Simon Young said: "We should keep politics out of prosecutions and the best way of doing that is by having a certain degree of independence and transparency when there is intervention."
Aw, who sold her stake in Sing Tao in March 1999, declined to comment.