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Tuesday, December 18, 2018, 11:04
Decision not to prosecute Leung vindicates him
By Tony Kwok
Tuesday, December 18, 2018, 11:04 By Tony Kwok

Tony Kwok praises the Department of Justice for not prosecuting former CE over allegations about a secret payment, pointing out that the decision was based on sound legal arguments

When Leung Chun-ying was elected as the Hong Kong SAR’s third chief executive in 2012, the opposition parties were alarmed as they knew they would be dealing with a man known both for his shrewdness and firmness. Hence it did not take much persuasion for them to gang up on him in obstructing his official agenda and even discrediting him on a personal level. With the aid of their foreign intelligence network, it was first reported in an Australian newspaper that Leung had allegedly accepted a secret payment from UGL over its purchase of DTZ, of which Leung is a director. The payment stemmed from a deal Leung struck with UGL, under which he agreed not to form a rival firm.

Despite the well-known fact that such a deal is a normal commercial practice in business acquisitions, the opposition parties swiftly launched an all-out smear campaign which lasted four years, including staging high profile complaints to the Independent Commission Against Corruption and pressuring the commission for results, calling for the formation of a select committee in the Legislative Council to investigate the matter, and collecting millions of dollars in public donations to finance their overseas trips to get foreign law enforcement agencies to take up the investigation, all to no avail.

Speaking from my 27 years of experience serving the ICAC as a senior officer, I can say that the decision made by the Department of Justice not to prosecute Leung is the fair and right one and based on a solid legal basis.

 Under section 9 (1) of the Prevention of Bribery Ordinance, Cap 201, it is an offense for any agent to, without lawful authority or reasonable excuse, and without his principal’s permission, accept an advantage as an inducement to or reward for his doing any act in relation to his principal’s affairs.

In relation to the case of Leung, at least three key ingredients of the offense were absent. Firstly, DTZ has stated that they were aware of the deal and had no objection. On that alone, there is no case for Section 9. Indeed, the Australian newspaper which first reported this case agreed to withdraw the report after learning this fact.

Secondly, on whether the acceptance is related to his principal’s affairs, the recent Court of Final Appeal judgments (Stephen Chan Chi Wan’s case), “Ribeiro PJ’s analysis of the need, if guilt under Section 9 is to be established, for there to be conduct adverse to the principal’s interests”. But in this case, the principal, DTZ, clearly suffered no loss. Significantly, if Leung had instead refused to enter the deal with UGL not to set up a rival firm, UGL might be reluctant to proceed with the purchase, as the DTZ branch managed by Leung was the most profitable arm of DTZ.

In any event, Leung’s actions are entirely above board as such a deal is actually quite common in commercial takeovers and the whole process was done under transparent professional legal advice and with proper legal documentation.

It should be noted that the investigation has been subject to close monitoring and scrutiny by the ICAC’s watchdog committee, the Operations Review Committee, who had full access to the details of the investigation and legal opinion before they agreed to ICAC’s decision to close the file. It is worth noting that the committee includes 13 independent members selected for their respective prominence in various major sectors of society. 

The investigation has undoubtedly taken a toll on Leung in view of the distraction and bad press arising from this smear campaign throughout most of his tenure as CE. It certainly has prevented him from giving his fullest attention to serving the people of Hong Kong.

In the interest of justice, ICAC should investigate the LegCo member Lam Cheuk-ting and his opposition party’s mates for possibly breaching Section 30 of the Prevention of Bribery Ordinance in divulging the identity of the complainant, suspects and other details of the ICAC investigation. It is particularly inexcusable as Lam had been trained as an ICAC investigator and should have known better the spirit and legal implications of Section 30.

ICAC should also investigate the public donation exercise launched by Lam to see if he has abused his position as a LegCo member thus having committed the offense of misconduct in public office. I would also urge those who had been misled into donating money to Lam to file a civil suit against him. Leung should also consider launching civil proceedings against Lam and others for possible libel.

Clearly the LegCo select committee concerned should be terminated. It has wasted enough public money to become an instrument of the opposition parties to grind their political axes, and stage political shows against the government to burnish their public image.

The author is the first Chinese deputy commissioner of ICAC and head of operations, and currently an adjunct professor of HKU SPACE and an international anti-corruption consultant.


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