The High Court has thrown out two applications to review the justice department’s decision not to prosecute former Hong Kong leader Leung Chun-ying.
Mr Justice Anderson Chow Ka-ming refused to grant leave to activist Tsang Kin-shing and former civil servant Kwok Cheuk-kin, to apply for a judicial review challenging the Department of Justice’s decision on December 12, 2018.
Leung had been accused of a conflict of interest in relation to his non-disclosure of a HK$50 million (US$6.4 million) payment he received from Australian engineering firm UGL, before and after he became the city’s chief executive in 2012.
But the primary question in court was whether judges could review prosecutorial decisions in the first place.
In a 28-page ruling handed down on Friday, Chow concluded that the decisions could be reviewed by the court but only on the basis that the Secretary for Justice has acted outside the constitutional limits of his or her power to control criminal prosecutions.
“It has not been shown that such ground exists, or arguably exists, in the present case,” the judge wrote. “I consider that the two applications for judicial review are not reasonably arguable, and have no realistic prospect of success.”
Tsang, who was backed by a Democratic Party campaign to bring charges against Leung, said he was disappointed by the ruling but lacked the money to appeal.
The present application had already cost the League of Social Democrats member HK$100,000, according to the campaign’s financial report.
But party lawmaker Lam Cheuk-ting said the campaign would go on and revealed the party had already sought advice from two senior lawyers on the possibility of a private prosecution.
“I think it’s our duty to bring them to justice,” Lam said. “We will continue to fight against the ridiculous decision.”
Kwok, a serial litigant known for taking the government to court, said he would consult his lawyers to assess the chances of an appeal.
He also revealed that he would renew his efforts by mounting a private prosecution against Leung.
“We must,” Kwok told reporters outside court. “We can’t let [Leung] off the hook.”
The HK$50 million payment stemmed from an agreement Leung, as director of property company DTZ, made with UGL during the Australian firm’s acquisition of DTZ in 2011.
The Independent Commission Against Corruption launched an investigation in 2014 after it received complaints prompted by a report in an Australian newspaper which raised various allegations against Leung.
Critics had argued the receipt and non-disclosure of the money from UGL could amount to misconduct and corruption. But Leung said the payment was related to his service before he left DTZ.
A select committee was set up at the Legislative Council in 2017 to look into Leung’s conduct. But in May that year it was revealed that Leung made more than 40 changes to a document submitted to the committee by its deputy chairman Holden Chow Ho-ding, which critics said was tantamount to interference.
The decision not to prosecute Leung and Holden Chow was roundly criticised, primarily because the department had opted not to seek external legal advice as it had in previous cases involving high-ranking officials, such as former chief executive Donald Tsang Yam-kuen.
Tsang Kin-shing’s lawyer, Jeffrey Tam, argued that Secretary for Justice Teresa Cheng Yeuk-wah had “clearly misunderstood” and misapplied established policy when she found there was no need for outside counsel, thereby reaching an illegal decision.
So the applicants asked the court to quash the decision, and to order Cheng to press charges against Leung and Holden Chow.
But Benjamin Yu SC, for the secretary, pointed out her control of criminal prosecution is protected by Article 63 of the city’s mini-constitution, the Basic Law.
Prosecutorial decisions can therefore only be reviewed by the court to a very limited extent, and under truly exceptional circumstances, he said, like when the secretary had obeyed a political instruction or acted outside her constitutional powers or in bad faith.
“The facts of this case do not justify the granting of leave,” Yu said.