Teresa Cheng should have sought independent counsel for CY Leung’s case – that she didn’t is worrisome
- Grenville Cross says policy and precedent are clear: the Justice Department should have sought an outside opinion, and Teresa Cheng’s answer for why she didn’t suggests she’s uniformed
The first situation involves cases where there is a need for expert advice which is not available within the department itself. In the second, a case may be briefed out to a private lawyer where the department has no suitable counsel available to appear in court. Third, the size, complexity and length of a case may necessitate briefing out.
Fourth, it may be required “to address possible perceptions of bias or issues of conflict of interest”. Fifth, briefing out may be necessary to ensure continuity and economy, as where a departmental prosecutor who has been handling a particular case moves into the private sector.
The sixth situation arises where someone in the Department of Justice itself is suspected of a crime and an outside opinion is sought so that justice can be seen to be done.
The fourth principle is adopted in politically sensitive cases, as where public figures are criminal suspects, and it has been applied consistently since 1997 by all previous secretaries for justice: Elsie Leung Oi-Sie, Wong Yan-Lung and Rimsky Yuen Kwok-keung.
The reason Leung, Wong and Yuen all sought independent legal advice in politically sensitive cases was not that the department’s own prosecutors could not decide on the cases, but to reassure the public that the suspect was not receiving preferential treatment because of his or her elevated status.
If independent legal advice was obtained, it also helped to shield the department itself from possible allegations of bias if a decision was ultimately taken not to prosecute.
Of course, even where outside advice was obtained, the final decision on the case would still be taken by the department, albeit having had the considerable benefit of an independent legal opinion.
Leung’s situation quite clearly fell squarely within briefing out principle No 4, yet when Cheng was asked why independent advice had not been sought, she could only refer to principle No 6, claiming this was only necessary when someone from within her own department was suspected of committing an offence.
Briefing out principle No 6 was, of course, irrelevant to Leung’s situation, and Cheng’s answers suggested she was unfamiliar with the briefing out policy of her own department.
Cheng is new to public prosecutions, and one possible explanation is that her own prosecutors had not briefed her properly on how the department has always handled politically sensitive cases, which is obviously concerning.
Although some people have claimed that outside legal advice was not required in the Leung case, this flies in the face of historical precedent.
It also disregards the collective wisdom of the former justice secretaries, all of whom appreciated that an independent perspective in politically sensitive cases is absolutely vital if the department’s final decision is to command public confidence.
Although it is true that ICAC cases are scrutinised by its Operations Review Committee, which contains several lawyers, its mandate is confined to ensuring that the ICAC itself has properly investigated its cases, and it exercises no oversight over legal decisions.
There will be great sympathy for Leung himself. After the strain of an investigation which lasted an unprecedented four years and two months, he was fully entitled to have had his case processed in accordance with standard procedures, and to be free of further controversy.
If she can address these matters satisfactorily, she will have gone a long way towards restoring public trust in her leadership of her department.
Grenville Cross SC is a criminal justice analyst
