Recent media reports concerning a trial in an Italian court have raised concerns as to whether the handling of the relevant mutual legal assistance (MLA) requests made by the Italian prosecuting authority was delayed or otherwise compromised with a view to enabling the former Chief Executive, Mr Donald Tsang, to obtain an audience with Pope Benedict XVI. As the media reports raise significant questions concerning the rule of law in Hong Kong, the Secretary for Justice takes the view that it is in the public interest to disclose the following findings of the Department of Justice (DoJ) made following an enquiry into the matter:
1. On July 10, 2006, a Letter of Request was issued by the Public Prosecutor of the Court of Milan (Letter of Request) asking for assistance in respect of, among others, the production of bank documents, documentary evidence by way of search and seizure at identified office and residential premises, in respect of criminal proceedings and investigation in Italy concerning various people including Mr Berlusconi.
2. On September 11, 2006, the Letter of Request was received by the DoJ through the Consulate General of Italy in Hong Kong.
3. On January 16, 2007, four search warrants (Search Warrants) were issued by a Magistrate authorising the search of the relevant office and residential premises pursuant to the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) (MLAO). These Search Warrants were executed on January 18, 2007.
4. The parties concerned, including Ms Paddy Chan Mei Yiu and Ms Katherine Hsu as well as certain companies (Parties Concerned), challenged the validity and the execution of the Search Warrants. On March 22, 2007, the Parties Concerned obtained leave to apply for judicial review of the decisions relating to the issue and execution of the Search Warrants. Since then and (as further explained below) until August 9, 2013, there had been numerous court applications and hearings in respect of the matter and the media in Hong Kong had on occasions made reports on the matter.
5. On October 9, 2007, Mr Duncan Pescod (in his then capacity as the Special Representative for Hong Kong Economic and Trade Affairs to the European Communities) sent an email to Ms Amelia Luk (the then Acting Law Officer (International Law) of the DoJ). In this email, Mr Pescod did not mention anything about any request to meet the Pope. Mr Pescod only informed Ms Luk that Senator Gregorio (then the Chairman of the Italian Senate's Defence Committee and one of his senior contacts in Rome) approached him and made enquiry in respect of the progress concerning the execution of the Letter of Request in Hong Kong. Mr Pescod stated that he had told Senator Gregorio that if a case has been brought to the courts, then it would not be possible for the Government to comment. Mr Pescod asked for advice as to what, if anything, could be said to Senator Gregorio.
6. In an email sent on October 10, 2007, Ms Luk confirmed that the DoJ had received the Letter of Request and informed Mr Pescod that the matter was subject to judicial review proceedings as the Parties Concerned challenged the validity of the Search Warrants and the legality of their execution. Ms Luk concluded by advising Mr Pescod that he tell his contact in Rome that the legal issues arising out of the execution of that part of the mutual legal assistance request by the Italian Government were before the court in Hong Kong.