Hong Kong’s top legal bodies call on justice minister Teresa Cheng to explain why investigation against former chief executive CY Leung was dropped
- In separate statements, the Bar Association and the Law Society asked Teresa Cheng if the Justice Department had changed its policy on seeking outside counsel
- Opposition lawmakers have warned of a possible motion of no confidence in Cheng but the minister has the support of LegCo’s largest party
Justice Minister Teresa Cheng Yuek-wah came under mounting pressure on Thursday as Hong Kong’s two major legal bodies called on her to fully explain the government’s decision to drop investigations against former city leader Leung Chun-ying over a HK$50 million (US$6 million) payment.
The Bar Association and the Law Society, representing the city’s barristers and solicitors respectively, separately urged Cheng to clarify if the Department of Justice (DOJ) had changed its policy in seeking outside legal opinion on certain cases, when prosecutors previously did so to dispel possible bias or conflict of interest.
After being away and not commenting for 10 days, Cheng finally broke her silence on Wednesday and defended the DOJ’s move, insisting there was no need to seek external legal opinion unless the case “involved a member of the DOJ”.
But in two papers to lawmakers in December 2017 and February this year, the DOJ listed a total of six scenarios for “briefing out” – the use of external counsel – on criminal and civil cases.
The scenarios covered situations where DOJ personnel were involved, and others where it was “deemed appropriate … so as to address possible perception of bias or issues of conflict of interests”.
Top prosecutor David Leung Cheuk-yin also told lawmakers during a February Legislative Council panel meeting that the DOJ would consider these scenarios in deciding whether to seek a second opinion before deciding on prosecutions.
“We noted the stipulated principle by the DOJ in the latest Legislative Council papers doesn’t quite match what the Secretary for Justice said on Wednesday,” said Law Society vice-president Chan Chak-ming.
“We encourage the Secretary for Justice to clarify on whether those principles still apply, or whether there is something new.”
Chan said Cheng and her department were entitled to make any change to its internal policy, but the public was similarly entitled to raise legitimate questions unless she provided clarity.
Bar Association chairman Philip Dykes said he was surprised to see Cheng contradicting her department’s own position.
“The ball is now in the Secretary for Justice’s court to explain,” Dykes said in an interview with the Post.
The Bar had previously called on the DOJ to review Leung’s case by seeking independent legal opinion.
Dykes said Cheng and the DOJ may hold an “honest belief” that Leung’s case should not proceed for lack of evidence but the well-established practice was to seek independent outside counsel to quell any controversy and the perception of bias they were now saddled with.
“The principle exists so the DOJ could do their job properly,” said Dykes. “She’s creating a rod for own back by not seeking independent advice.”
Veteran criminal barrister and former Bar Association Vice-Chairman Clive Grossman SC, however, said whether to seek an independent legal advice was entirely the DOJ’s call.
Grossman said the DOJ would usually seek a second opinion when it was “unsure … whether there is likelihood of success” to secure conviction.
“ … to say that the [Secretary for Justice] is mistaken as to the policy, is obviously quite wrong as she is party to the existence of the policy itself”, Grossman said in a written response to the Post.
He added whether a case is to be briefed out is “really a decision that has to be taken in-house” by the department, not any other party.
Cheng is expected to attend a Legislative Council panel meeting on January 28.
However, she had already rejected calls from pro-democracy lawmakers and legal scholars to further explain the decision not to prosecute Leung, who did not disclose he had received part of the payment from Australian conglomerate UGL in 2012 and 2013 while he was in office.
Democratic Party lawmakers Lam Cheuk-ting and Andrew Wan Siu-kin protested the DOJ’s decision on Cheng’s first day of work after her week-long holiday and warned of a possible no-confidence motion against her.
But the DOJ also won support from the pro-establishment Democratic Alliance for the Betterment and Progress of Hong Kong, the largest party in Legco.
Starry Lee Wai-king, chairwoman of the DAB, said on Thursday that each case turned on its own facts and it was not necessary for the DOJ to seek independent legal advice.
“If there is sufficient evidence, the DOJ can choose not to seek an outside legal opinion,” Lee said. She said the case should come to a close and warned the opposition not to put pressure on the DOJ to influence a prosecution decision.
Separately, Dykes stressed that Cheng was not being accused of any wrongdoing but said that the situation warranted a review of the process. The time was ripe for justice secretaries to delegate prosecutorial decisions to the top prosecutor to dispel any perception of bias or political interference.
Britain’s Attorney General previously delegated prosecution decisions, except on national security, to the Director of Public Prosecution to handle, after a major controversy erupted when a cabinet minister interfered with a case.
The DOJ has so far not commented on whether Cheng was directly involved in Leung’s case. Lawyers, including former top prosecutor Grenville Cross, had urged Cheng to answer “basic questions” to clear the air.