Lessons we can learn from former CE’s case

After a four-year investigation by the Independent Commission Against Corruption, the Department of Justice has decided not to prosecute former chief executive Leung Chun-ying. It concluded that although Leung, then a director of DTZ Holdings, had entered into an agreement with UGL to receive a payment of HK$50 million, as part of a “non-compete, non-poach” arrangement at the time UGL was taking over DTZ, there was no wrongdoing on his part. In particular, as the evidence did not reveal any corrupt conduct, and as there was no conflict of interest, there was not a “reasonable prospect of conviction”. This decision mirrored that taken in September by the United Kingdom’s National Crime Agency, and appears to have been fully justified.

That, however, is not the end of the story. Secretary for Justice Teresa Cheng Yeukwah, who is new to public prosecutions, can learn important lessons from the way in which her department handled Leung’s case, and these will assist her going forward. Given her overarching prosecutorial role, she will hopefully wish to minimize delays in the handling of cases, ensure transparency, and promote public trust in the prosecution system.

Although Leung will undoubtedly be relieved by the outcome, he has had this matter hanging over his head since October 2014, when it was first reported to the ICAC. On its face, this was an unacceptably long period of time for him to have to wait to discover his fate, particularly as the allegations fell within a narrow compass. It should have been possible for the ICAC to have wrapped things up within a matter of months, and the delays must have placed Leung and his family under huge strain.

Suspects are entitled to know their fate within a reasonable time, and should not be left in suspense by investigators for years on end. Prolonged anxiety, of course, can amount to a punishment in its own right, and can sometimes result in reduced sentences if suspects are ultimately convicted. Although we do not know for sure how much prosecutors also contributed to this, a culture of delay in the processing of cases has unfortunately now developed, and Leung’s experience was by no means a one-off.

Although, for example, the ICAC began investigating allegations of impropriety by former chief executive Donald Tsang Yamkuen in February 2012, he was not charged with any offense until October 2015, over three and half years later. Again, the strain on Tsang and his family must have been intolerable. The allegations he faced, of accepting advantages from local tycoons and showing favors, were focused, and it should also have been possible for the ICAC to have concluded its investigation within a reasonable time.

Some cases, of course, such as blockbuster frauds, are vast, and cannot be hurried. They require international investigations, with a mass of evidence to be considered. They may involve multiple suspects, with protracted inquiries being unavoidable, including pursuing money trails around the globe. However, most cases are not in that category, and the delays experienced by Leung and Tsang, and others, must be eliminated, or at least satisfactorily explained.

After all, when high-profile cases are unreasonably delayed, it fuels public concern, and may even undermine confidence in the legal system. Criminal investigations need to be handled expeditiously, and these inordinate delays are quite new. In 2003, for example, when the then financial secretary, Antony Leung Kam-chung, came under suspicion of fraudulently avoiding first registration tax on his new car, the case was processed within eight months, with both the ICAC and the Department of Justice working in tandem to ensure an early decision.

Although the Department of Justice issued a short statement explaining its decision not to prosecute Leung Chunying, no reason for the four-year delay was provided, as it should have been. Cheng, therefore, may wish to know why this was not done, particularly as transparency enables the public to understand how cases are processed. Certainly, given her responsibilities, Cheng will need to ensure that in future delays of this sort are avoided as far as possible, and she must be prepared to crack the whip if she discovers that either prosecutors or investigators are dragging their feet.

Whatever advice Cheng received from her prosecutors on Leung’s case, it is extraordinary that an independent legal opinion was not obtained by her subordinates before a final decision was taken, as is normal. Whenever senior government officials and other public figures have been subject to criminal investigation in recent times, it has been her department’s invariable practice to obtain an outside opinion (or opinions, for there were two in Antony Leung’s case) from an independent legal expert. This practice, which was followed by her predecessors, Elsie Leung Oi-sie, Wong Yan-lung and Rimsky Yuen Kwokkeung, not only provides the department with a valuable perspective in sensitive cases, but it also helps to reassure the public that the case is being handled in good faith and without bias. Public perceptions are always important, and everything possible must be done to demonstrate that the suspect is not receiving any preferential treatment on account of his or her status.

Why this sensible practice was not followed in Leung’s case has not been satisfactorily explained, but it has already caused problems. Not only are some people questioning the correctness of the decision, but there is even talk in some quarters of a judicial review of the decision not to prosecute. Although such a move is unlikely to succeed, Cheng will need to ensure that in future her prosecutors follow customary procedures, not least because these are designed to protect the department itself from allegations of bias.

After a four-year investigation, moreover, the ICAC must have produced a mass of evidence for prosecutors to consider, and various legal issues would have arisen. Once, therefore, the department decided to issue a statement, it should have ensured it was comprehensive. After all, the case is being followed closely by legal experts and foreign observers, as well as by the general public. A detailed explanation was required, setting out the background, the evidence, the issues, the law and the conclusions. The statement issued, however, was short, amateurish and superficial, and has left many people dissatisfied. In future cases, therefore, Cheng must revert to precedent, and ensure that departmental statements are not only detailed in content but also professional in structure. If this does not happen, they may actually do the department more harm than good.

Although prosecutorial issues are rarely simple, if basic ground rules are followed, many potential difficulties can be avoided. It will very much be to Cheng’s credit if she can resolve the problems which the processing of Leung’s case has exposed, and it will strengthen her department going forward. After all, time spent in promoting public trust in our criminal justice system is always time well spent.