The Hong Kong Bar Association formally issued a statement on 21st December 2018, regarding the Department of Justice’s choice to not obtain independent legal advice in its decision not to prosecute former Chief Executive C.Y. Leung over the UGL corruption incident. The Department of Justice’s decision not to consult independent legal advice is worrying and has implications on public accountability and Hong Kong’s rule of law.
On 12th December 2018, the Department of Justice stated that it would not prosecute Leung over the UGL incident on the basis of insufficient evidence. The incident refers to a HKD $50 million payment Leung received from Australian company UGL in 2011 where Leung agreed not to join a rival firm and did not disclose this payment to the Executive Council.
In its statement, the Hong Kong Bar Association noted that the Department of Justice has departed from precedent by not obtaining independent legal advice before reaching the decision not to prosecute. Chow Chung-kong, Chair of the Independent Commission Against Corruption’s (ICAC) committee against corruption stated that although the decision was a professional decision, an explanation of the decision not to prosecute must be provided to the public. Similarly, on December 21st 2018, the Progressive Lawyers Group issued a statement condemning the Department of Justice’s decision not to consult independent legal advice and opined that it would “undermine public perceptions of impartiality” of the Department of Justice. In the past, the Department of Justice has always consulted outside legal advice in deciding whether to prosecute high-profile individuals such as former Chief Executive Donald Tsang, and former Financial Chief Anthony Leung. This departure strikes fears of diminished public accountability and confidence in the judiciary. Although Article 63 of the Hong Kong Basic Law states that “the Department of Justice….shall control criminal prosecutions, free from any interference”, the Bar Association urged that the decision of whether of not to prosecute should be made without political influence.
The Department of Justice’s pronouncement to not seek independent legal advice severely reduces the public’s confidence in the judicial system and presents an image of potential political bias given Leung’s former role as the Chief Executive. Although Article 63 regarding the Department of Justice’s discretion must be respected, there is a fine line between discretion and unchecked power. In such a situation, the Department of Justice should have sought independent legal advice from barristers in the private sector and such barristers should consider all aspects of the case such as the circumstances and nature of the offence, and whether the interest of justice requires prosecution.
Accountability and independence is of manifest importance in a judicial system, especially prosecution. In its 2011 Report on the Standards as Regards the Independence of the Judicial System, the Venice Commission stated that “the biggest problems of accountability arise when prosecutors decision not to prosecute [because] if there is no legal remedy…then there is a high risk of non-accountability” to the general public. In the same vein, the Department of Justice has a duty to prevent governmental overreach of power and must remain strictly independent, void of political bias. The European Networks of Councils for the Judiciary has stated that independence of prosecutors play an integral role in the rule of law and “strong, independent and impartial prosecutors willing to open an investigation and to prosecute suspected crimes and suspects, regardless of status” are necessary in maintaining a strong rule of law.
It is hoped that the Secretary for Justice Teresa Cheng will provide a comprehensive explanation regarding the Department of Justice’s decision as soon as possible in order to restore public accountability, and maintain the rule of law in Hong Kong.