Teresa Cheng should have sought independent counsel for CY Leung’s case – that she didn’t is worrisome

  • Grenville Cross says policy and precedent are clear: the Justice Department should have sought an outside opinion, and Teresa Cheng’s answer for why she didn’t suggests she’s uniformed
PUBLISHED : Wednesday, 02 January, 2019, 5:04am
UPDATED : Wednesday, 02 January, 2019, 8:09am

In February, when the Legislative Council’s panel on the administration of justice and legal services convened, the Department of Justice provided it with a policy statement titled “Briefing out cases of the Department of Justice”. Under the subheading “briefing out policy”, the department described the six situations in which criminal cases are contracted out to private lawyers for advisory or trial purposes. 

The first situation involves cases where there is a need for expert advice which is not available within the department itself. In the second, a case may be briefed out to a private lawyer where the department has no suitable counsel available to appear in court. Third, the size, complexity and length of a case may necessitate briefing out.

Fourth, it may be required “to address possible perceptions of bias or issues of conflict of interest”. Fifth, briefing out may be necessary to ensure continuity and economy, as where a departmental prosecutor who has been handling a particular case moves into the private sector.

The sixth situation arises where someone in the Department of Justice itself is suspected of a crime and an outside opinion is sought so that justice can be seen to be done.

The fourth principle is adopted in politically sensitive cases, as where public figures are criminal suspects, and it has been applied consistently since 1997 by all previous secretaries for justice: Elsie Leung Oi-Sie, Wong Yan-Lung and Rimsky Yuen Kwok-keung.

Thus, for example, Leung applied this approach when financial secretary Antony Leung Kam-chung was suspected of tax improprieties. Wong obtained independent legal advice when members of then-Zimbabwean president Robert Mugabe’s family were accused of assaulting journalists. Finally, Yuen did the same thing when the evidence against former chief executive Donald Tsang Yam-kuen needed to be evaluated.

The reason Leung, Wong and Yuen all sought independent legal advice in politically sensitive cases was not that the department’s own prosecutors could not decide on the cases, but to reassure the public that the suspect was not receiving preferential treatment because of his or her elevated status.

If independent legal advice was obtained, it also helped to shield the department itself from possible allegations of bias if a decision was ultimately taken not to prosecute.

Justice suffers as distrust of Teresa Cheng deepens

Of course, even where outside advice was obtained, the final decision on the case would still be taken by the department, albeit having had the considerable benefit of an independent legal opinion.

This policy has helped the department enormously over the years in sensitive cases, and it therefore surprised many people last month when current Justice Secretary Teresa Cheng Yeuk-wah announced it had not been followed when the department decided not to prosecute former chief executive Leung Chun-ying, who had been under a prolonged investigation by the Independent Commission Against Corruption for receiving HK$50 million from UGL.

Leung’s situation quite clearly fell squarely within briefing out principle No 4, yet when Cheng was asked why independent advice had not been sought, she could only refer to principle No 6, claiming this was only necessary when someone from within her own department was suspected of committing an offence.

Briefing out principle No 6 was, of course, irrelevant to Leung’s situation, and Cheng’s answers suggested she was unfamiliar with the briefing out policy of her own department.

Cheng is new to public prosecutions, and one possible explanation is that her own prosecutors had not briefed her properly on how the department has always handled politically sensitive cases, which is obviously concerning.

Although some people have claimed that outside legal advice was not required in the Leung case, this flies in the face of historical precedent.

It also disregards the collective wisdom of the former justice secretaries, all of whom appreciated that an independent perspective in politically sensitive cases is absolutely vital if the department’s final decision is to command public confidence.

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Although it is true that ICAC cases are scrutinised by its Operations Review Committee, which contains several lawyers, its mandate is confined to ensuring that the ICAC itself has properly investigated its cases, and it exercises no oversight over legal decisions.

It cannot challenge, let alone reject, the Department of Justice’s advice on a case, even if it disagrees with it. This is because, under Basic Law Article 63, the control of criminal prosecutions is vested solely in the department, “free from any interference”.

There will be great sympathy for Leung himself. After the strain of an investigation which lasted an unprecedented four years and two months, he was fully entitled to have had his case processed in accordance with standard procedures, and to be free of further controversy.

Even now, however, Cheng can attempt to redeem the situation. She should explain in detail the basis of the decision not to prosecute Leung, indicate why an outside legal opinion was not sought and reveal why the case took over four years to process.

If she can address these matters satisfactorily, she will have gone a long way towards restoring public trust in her leadership of her department.

Grenville Cross SC is a criminal justice analyst