Former Leung Chun-ying adviser Barry Cheung requests Hong Kong judge sitting on his fraud trial steps down over ‘apparent bias’
- Barry Cheung says judge’s earlier comments on co-defendant could indicate prejudice risk to informed observers
- The former Executive Council member, whose trial is due to start within a fortnight, is accused of defrauding the city’s finance watchdog and a company
A former adviser to Hong Kong’s ex-chief executive Leung Chun-ying accused of defrauding the city’s finance watchdog and cheating a firm of HK$30 million (US$3.8 million) has demanded the judge steps down from the case less than two weeks before the trial.
Counsel for Barry Cheung Chun-yuen, a former member of the Executive Council, which advises the city’s leader on policy, applied for the recusal of trial judge Stanley Chan Kwong-chi on Wednesday.
Defence counsel Eric Kwok Tung-ming SC expressed concern that Chan may harbour apparent bias, given his earlier comments encouraging a co-defendant, who has pleaded guilty, to testify against Cheung.
The 61-year-old former adviser resigned from all his public positions – including executive councillor and Urban Renewal Authority head – in May 2013 after police questioned him during their investigation into his failed company, the Hong Kong Mercantile Exchange.
Cheung has denied a count of conspiracy to defraud – jointly charged with the commodities trading platform’s former chief financial officer, Jacky Choi Tat-ying, 50 – and another count of fraud.
Prosecutors alleged the duo conspired to hide the exchange’s true financial position, to mislead the Securities and Futures Commission into letting it keep its licence to provide automated trading services in Hong Kong.
Cheung was further accused of cheating a company named Sinomax Finance out of HK$30 million for the benefit of New Effort Holdings, a British Virgin Islands-based firm wholly owned by Cheung, who was the majority shareholder in the exchange.
He was scheduled to stand trial, which was estimated to last 30 days, before Chan at the District Court starting on July 2.
But his lawyers urged Chan to step down because of what he had said during Choi’s plea hearing on November 6 last year.
Excerpts of the hearing transcript read in court showed Chan had described Choi as being “very remorseful” and urged him to “seriously consider” cooperating with police in respect of Cheung’s case.
And when Choi agreed, Chan called it a “cheerful development” and said “thank you”.
“It brings me to another question of security – I would have to ensure [Choi] would not be interfered [with] by anybody,” Chan said, according to the transcript.
Later he said: “[Cheung] back in the old days was regarded as some sort of influential person in society, right?”
Chan clarified on Wednesday he was not suggesting that Cheung would ask someone to exert pressure on Choi, who will now testify in the upcoming trial.
But Kwok countered that an informed bystander might link the comments together so “it’s better to err on the side of caution”.
“This remark will lead to a fair-minded and informed observer to conclude there was a real possibility that the tribunal was biased,” he continued. “Justice should both be done and seen to be done.”
Prosecutors were initially neutral to the defence application.
But lead counsel John Reading SC changed his mind to support Kwok when the judge demanded “a clear answer” because he “would not accept the prosecution taking a neutral position”.
“That would not be fair to me,” Chan said.
“I’m conscious of my duty for a defendant to receive fair trial,” Reading said. “The last thing a prosecutor wants is to come back and do this all over again [because of an appeal].”
Chan will give his ruling next Monday.
