Secretary of Justice warns of trial by media if applications expedited to review decision not to prosecute former leader CY Leung over payment saga
- Barrister says efforts to speed up applications through a ‘rolled-up’ hearing could expose some to unnecessary prejudice
Fears of a trial by media have complicated a judicial review application process for those seeking to re-examine the Hong Kong government’s decision not to prosecute a former city leader, a barrister speaking for the justice secretary said on Wednesday.
Mr Justice Anderson Chow Ka-ming on March 13 directed one of the applicants, Tsang Kin-shing, to present his leave and substantive arguments in one go in a bid to expedite the application process. This was a departure from the usual two-step procedure: first proving the case to be arguable in a leave hearing, before presenting full arguments in a substantive hearing.
But Chow on Wednesday changed his mind after Jenkin Suen, on behalf of Secretary for Justice Teresa Cheng Yeuk-wah, voiced objections and countered the department would seek to strike the case if the court insisted on a rolled-up hearing.
Tsang must now go through a leave hearing with Kwok Cheuk-kin, another applicant for the judicial review, in High Court no sooner than July.
The applications were submitted after the justice department announced last December it would not prosecute former chief executive Leung Chun-ying. Leung was accused of a conflict of interest for failing to disclose a HK$50 million (US$63.6 million) payment he received from Australian engineering firm UGL before and after he became the city’s leader in 2012.
The money invo lved was from an agreement that Leung, as director of property company DTZ, made with UGL during the Australian firm’s acquisition of DTZ in 2011.
Tsang and Kwok want a review of the decision not to prosecute Leung and lawyer Holden Chow Ho-ding, who was accused of attempting to alter the investigation into the scandal.
Tsang’s chief argument has been that Cheng had misunderstood her own prosecution policy. He also argued she had “fettered discretion” on when to brief out cases and erred by misunderstanding the elements of the misconduct offence.
The court received Tsang’s application on March 12 and granted a rolled-up hearing the following day.
But at the first directions hearing on Wednesday, Suen, the secretary’s proxy, complained there was no urgency for the court to skip the procedure of a leave hearing.
“The court shouldn’t readily grant a rolled-up hearing,” Suen said. “If rolled-up hearings become the norm, it would frustrate the purpose of having a statutory filtering.”
Suen also argued that a rolled-up hearing was inappropriate because it would prematurely reveal detailed evidence and expose department procedures and persons involved to unnecessary prejudice, if leave was ultimately refused.
Suen said it would not be in the public’s interest to have a trial by media.
But Tsang’s counsel Jeffrey Tam countered there was a need for the case to be dealt with as soon as practical because the matter had dragged on for years.
He argued that oral hearings were part of open justice.
“Embarrassment is inevitable in an open hearing,” Tam said. “That is not a relevant factor.”
Chow eventually agreed to expedite a preliminary hearing to determine whether Tsang’s grounds for review were permissible.
But he rejected concerns of trial by media and insisted rolled-up hearings were cost effective, especially for those without legal aid.
“Courts should now be more ready for rolled-up hearings,” the judge said.