No prosecution: Director of Public Prosecutions Grenville Cross has decided not to prosecute former Financial Secretary Antony Leung for buying a luxury car shortly before he announced an increase in the First Registration Tax in the 2003 Budget.

Director of Public Prosecutions Grenville Cross has decided not to prosecute former Financial Secretary Antony Leung for buying a luxury car shortly before Mr Leung announced an increase in the First Registration Tax in the 2003 Budget.

The decision was based on full consideration of the evidence, the law and opinions from two leading private counsellors, in Hong Kong and England.

At an early afternoon press conference, Mr Cross said it could not be proved Mr Leung deliberately sought to evade tax on a car he purchased in January, 2003. Secretary for Justice Elsie Leung accepted his decision, he said.

Ms Leung had delegated the task of deciding whether or not to prosecute the former financial secretary to Mr Cross to avoid any perception of bias because of her former working relationship with Mr Leung. The two served together on the Executive Council.  

Mr Cross stressed that, had the evidence provided a reasonable prospect of conviction, it would have been in the public interest to prosecute Mr Leung.

No reasonable prospect of securing conviction 

Leading counsel from the private Bar, John Griffiths and Martin Wilson, concluded that when the totality of the evidence was examined, a prosecution of Mr Leung for the offence of misconduct in public office could not be justified. A reasonable prospect of securing a conviction in the case did not exist, they said.

Mr Griffiths and Mr Wilson were correct to advise that although Mr Leung should have made a declaration to the Executive Council about his car purchase, this was not misconduct of sufficient seriousness to justify prosecution. It appeared on the evidence to be due to nothing more sinister than a desire to avoid personal embarrassment.

When all the evidence in this case was weighed, criminality could not be established to the required standard to institute a prosecution, Mr Cross said.

Admissible, substantial, reliable evidence lacking

Mr Cross added that prosecutions in Hong Kong could only ever be instituted on the basis of sufficient evidence. A prosecution should never be started unless the prosecutor was satisfied that there was admissible, substantial and reliable evidence to justify placing a person upon trial.

If, once everything was considered, it was decided that a reasonable prospect of securing a conviction was absent, a suspect would not be prosecuted, Mr Cross said.

"It has never been the rule in this jurisdiction that those suspected of criminal offences must automatically be the subject of prosecution," he added.

Chief Executive respects the decision 

Chief Executive Tung Chee Hwa respects the decision made by the Department of Justice.

Article 63 of the Basic Law clearly stipulates that Hong Kong's Department of Justice will control criminal prosecutions, free from any interference.

The Government will make every effort to safeguard the rule of law, which is the cornerstone of Hong Kong's success, a spokesman for the Chief Executive said.

In response to the decision, the ICAC said it is its duty to investigate corruption allegations in accordance with the law, while it is the Department of Justice's prerogative to decide on prosecutions.

In the course of investigation, it said the ICAC always does its utmost to collect evidence.

In accordance with established practice, this case will be reported to the Operations Review Committee.