On Wednesday, the Department of Justice (DoJ) finally issued a statement on the ICAC investigation into allegations of corruption and misconduct in public office against the Hong Kong ex-Chief Executive Leung Chun-ying and lawmaker Holden Chow.
The allegations concern the legitimacy of Leung entering into an agreement with UGL Limited and receiving payments when he was in office, as well as suspected interference by Leung and Chow in the inquiry of the Select Committee to Inquire into the Matters about the Agreement between Leung and the Australian firm UGL Limited.
The DoJ announced that there was insufficient evidence to initiate prosecution against Leung and Chow. And no one was surprised – not because Leung and Chow have spotless reputations, but because of the widespread suspicion that pro-Beijing individuals will almost always be blessed and sheltered from the full rigours of the law.
Eric Cheung, the principal lecturer and director of Clinical Legal Education of the Faculty of Law in HKU, noted that the DoJ had failed to indicate whether they had engaged any senior lawyer from overseas to provide independent legal advice, which is considered to be a requirement when handling sensitive cases involving suspects who are current or former members of the government.
Cheung cited the statement released by the DoJ in relation to the “Lexusgate scandal” of the former Financial Secretary, Antony Leung in 2003 as an example of how the present DoJ had departed from the procedure and principles they followed in the past.
The 17-page statement makes clear how and why the DoJ decided not to charge Leung, backed with a number of references and independent legal opinions.
In the 2015 Donald Tsang case, the DoJ also indicated that they had obtained legal advice from overseas Queen’s Counsel as part of their decision making. In the present case of Leung and Chow, all we have is a press release so general and feeble that it is utterly disproportionate to the seriousness of the accusations.
Article 63 of the Basic Law states that the DoJ of the HKSAR shall control criminal prosecutions, free from any interference. Yet given the comparison above, one would naturally wonder if the DoJ is, in fact, handling the case “free from any interference” and is acting independently.
Let us first hold back a little and avoid jumping to the conclusion that “justice has not been served.” However loathsome the accused may be in any particular case, we must stick with the fundamental human right, of “everyone… to be presumed innocent until proven guilty.”
Nonetheless, the blatant inconsistency shown in various cases in recent years leads to a worry; their handling has created an impression that “justice has not been seen to be done.”
The expression comes from a historic English case R v Sussex Justices, ex parte McCarthy  1 KB 256, which brought into parlance in the common law system “not only must justice be done, it must also be seen to be done.”
It established a principle that the mere appearance of bias may be sufficient to overturn a judicial decision. To apply this aphorism in the current case, and unfortunately also in other cases with a political flavour, the actions of the DoJ appear to lack impartiality and due procedure.
Numb as we all may well be, this tendency in Hong Kong is an actual deterioration in the administration of justice and the capacity to uphold the Rule of Law.
People are losing faith in the Hong Kong legal system; not only does this discourage foreign investment but it also means that our status as a leading common law jurisdiction is at stake. To lose this would be an expensive mistake both for Hong Kong and China.
There is a saying in Cantonese – “It takes three years to build a good character, but it would only take three days to corrupt it.” If the DoJ still seeks to maintain a professional image and honour its constitutional role, it needs to provide proper explanations for its actions in this and other cases. Otherwise, people will assume the worst.
Angie Te is a law student interested in Hong Kong heritage preservation issues and local affairs. “I write and I tramp.”
Article originally appeared in Hong Kong Free Press on 16 December 2018