9 January 2020
Integral to any inviolable decision is that those making the decision do not have a vested interest in the outcome, writes Neville Sarony. Photo: RTHK
Integral to any inviolable decision is that those making the decision do not have a vested interest in the outcome, writes Neville Sarony. Photo: RTHK

Why the move to skip outside counsel on CY Leung case was wrong

“In this field of conflicts and sentiments I find delight”
? ? — Samuel Johnson

It has not been a good year to be christened Teresa.

Leave aside the tribulations of Mrs. May, let us consider Ms. Cheng, a Teresa who suffers under the yoke of bearing the absurd oxymoron ‘Secretary for Justice’.

The fathers of Hong Kong’s newly acquired status as a Special Administrative Region, presumably anxious to shuck off anything that smacked of a colonial heritage, abandoned the title Attorney-General, opting for the salaciously Orwellian post of Secretary for Justice.

As a logical corollary, the SJ took charge of the new Department of Justice, replacing the erstwhile Attorney-General’s Chambers.

Did the SAR progenitors seriously believe that the government’s in-house legal department would be a beacon for justice? Come to that, has there ever been any government legal department anywhere in the world that one would associate with administering justice?

Even the first year law student knows that justice is, in theory at least, administered by the judiciary.

So, back to the oxymoronic Teresa.

Her role is to advise the government on all legal matters. To which end, the job goes to a lawyer. Lawyers are assumed to know the law.

How is it, then, that the Department of Justice, ignoring both a fundamental principle of justice and a convention which had always been honored until now, decided not to prosecute C.Y. Leung?

It is not my task here to consider the rights and wrongs of whether Leung should be prosecuted, only to consider the process by which the decision was reached.

A cardinal principle of every civilized legal system is that justice must not only be done but be seen to be done. In modern parlance, we expect transparency in the decision-making process, especially where public servants are involved. We can disagree with the outcome but respect it provided we can see that the process by which that outcome was arrived at was fair.

Integral to any inviolable decision is that those making the decision do not have a vested interest in the outcome.

Please do not try to persuade me that the man in the street believes that the Hong Kong government has no interest in whether the ex-chief executive was guilty of corrupt practice.

Whether or not Leung was corrupt strikes at the very root of the S.A.R. government in the same way that similar questions relative to Antony “Lexus” Leung and Donald Tsang impacted on it. The question goes to the heart of the integrity of the administration.

There is, shrieking at the top of its voice, a conflict of interests.

Since an advanced civilization does not permit people to sit in judgment upon themselves, every perceived conflict of interests demands that those making the decision be utterly separated from the interested parties.

How then, in this day and age, in a society as legally sophisticated as Hong Kong, can any sensible person, let alone a high powered legal luminary, even begin to argue that there is nothing untoward in allowing the question whether or not to prosecute C.Y. Leung be decided by the government’s own in-house legal department without seeking an independent legal opinion?

The stench of rotting fish fills the nostrils. Not, I hasten to add, that it follows axiomatically that C.Y. Leung is guilty, but that the Department of Justice, in the depravity of its infinite ignorance, chooses to bury the question rather than hold it up to the light for examination.

Not only the public but C.Y. Leung himself deserved to have an independent legal mind consider the issue.

Why do we worry about the Beijing Barbarians being at the gate when the home-grown variety is already wearing their loin cloths?

I began with a tale of two Teresas but let us continue with whom I label “Little Teresa”. Perhaps all too aware of the furor that the decision would arouse, the original announcement was made by way of a ten paragraph Department of Justice statement which was only remarkable for what it did not say.

It is not without significance that when the SJ was asked whether it was a unanimous Departmental decision not to prosecute C.Y. Leung, she responded that this was confidential. You may interpret that as you will but it certainly does not constitute a denial.

Now contrast that with the Statement made by David Leung SC, Director of Public Prosecutions with regard to the decision not to prosecute the SJ for the illegal structures in her property. True, he does not mention whether Little Teresa made a statement to the investigating authorities but the issue was referred for the opinion of leading counsel in the private sector.

For a decision as significant as this, one which the public and C.Y. Leung had been kept four years waiting for, surely the least one would have expected would have been a public statement by the Secretary for Justice. But even this had to wait until she had had her holiday.

And, rather like the legendary workhouse Christmas pudding, her statement, when it came, was not worth waiting for.

As full of factual inaccuracies as a 3.0 am Trump Tweet, her claim that independent legal advice was only necessary where a member of the Department of Justice was involved fell flat on its face in the light of the referral of her husband’s possible transgressions to independent legal opinion. As Little Teresa is an acutely intelligent lawyer, she must have forgotten Donald Tsang, Rafael Hui and Lexus Leung.

So also has she forgotten her reply to a question in Legco on December 24 when she said that where handling prosecutorial matters may give rise to any conflict of interest, actual or potential on the part of the Department’s legal officers, independent advice from outside counsel may be sought. This practice, she asserted, has been consistently applied. Save, she omitted to add, in the case of C.Y. Leung.

As for claiming that the decision was being politicized, if you break with convention and flout fundamental legal principle can you truly pretend that this does not smack of political gerrymandering? If it walks like a duck, quacks like a duck and looks like a duck, then surely to God you are ducking the issue.

The two Teresas share a common trait of stubbornly refusing to acknowledge what is screamingly obvious to any independent observer. It does not make them any more right, just past their sell by date.

The British are big enough and ugly enough to shoulder the burden they have wished upon themselves but we in Hong Kong are clinging on by our fingernails to the rule of law in a quasi-liberal semi-democracy. We cannot afford such heinous defectors to autocracy.

Pack up all our cares and woe, sinking low, you have to go, Teresa – Bye Bye.

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Queen's Counsel