'Evidence did not justify fraud charge'

There was no reasonable prospect of convicting Sally Aw for circulation fraud, the justice chief argued yesterday.

It would therefore have been wrong in principle to prosecute her.

In her 14-page statement to the Legco panel on administration of justice and legal services, Secretary for Justice Elsie Leung Oi-sie rejected suggestions that she should have prosecuted Ms Aw provided there was 'some evidence against' her.

'No one must be subjected to a criminal trial unless clear evidence exists to justify that course.

'To initiate a prosecution simply to exonerate the Secretary for Justice from suspicion when there is not sufficient evidence to provide a reasonable prospect of conviction would amount to a miscarriage of justice,' said Miss Leung.

She also rejected views that since Ms Aw stood to benefit from the crime she must have been responsible for it.

Although Ms Aw was named as a co-conspirator in the Hong Kong Standard circulation fraud, Miss Leung said the crime required agreement between two or more people to commit an unlawful act, with the intention of carrying it out.

'As the evidence against Ms Aw did not satisfy these criteria, even when taken at its highest, I was not prepared to proceed upon the basis of surmise.' Giving the first account of how she reached the decision last March not to prosecute Ms Aw, Miss Leung said there was no evidence to implicate Ms Aw on the substantive charges of false accounting of which the three former and current Hong Kong Standard executives were convicted.

The record of Ms Aw's interview with the Independent Commission Against Corruption - sections of which were revealed by the Post after the trial - had to be looked at in its entirety.

'Suffice to say, that the interview had to be examined as a whole - and there were 224 questions and answers - and not by reference solely to one or two answers.

'By looking at the record in its totality, I concluded that although Ms Aw wished to raise the circulation figures of the two newspapers to attract advertisers, she repeatedly emphasised that she had no intention to deceive ABC [Audit Bureau of Circulations], which was one of the overt acts alleged against the three defendants who were charged.' She said Ms Aw was ignorant of the details and left such matters to Henrietta So, one of the three convicted.

'My firm impression was that whatever was put in place by the three defendants went wholly outside anything that Ms Aw had ever contemplated,' Miss Leung said.

'When told by the ICAC of what had been done, Ms Aw made plain she had no idea that it constituted false accounting and insisted instead that she would not have allowed this had she known of it.' From the record it emerged that when Ms Aw was advised by the ICAC in August 1996 that what had occurred was not lawful, she ordered the printing of extra copies to stop.

'Ms Aw should perhaps have exercised greater supervision and control of her subordinates.

'She also perhaps acted unwisely in going along with a vague and what she called a 'temporary' scheme to assist sales, without getting chapter and verse as to what exactly was in contemplation, and without properly evaluating the potential implication, and without properly evaluating the potential implications of that to which she was agreeing.

'However, she said she was not aware of the illegal acts which her subordinates, as the judge was to find, initiated, and she told them to stop when advised of them. There was nothing to contradict any of this.' Miss Leung said that she had looked repeatedly for any evidence to link Ms Aw to various overt acts alleged in the particulars of the conspiracy against the three defendants but she had searched in vain.

The justice chief said she was not convinced, having examined the case objectively, that the conduct of Ms Aw was fraudulent.