Tony Kwok argues Hong Kong should have full confidence in anti-corruption watchdog's advice on former chief executive's case, and that it's time to end briefing out prosecution cases

In recent years, the Hong Kong Bar Association has lost much of its public credibility by, seemingly, taking a habitual anti-government and anti-China stance on many controversial issues. The latest such example is its relentless criticism of the joint checkpoint (co-location) arrangement at the West Kowloon Terminus of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link despite the facility's substantial advantage of convenience to the public. Well, they got a big slap on the face recently when the High Court ruled in a judicial review that the co-location arrangement is both legal and constitutional.

In the same vein, the HKBA also launched a vicious attack, backed with protest marches, against Secretary for Justice Teresa Cheng Yeuk-wah over her decision not to prosecute former chief executive Leung Chun-ying for allegedly receiving an inappropriate payment after assuming office.

Their contention is that Cheng should have sought independent legal advice in the case. But, they should know better that, under all common law countries' constitutions, the attorney-general or SJ is always the sole arbiter to decide on public prosecutions. I have never heard of any case in Australia or Canada of them seeking legal advice from a private Queen's Counsel in the United Kingdom to determine whether public officials should be prosecuted.

If their suggestion is to seek advice from a Queen's Counsel in the UK, they should know that Leung's case is, basically, an alleged private sector corruption case. The UK did not criminalize private-sector corruption until recent years and, thus, their law development in this field is very limited, compared to Hong Kong's 40 years of very well-developed case law on private-sector corruption in Hong Kong courts. Hence, it would be tantamount to having a university student seeking homework advice from a secondary school kid! This is absurd, to say the least.

If it's suggested that the SJ should seek local legal advice, it would have enabled one of the HKBA members to fatten his or her purse. It should be noted that the justice chief had already received independent legal opinion through the ICAC Operations Review Committee (ORC). This is one of the most powerful independent watchdog committees in Hong Kong because it's vested with the responsibility to check all the law enforcement aspects of the ICAC, including whether they have failed to take up any public complaints for investigation, whether they have conducted a thorough investigation, and whether the decision by the SJ to prosecute or not to prosecute is proper and appropriate. There are 13 independent members in the ORC - all prominent citizens representing major sectors of our society. On the committee's current membership list, there's John Yan Mang-yee, who was appointed senior counsel in 2003. In the same batch was former secretary for justice Rimsky Yuen Kwok-keung and other prominent senior counsels Paul Shieh Wing-tai and Kevin Zervos, currently a High Court judge. Yan was called to the Hong Kong Bar as early as 1984 and had once served on the Bar Council in 1993-94. So, is there anyone in the Bar Association who would challenge Yan's qualification to give his independent legal opinion as a member of the ORC in this case?

In addition, there is prominent solicitor John Chan Chong-kun, who happens to be a founding member of the Democratic Party.

The ORC's chairman is Benjamin Tang Kwok-bun. During his tenure as director of audit, he had no hesitation in censuring various government departments.

Others on the committee include Dr Kelvin Wong Tin-yau, chairman of the Hong Kong Institute of Directors and non-executive director of the Securities and Futures Commission, hence very conversant in public governance and enforcement issues; Chew Fook-aun, a qualified accountant and a senior executive in a major business enterprises; Irene Chow Man-ling, a chartered financial analyst in an international bank; Professor Paul Man Kwan-sing, vice-president of a local university; and Dr Tik Chi-yuen,a former Legislative Councilor and a well-known public figure. There are also two expatriate members - Hans Michael Jebsen and Nicholas Robert Sallnow-Smith - both very prominent businessmen in Hong Kong. Are these people likely to be rubber-stamping the SJ's decision, as alleged by opposition lawmaker Lam Cheuk-ting?

Lam's recent comment that the ORC always endorses the justice chief's legal opinion is really a big insult to them! Lam was so junior while working for the ICAC that he never had the chance to attend any ORC meeting, which explains his lack of real understanding of the committee. The ORC would have received reports every six weeks on the progress of the ICAC investigation of Leung. The final report should be a full comprehensive investigation report and the legal advice from the Department of Justice should also be comprehensive. I'm sure all members were well aware of the sensitivity of this case and would have asked all the relevant questions and received satisfactory answers before they would have agreed to the ICAC's recommendation to close the investigation and endorsed the SJ's decision not to prosecute.

This group of professionals has been monitoring the investigation closely for four years, and has examined a full investigation report and the legal advice. This means they have access to the case information no less than any independent private briefing counsel would have, if not more. So, in this case, is there really any point in seeking any briefing-out private counsel, and costing taxpayers hundreds of thousands, if not millions of dollars, in legal fees?

ORC members are always vigilant in their examination of the report. During my time, there were occasions when the ORC was uncomfortable with the legal advice not to prosecute and urged the SJ to reconsider and, in the end, the SJ did overturn the legal advice given by his prosecutor and decided to institute prosecution. They are definitely not a rubber stamp and Hong Kong should have full confidence in them.

The Department of Justice "has been bending over backward" to accommodate the HKBA in briefing out most of the prosecution cases to private counsel, much to the detriment of the professional development of public prosecutors. With the Bar Association showing contempt for the SJ's constitutional role, it's time to recruit more public prosecutors to abolish this ill practice of private briefing out prosecution cases.

(HK Edition 12/27/2018 page8)