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The following is the speech by the Secretary for Justice, Ms Elsie Leung, in the Legislative Council's motion debate on "Vote of no confidence in the Secretary for Justice" today (Thursday):

Madam President,

I find myself in the invidious position of having to explain why members should have confidence in me. The motion does not say why this Council should not have confidence in me. I therefore do not know what accusations may be levelled against me in this debate. Some Members have had the courtesy of giving me notice of their main concerns, and I would like to thank them for doing so. I would also like to thank the Hon Margaret Ng and the Hon Ron Arculli for giving me advance copies of their speeches.

Reasons for not prosecuting Aw Sian

When notice of this motion was given, I was informed by Ms Ng that she would focus on my decision not to prosecute Ms Aw Sian. I have given two lengthy statements on this issue to this Council's Panel on Administration of Justice and Legal Services, on 23 March 1998 and 4 February 1999. However, since only a few members were present at the Panel's meetings, I wish to summarise the main points for the record.

In March last year, three persons were charged with a conspiracy, which allegedly involved Ms Sally Aw. I will refer to the case as the 'Hong Kong Standard' case. Many people were puzzled that Ms Aw had not herself been prosecuted. When the trial of the three defendants concluded in January this year, the judge explained in his decision that he could understand an initial puzzlement, in those unused to the criminal law, as to how a court could decide that A conspired with B but that B did not conspire with A. The judge explained that this can be perfectly proper, because the same evidence may implicate A but not B. Because of this, it may also be perfectly proper for A to be charged with conspiring with B, but not vice versa.

It is a well-established policy, based on fairness to suspects, that the reasons for prosecution decisions are not disclosed. However, because of the exceptional nature of the Hong Kong Standard case, I did (on 4 February 1999) give reasons for the decision not to prosecute Ms Aw.

The case was exceptional since -

(1) allegations of bad faith made against me had to be answered;

(2) public comments had been made on the assumption that Ms Aw was a guilty party in the conspiracy, and the record of Ms Aw's interview with the ICAC had been improperly leaked to the press. In fairness to Ms Aw, the nature of the evidence against her needed to be clarified;

(3) it was necessary to restore confidence both locally and overseas in our legal system, which had been shaken by allegations of impropriety.

These exceptional circumstances were not, I would add, of my own making. The allegations of impropriety were entirely speculative. Moreover, I emphasised that, in giving an explanation in these circumstances, I was not setting a precedent for the future. It would be grossly unfair to criticise me in future for reverting to the established policy of not giving reasons for prosecution decisions.

Before explaining the reasons for the decision, I explained some fundamental points of prosecution policy. First, no one must be subjected to a criminal trial unless there is clear evidence to justify that course. Secondly, a prosecution should only be brought if the evidence is such that there is a reasonable prospect of securing a conviction, and not merely because there is a bare prima facie case. And, thirdly, even if there is such evidence, a prosecution should not be brought if this would be contrary to the public interest.

As I explained, I had come to conclusion that on the evidence available against Ms Aw, there was no reasonable prospect of securing a conviction. This conclusion was reached on the basis of the following facts.

* The evidence against Ms Aw was nowhere near as substantial as it was against the other three suspects.

* No witness had implicated Ms Aw.

* The evidence against Ms Aw consisted of a record of interview conducted by the ICAC on 4 June 1997.

* That record had to be looked at in its entirety; it was not right to look just at a few questions and answers in isolation.

* Although Ms Aw had said that she wished to raise the circulation figures of the two newspapers, she had repeatedly emphasized that she had no intention to deceive the Audit Bureau of Circulation Ltd.

* Ms Aw said that she was not aware of the illegal acts which her subordinates (as the judge was to find) initiated and, when informed of those acts, she told her subordinates to stop them.

My conclusion that there was insufficient evidence on which to prosecute Ms Aw alone sufficed to dispose of the matter. It was, in fact, not necessary for me to have considered the public interest factors at all. However, as representations about the Sing Tao Group had been made to me, I did give those representations consideration on public interest grounds. The fact that I did so is not a valid ground of criticism. The prosecution guidelines do not prohibit the consideration of public interest factors if there is insufficient evidence. At the most, they make it unnecessary to consider those factors, since a prosecution should never be brought if there is insufficient evidence.

The approach that I adopted in respect of public interest factors, although unnecessary, was entirely in accordance with my department's established, and published, prosecution policy. Paragraph 10 of that publication indicates that two questions that may properly be considered are, first, 'How would the decision to launch a prosecution affect other people?' and, secondly, 'Would the consequences of prosecution be out of all proportion to the seriousness of the offence or to the penalty a court would be likely to impose.' The fact that the combination of factors that I took into account are not specifically mentioned in paragraph 10 of the publication is neither significant nor surprising. The list of factors in that paragraph is not, and cannot be, exhaustive.

After the decision not to prosecute was made, I appreciated that the amount of evidence available, and the public interest factors, could change. I therefore kept an open mind as to the possibility of prosecuting Ms Aw. However, since no new evidence has emerged against Ms Aw, it has not been necessary to revisit the issues.

A proper perspective

Ms Ng now criticises that decision relating to public interest factors. Before that criticism is answered, it is important to put my decision in its proper perspective. The decision did not determine the question whether Ms Aw should be prosecuted. As I have said, there was insufficient evidence to prosecute her. My decision in respect of the public interest factors did not strictly need to be made.

Where a judge, in deciding a case, makes statements that are not strictly necessary for the decision reached, the statements are known as 'obiter dicta', which means things said by the way. Ms Ng is in effect asking this Council not to have confidence in me on the basis of my obiter dicta. Moreover, these obiter dicta were not set in stone, since I accepted that the position could change. Even if Ms Ng's criticisms were justified, which they are not, hers is an extraordinary position to take. The response is out of all proportion to the alleged error.

In any event, I have asked the Director of Public Prosecutions, Mr Grenville Cross, SC, to demonstrate that Ms Ng's criticism is entirely misconceived. He will later this evening, address the criticism. He will speak with the authority of someone who has 23 years of experience, and outstanding ability, in respect of prosecution issues.

For my part, I wish to refute, in unequivocal terms, the allegation that my decision in respect of public interest factors confirms that people of high position have received special treatment, or that there is one law for the rich and one for the poor. Nothing could be more abhorrent to me.

Article 26 of the International Covenant on Civil and Political Rights ('ICCPR'), which applies in Hong Kong by virtue of Article 39 of the Basic Law, guarantees that 'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.' I am therefore required by law, as well as by professional ethics, to observe equality before the law. And I do so.

The false assumption underlying Ms Ng's criticism is that equality before the law means that all persons must be treated identically. That is demonstrably not the case. The jurisprudence relating to Article 26 of the ICCPR establishes that equality before the law essentially means that judges and officials must not act arbitrarily in enforcing laws.

The requirement of equal treatment is violated when a court or administrative decision is based on manifestly arbitrary considerations, that is, considerations that are devoid of any objective justification. A decision is arbitrary especially - but not exclusively - when persons are discriminated against solely on account of one or more of the criteria listed in the second sentence of Article 26. That second sentence prohibits discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The exceptional combination of factors that I took into account in respect of Ms Aw do not begin to fall within any of these categories.

The authorities relating to Article 26 establish that individual features distinguishing one person from another, such as talents and characteristics, may properly play a role in a particular prosecution decision. The approach that I adopted was entirely consistent with those authorities.

I fully accept that other lawyers might have approached the decision in a different way and might have come to a different decision. Prosecution decisions are inherently controversial. However, I completely reject the allegation that the decision I came to was not one that was properly open to me.

I also reject calls to obtain a second opinion on the matter on the basis that it is one of 'public sensitivity'. The origin of the public sensitivity is groundless speculation. Were I to seek a second opinion every time there is groundless speculation about the propriety of a decision, it would be very easy for someone to engineer such a result. Moreover, such an approach could create double standards based on the identity and background of a suspect. I refuse to be forced into adopting such double standards.

Respect for the rule of law

Ms Ng has previously said that I pay only lip service to the rule of law. That is wrong. The sad irony is that it is precisely because of my strict observance of the rule of law that I find myself facing this motion. I have strictly adhered to the following fundamental principles -

(1) that no one should be prosecuted unless the evidence is such that there is a reasonable prospect of conviction - a person should not be prosecuted simply as an easy way out of a difficult situation;

(2) that when a decision is made not to prosecute someone, one should not subject that person to a public trial by media or politicians;

(3) that the public interest is a factor which may need to be taken into account in making a prosecution decision; and

(4) that Article 63 of the Basic Law must be observed and a prosecution decision should not be influenced by the apparent public opinion on the issue.

All these are important principles underpinning the rule of law, but it is through upholding these principles that I find myself criticised this morning. I shall listen to honourable Members' views with care and shall treasure them. But, without meaning any disrespect, no amount of pressure brought on me will prevail upon me to abandon those principles.

Article 63 of the Basic Law provides that the Department of Justice shall control criminal prosecutions, free from interference. It is vital for the community that the Department of Justice retains its independence in relation to prosecution decisions. There must be interference from no one. Although I do not doubt my accountability to this Council in respect of my official duties, the line must be drawn there. There must be no attempt to exert political pressure on my department's decision-making in respect of prosecutions.

The CFA decision

Madam President, one week ago, Ms Ng kindly forewarned me that she was likely to raise, in this debate, the issue of the Court of Final Appeal's decision relating to right of abode. Let me first make one point clear about that decision. Some people have asserted that the Administration has never at any stage said that it respects the judgment in that case and will comply with it. That is incorrect. Both the Chief Secretary and I, for example, have said precisely that. There must be no doubt about the Administration's commitment to the rule of law and respect for judicial decisions.

In the newsletter that Ms Ng issued last week she made serious allegations in respect of the clarification issued by the Court of Final Appeal. She alleged that the independence of the judiciary and dignity of the court have received a great blow. She stated that she was outraged by the invidious position in which the Government had placed the Court of Final Appeal.

Last Friday, 5 March 1999, I gave a full explanation to the House Committee of this Council of my recent trip to Beijing and of the application to the Court of Final Appeal. I explained how, in Beijing, I had promoted understanding of the original Court of Final Appeal decision; had explained the differences between the legal systems of the two places; and had expressed the concerns in Hong Kong. In particular, I informed honourable Members that I had handed over a copy of the Bar Association's two submissions in respect of the decision, plus articles by two distinguished lawyers and copies of the evidence in the cases. I explained that the application for a clarification was properly made, after other options had been carefully considered following my return to Hong Kong. I explained that the court issued a clarification which did not depart from the original decision; that the court considered that it had the inherent jurisdiction to do so; and that it was prepared to do so. I made it absolutely clear that no political pressure whatsoever was applied to the court. The clear fact is that the court's original judgment was not affected. The independence and impartiality of the court were in no way undermined.

Despite my explanation, Ms Ng has this morning continued to criticise my actions. There is clearly nothing I can say that will persuade her to accept that she is misguided. I would ask other honourable Members to consider the issue rationally and dispassionately. I would ask you to accept that not only was the application perfectly proper, but also that it helped to resolve a very difficult problem. I would also ask you to accept that my two communications with the Chief Justice to enable him to convene the Court of Final Appeal as soon as possible are not a legitimate ground for criticism.

Conclusion

Madam President, the criticisms by Ms Ng are, when properly analysed, totally misconceived. There is no basis for this Council to lose confidence in me. I remain committed, as always, to the rule of law, equality before the law, and independence of the judiciary. Nothing I have done throws any doubt on that commitment. I urge all members to vote against the motion.

END/Thursday, March 11, 1999

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