Legislative Council

LC Paper No. CB(2)1508/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/PL/AJLS

Legislative Council
Panel on Administration of Justice and Legal Services

Minutes of Special Meeting
held on Thursday, 4 February 1999 at 2:30 pm
in the Chamber of the Legislative Council Building

Members Present:

Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Emily LAU Wai-hing, JP

Members Attending :

Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon HUI Cheung-ching
Hon Bernard CHAN
Hon CHAN Kam-lam
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon FUNG Chi-kin

Public Officers Attending :

Ms Elsie LEUNG, JP

Secretary for Justice

Mr I Grenville CROSS, SC

Director of Public Prosecutions

Mr R C ALLCOCK

Deputy Law Officer

Mrs Pamela TAN KAM Mi-wah, JP

Director of Administration & Development

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP

Legal Adviser

Mr Paul WOO

Senior Assistant Secretary (2) 3

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I. Meeting with the Secretary for Justice concerning the Hong Kong Standard case

Declaration of interest

The Chairman declared her status as a member of the Operations Review Committee of the Independent Commission Against Corruption (ICAC). Members and the Administration had no objection to her chairing the meeting.

Powers and privileges

2. The Legal Adviser said that as the Panel was a committee of the Legislative Council, members were given the necessary protection under the Legislative Council (Powers and Privileges) Ordinance (Cap. 382). Subject to this, he also drew members' attention to the sub judice rule as, according to information provided by the Administration, further inquiries of the case were continuing.

The meeting

(Statement/press statement by the Secretary for Justice in respect of the decision not to prosecute Madam AW Sian tabled at the meeting and issued vide LC Paper Nos. CB(2)1253/98-99(01) and 1253/98-99(02) respectively; minutes of the special meeting of the Panel on 23 March 1998 issued vide LC Paper No. CB(2)1225/98-99; Booklet on Prosecution Policy - Guidance for Government Counsel published by the Department of Justice in August 1998)

3. The Chairman welcomed the representatives of the Administration to the meeting. She informed members that a special meeting of the Panel on Administration of Justice and Legal Services of the Provisional Legislative Council was held on 23 March 1998 to discuss the Hong Kong Standard case. The Secretary for Justice (SJ) had then indicated that she hoped that at the conclusion of the trial it would be possible for her to make a public statement on the case. Following the delivery of judgment on 20 January 1999, SJ was invited to address the Panel on the case and to explain her earlier decision not to prosecute Madam AW Sian, the named co-conspirator, in the Hong Kong Standard circulation fraud case.

Statement by the Secretary for Justice

4. At the invitation of the Chairman, SJ delivered her statement in respect of the decision not to prosecute Madam AW. The gist of SJ's statement was as follows -

1. It was a well-established policy that the Department of Justice did not disclose in detail the reasons for deciding not to prosecute someone. However, SJ was prepared to disclose the reasons for the decision on this occasion for the following reasons -
   - The allegation of bad faith on the part of SJ must be answered;

   - In fairness to Madam AW. The record of her interview with the ICAC dated 4 June 1997 had been leaked to the media. The nature of the evidence said to support her role in the conspiracy had thus entered the public domain and become the subject of public comment;

   - The allegation that SJ's decision was based upon improper considerations might have had unfortunate ramifications; it was said that it had shaken confidence in the legal system both in Hong Kong and internationally. It was incumbent upon SJ to make clear that any such concerns were not well founded.

   Due to the exceptional circumstances, this case should not be taken as a precedent for disclosure of reasons for prosecution decisions in future.

2. The decision not to prosecute Madam AW was made on the basis of insufficient evidence, although SJ had also considered the matter from the public interest angle. SJ had exercised her independent prerogative impartially in this case, having regard to Article 63 of the Basic Law which stipulated that "The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference." At no point was any consideration given to the political or personal status of Madam AW.

3. The decision not to prosecute Madam AW was reviewable by the Department of Justice, as the situation could change in relation to each of the bases upon which SJ's decision was grounded. The public interest factors to which SJ attached weight were now less significant. Following the conclusion of the trial, clearance had been given for the ICAC to pursue inquiries with the three convicted defendants which might or might not yield fresh evidence. SJ would be prepared to review her decision should there be any new evidence.

Disclosure of the reasons for not prosecuting Madam AW Sian

5. The Chairman, Mr TSANG Yok-sing and Mr Martin LEE queried why SJ did not disclose the reasons for not prosecuting Madam AW when she addressed the Panel on 23 March 1998, if it had been concluded then that there was insufficient evidence to prosecute. SJ reiterated that it was a well-established policy that where a decision not to prosecute was made, the reasons in detail would not be disclosed. She further explained that her major concern at that time was that to give a simple answer of insufficient evidence without disclosing details of the evidence available would likely to arouse undesirable public debate and speculation. In addition, it was not appropriate to discuss her prosecution decision at that time. Firstly, this would subject Madam AW to a non-judicial public enquiry without the fundamental safeguards available to a defendant in a criminal trial, such as the rules of evidence, the presumption of innocence, the right of cross-examination and the requirement of proof beyond reasonable doubt etc. This would go against the principle of a fair trial. Secondly, any discussion of the evidence of the case could affect the pending trial of the three defendants, a matter which was sub judice.

6. In supplementing, Director of Public Prosecutions (DPP) said that when the Panel discussed the matter at its meeting on 23 March 1998, there was no way of knowing what evidence would come out at the pending trial of the three accused persons. It was clearly not in the interests of justice that there should be public debate and conjecture about whether or not another person named in the case should have been charged. In addition, the Department had to guard against setting an undesirable precedent for future cases in a different scenario where public interest might warrant no prosecution despite the evidence itself justifying the initiation of such. Otherwise, the Administration would again be under pressure to explain the reasons for its prosecution decision.

7. Mr Martin LEE opined that a simple explanation to the effect that there was insufficient evidence to justify prosecution of Madam AW, without disclosing the details of evidence, should in no way affect the trial of the three others. He noted that SJ had advised at the meeting in March 1998 that she could neither say whether her decision not to prosecute Madam AW was based on insufficiency of evidence or public interest. He opined that in saying this, SJ had unwittingly invited the public to conjecture on both limbs of the factors affecting her decision. Mr TSANG Yok-sing held the view that by not making a statement as soon as the grounds for insufficient evidence to prosecute had been established, the Administration had not succeeded in stemming public debate and conjecture on the case.

8. In response to members' concern about the policy of non-disclosure of reasons for prosecution decisions, SJ informed members that the English Crown Prosecutions Service had adopted some new practices which had the effect of relaxing the disclosure restriction under certain special circumstances. She said that the Administration was examining whether it was necessary or possible to make changes locally in the light of the new developments taking place in the U.K.

Public interest considerations

9. Mr Ronald ARCULLI referred members to paragraph 16 of the Booklet on Prosecution Policy which specified that "Having satisfied himself that the evidence itself can justify proceedings in the sense that there is a reasonable prospect of obtaining a conviction, Government Counsel must then consider whether the public interest requires a prosecution". In view of this policy, he doubted whether it was necessary for SJ to consider the public interest at all if the decision had been taken that there was insufficient evidence to secure a conviction against Madam AW. He said that the giving of further consideration to the public interest factor would cast doubt as to whether SJ was fully satisfied that there was insufficient evidence to prosecute.

10. SJ replied that the decision not to prosecute Madam AW was based ultimately on grounds of insufficient evidence. Although strictly speaking, as a matter of strict prosecution policy, it was not necessary in the circumstances of this case to consider the public interest in making the decision on whether or not to prosecute, she decided to turn her mind to such factors because of the representations that had been made to her from the lawyers acting for Madam AW. In this particular case, she considered the public interest factors of, firstly, the potential effects of a prosecution against Madam AW upon other people and, secondly, whether the possible consequences of a prosecution were proportionate to the seriousness of the alleged offence. She bore in mind these criteria and having considered the facts of the case, came to the view that if Madam AW was to be prosecuted, there would be a serious risk that the Company (Sing Tao Holdings Ltd, a publicly listed company of which Madam AW was the Executive Chairman), which was then negotiating restructuring with banks, could collapse, and that could bring about mass redundancies at a time when unemployment was on the rise. In addition, the failure of a long-established and well-respected media group at a time shortly after the Reunification could send all the wrong signals to the international community, such as speculation relating to restrictions on freedom of speech in the territory, bearing in mind that several other newspapers had folded in late 1996, 1997 and 1998. Having taken these factors into consideration, she also concluded that it was not right, from the public interest point of view, to initiate a prosecution of Madam AW.

11. Mr Albert HO said that while he respected the general principle that the reasons for prosecution decisions should not be disclosed, he was of the view that accountability to the public should also be of great importance. He pointed out that in the past, there had been cases of serious controversy where the decision of the Attorney General not to prosecute was reversed as a result of public discussion. Furthermore, as had been advised by DPP at a recent meeting of the Panel, decisions not to prosecute had been held to be susceptible to judicial review under special circumstances and subject to certain conditions being met. He said that the Administration should not lose sight of these considerations. Referring to Madam AW's case, Mr HO was doubtful whether public interest should be interpreted in the way as explained by SJ. He said that the basis of argument as put forward by SJ carried the grave danger of misleading the public to come to the view that people of higher social status or wealthy people or large employers could escape the justice of the law. Public confidence in the integrity of the legal and judicial system would be undermined. Mr HO said that public interest should be viewed from the perspective of upholding the rule of law and the principle that no one should be above the law.

12. Mr Albert HO's views were shared by Mr Martin LEE. Mr LEE said that in deciding whether or not to prosecute, it would be irrelevant and grossly unfair to have regard to factors such as a company's financial position, its nature of business or size of employment.

13. SJ reaffirmed that her decision was not based on considerations of a person's status and financial position. She drew members' attention to paragraph 10 of the Booklet on Prosecution Policy which set out the relevant factors in the consideration of public interest, amongst them was how a decision to launch a prosecution would affect "other people". In the context of the Hong Kong Standard case, the interests of the 1,400 local and 500 overseas employees of the media group who were likely to be put out of jobs as a result of prosecuting Madam AW was considered to be a legitimate factor to be taken into account.

14. Mr Martin LEE said that he held a different view as to the interpretation of the interests of "other people". He considered that "other people" should refer to those who were either directly or indirectly connected to a crime, such as the victim in a sexual assault case who would be subjected to great trauma for being called upon to give evidence and cross-examined in the proceedings. The interests of such people were an important factor in determining the balance of the public interest. The Hong Kong Standard case was different in that one could not say with certainty the degree of adverse impact on employment in the event of instituting prosecution against Madam AW. He opined that in any case, this factor could not constitute a relevant public interest consideration.

15. The Chairman enquired whether it would become an established principle that in times of high level of unemployment, the impact on the employees of a person under investigation would be a factor for consideration in deciding whether or not to prosecute the person. Mr Albert HO asked how would this consideration fit in with any of the categories of public interest as explained in the Prosecution Policy.

16. In response, SJ and DPP advised that the decision whether or not to prosecute ultimately depended on a broad view of the interests of public justice, subject to the particular circumstances of the case. It was not surprising that there were different views as to where the public interest lay in any particular case. The Administration was fully satisfied that in the circumstances of the Hong Kong Standard case, the consideration of the interests of the employees who might have lost their jobs had prosecution been proceeded with against Madam AW was within the broad parameters of public interest considerations specified in the Prosecution Policy.

17. In reply to a further enquiry from Mr Albert HO, SJ said that it was difficult to obtain information on similar or comparable examples of public interest considerations in prosecution decisions as it was a commonly observed principle that the reasons for prosecution decisions were not disclosed. She added that the range of public interest considerations varied among jurisdictions, and different jurisdictions applied those factors in the light of their own particular circumstances. For example, Holland had a list of at least 52 items which could be taken into account as relevant public interest factors.

18. The Chairman referred to the point made by SJ in her statement that as the position now stood, the public interest factors to which SJ attached weight on 23 March 1998 might be less significant, given the change in circumstances both of Madam AW and of the Company itself. The Chairman said that if this meant that SJ might now change her original decision not to prosecute Madam AW on the ground that Madam AW or the Company was no longer able to hire a large number of people, the Administration would likely be accused of being unfair and not righteous. In response, SJ stressed that a factor which she had taken into account in her consideration of the public interest was the consequences which a prosecution was likely to cause to the survival of the Company and to the interests of the employees. With that in mind, she needed to have regard to changes in prevailing circumstances which might affect the possible consequences of a prosecution, such as a change in Madam AW's shareholdings in the Company. She advised that as at the present point in time, she had yet to see the need to change her original decision not to prosecute Madam AW. However, should new evidence emerge, she was prepared to review her decision.

19. Mr Martin LEE said that from what SJ had described, it appeared that a finely balanced judgment of whether or not to prosecute Madam AW in the Hong Kong Standard case was a difficult decision to make. He noted that SJ had taken into consideration the representations from Madam AW's lawyers. Mr LEE asked whether SJ had also obtained legal advice from outside the Department of Justice (D of J) in arriving at the conclusion not to prosecute Madam AW. SJ replied in the negative. She said that it was normally only for cases of exceptional complexity, or for cases where the required expertise was not available within the D of J, or for cases involving members of the D of J, that outside legal advice would be sought. The Hong Kong Standard case did not fall within any of these categories. SJ said that it was her ultimate decision whether or not to prosecute in a case and she felt that she was able to make such a decision in Madam AW's case with the benefit of advice from her colleagues in the Department.

20. Mr YEUNG Yiu-chung enquiried whether there was any mechanism within the D of J to reconcile internal differences in opinion on prosecution decisions. DPP advised that discussions and exchanges of views were common within the Department. The existing system was such that, at the end of the day, junior counsel were supervised by more senior prosecutors in the Department, and all the way up the hierarchy, and the ultimate decision would be taken in accordance with the Prosecution Policy. He supplemented that the D of J had commissioned a Working Party several years ago to review the decision-making process in the Prosecutions Division. The Report of the Working Party had then been submitted to the Legislative Council.

21. In response to Mr Ambrose LAU's question, DPP advised that the Prosecution Policy published in April 1998 was a modernized and expanded version but there had not been any change in policy in comparison with that in force before 1 July 1997.

Leakage of a record of interview of Madam AW with the ICAC

22. Mr David CHU Yu-lin considered that it was a regrettable affair that a record of interview between Madam AW and the ICAC on 4 June 1997 had been leaked to the media. He opined that that had done damage to the independence and integrity of the legal system as the nature of the evidence had been revealed, thereby causing public comment on the case. The incident had also forced SJ to explain her prosecution decision to the public. He asked whether an investigation would be conducted into the leakage.

23. SJ replied that it was for the relevant authority, not the D of J to conduct an investigation if considered necessary, as the statement of interview in question was originally procured by the ICAC. She pointed out that it was part of the criminal procedure that the prosecution should provide whatever evidence or material information in hand which might be useful to the defence. Under the existing system, it would not be easy to trace the source of the leakage.

24. The Chairman clarified that the need to call this meeting arose from the undertaking of SJ given at the meeting on 23 March 1998 that she hoped she would be in a position to make a statement about her decision not to prosecute Madam AW after the trial of the defendants was concluded, not because of the leakage of the ICAC's record of interview.

Conclusion

25. The Chairman thanked the representatives of the Administration for attending the meeting and addressing the matters of concern raised by members. She envisaged that there would be more discussions carried out in the community following the Administration's explanation of the prosecution decision in the case.

26. There being no other business, the meeting ended at 4:30 pm.

Legislative Council Secretariat
17 March 1999