CY Leung UGL payment saga

Democrats ponder next move after justice department ends investigation into former Hong Kong leader CY Leung

  • Lawmakers Lam Cheuk-ting and Edith Leung eye judicial review after decision not to prosecute
PUBLISHED : Friday, 14 December, 2018, 9:20am
UPDATED : Friday, 28 December, 2018, 3:15pm

Democrats in Hong Kong are considering asking for a judicial review of the Department of Justice’s decision not to prosecute former chief executive Leung Chun-ying.

The announcement came a day after the Independent Commission Against Corruption (ICAC) ended a four-year investigation into the former chief executive over a HK$50 million payment he received in connection with a deal he made with an Australian engineering firm before he took office.

Legal experts, however, said the move was unlikely to be successful unless any lapses in procedural justice were found.

On Thursday evening, Democratic Party lawmaker Lam Cheuk-ting and central committee member Edith Leung Yik-ting said preparations were being made to launch the judicial review.

“We hope to obtain a fuller explanation from the Department of Justice in the near future, if not, we will consider applying for a judicial review,” Edith Leung said.

Since 2014, the ICAC had been investigating the payment from Australian engineering firm UGL to CY Leung, while he was the city’s leader from July 2012 to June 30, 2017.

The controversy stemmed from a deal Leung struck before he took office, after the engineering firm’s 2011 purchase of DTZ, a property services company once listed in Britain, of which the former chief executive was a director. As part of the deal, Leung agreed not to form or join a rival firm, and to help promote the company.

Leung received part of the money after becoming the city’s leader in 2012. But, he did not declare this during a meeting with his cabinet, the Executive Council, sparking concerns over a possible conflict of interest.

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In a statement released on Wednesday, the justice department said there was not enough evidence to suggest Leung had violated the Prevention of Bribery Ordinance. But critics, including a former top prosecutor questioned the decision, asking why no independent legal views were sought in the process.

Should the Democratic Party go ahead with the move, it would not be the first time the department’s prosecutorial decision has been challenged.

In a judgment issued in 2008, Justice Michael Hartmann wrote that the prosecutorial independence of the Secretary for Justice was “a linchpin of the rule of law”.

Only under exceptional circumstances, such as when the secretary may have acted outside powers stipulated in the Basic Law, could prosecutorial decisions be amended by way of judicial review, Hartmann ruled.

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Barrister Ronny Tong Ka-wah, who is also an executive councillor, said there was little chance of the Democratic Party launching a successful judicial review.

It was hard to see any lapse in procedural justice in the handling of the case, he said.

University of Hong Kong legal scholar, Eric Cheung Tat-ming, agreed and said the bar for overturning the justice department’s decision was set very high.

“It is not impossible, but there has not yet been a successful case,” Cheung said.

Former Director of Public Prosecutions Grenville Cross, said he found it “very surprising” that no independent legal advice was sought on Leung’s case and urged the justice secretary to explain.

“For many years, this has been the invariable practice whenever a senior government official has been suspected of a criminal offence,“ Cross said.

He said seeking independent legal advice would help reassure the public the case had been handled appropriately and the suspect had not received any preferential treatment or favours because of his or her status.

He cited the example of his decision to seek independent legal views in 2003 when the department was considering whether the former financial chief Anthony Leung Kam-chung had committed misconduct in public office by buying a car shortly before an increase in first registration tax for vehicles in the government budget in the same year.

After seeking advice from two leading counsels in Hong Kong and Britain, Cross announced in late 2003 that no charges would be pressed against the then financial secretary because of the lack of sufficient evidence

“Although not everyone agreed with the decision, they could at least see that it was taken in good faith,” Cross said.

Director of Public Prosecutions David Leung Cheuk-yin declined to comment on Thursday when asked why the department had not sought external advice and whether the justice minister was involved in the decision.