RTHK "Letter to Hong Kong"
by Martin Lee
Broadcast on RTHK Radio 3 on 7 February 1999
In the last ten days, we saw both good news and bad news to the rule of law in Hong Kong. First the good news . The Court of final Appeal on the 29th of January, Friday, laid down a very important decision. This was the first time the Court of Final Appeal laid down principles as to how the Basic Law should be interpreted. It is on any view an historic decision for Hong Kong. It overturned an earlier view expressed by the Court of Appeal in another case that any resolution of the Standing Committee of the National People's Congress cannot be reviewed by any Hong Kong court. And in spite of the suggestion on behalf of the government that Article 24 should be interpreted by the National People's Congress through its Standing Committee the court declined to do so on the ground that that article falls within the autonomy of the Hong Kong SAR and therefore should be interpreted by the court itself.
That decision has restored my confidence in our judicial system. An excellent example has been set by the highest court in the land in defense of human rights in Hong Kong. I am sure other judges and magistrates will follow their example in upholding human rights of our citizens. The judgment was welcomed by the legal fraternity in Hong Kong, but unfortunately the government seems to take a different view. The Chief Executive, for example, was particularly negative about it, and talked about the far reaching and adverse impact on our community. He was of course referring to the large number of immigrants who would be entitled as a right to come and live in Hong Kong as a result of the decision by the Court of Final Appeal. And indeed a number of influential people, including those on the Basic Law Committee have since been attacking that decision.
Many people in the community are unhappy with the decision because they don't want the government to have to spend a lot of money to provide new housing and schools for these new arrivals. But I think we must learn to be positive about this. After all, these people are like us, they are entitled to be here. I therefore call upon that Mr. Tung to provide the leadership absolutely necessary at times like these. He must take the lead and get all the civil servants together and provide sufficient schools and housing for these new arrivals. After all the Tung government is to blame if they are not ready for these arrivals, because the action against the Director of Immigration started in July 1997 so the government should have been prepared for such an event.
Now for the bad news which came 6 days later on Thursday, the 4th of February when Secretary of Justice Miss Elsie Leung attended a panel in the Legislative Council to explain her decision made last year not to prosecute Miss Sally Aw, although Miss Leung decided to prosecute three other coconspirators who worked for Miss Aw. In fact the community wanted an explanation from her as soon as it was announced that Miss Aw would not be prosecuted last year. But Miss Leung asked the community to wait until the conclusion of the trial because any revelation by her of the reasons for not prosecuting Miss Aw might prejudice the fair trial of the other three. And so we waited.
I did not criticize Miss Leung at the time although many other people did. I was quite prepared to give her the benefit of the doubt. I wanted to wait until the case was to hear her explanation before commenting on it. Having heard her long statement and her subsequent explanations, I was simply flabbergasted.
She gave two reasons. Firstly, she said there was insufficient evidence to warrant a prosecution. I do not agree with her. I believe there was sufficient evidence to warrant a prosecution according to what was reported in the South China Morning Post based on the videotaped interview between the ICAC and Miss Aw. But that doesn't matter because it was her decision which counted and not mine. I respect her decision on this matter.
But that was not all. She gave a second ground which justified her decision not to prosecute. It is here that I join issue with her. Miss Leung told us that she also relied on the public interest ground. She told us that the Singtao group of companies which was chaired by Miss Sally Aw was then encountering financial difficulties and they were negotiating a restructuring of their debts with various banks. She said that if Miss Aw were to be prosecuted at that time, the companies might collapse. And that would mean another two newspapers folding up after three others had done so over 1996,1997 and 1998. She said that two thousand people might be out of a job and it might send a very bad message to the international community if another paper had to close down so soon after the transfer of sovereignty.
In other words, she was persuaded by political reasons. But her logic was also totally wrong. Does it mean for example that if Miss Sally Aw had been the head of another company, a land property company, or a bank she would have been prosecuted? Or does it mean that if there were only 20 people working for her, she would be prosecuted? And does it also mean that if her company were in a healthy financial position, then again she would be prosecuted?
To be fair to Miss Leung, she was extremely honest about it because she need not have gone into such detail when she attended that panel meeting. We are grateful to her for having been so candid with us. But I am very disappointed with her explanations. And indeed to many people in Hong Kong, Miss Aw was not prosecuted because she was rich and influential.
On his return to Hong Kong, Mr. C.H. Tung defended Miss Leung, saying that the rule of law is the most important thing we have in Hong Kong and that no one is above the law. If Miss Sally Aw is not above the law, perhaps she is just more equal than others.