LCQ2: Regulation of officials' handling of private affairs in their official capacity and transfer of evidence of cases to overseas prosecution departments
Following is a question by the Hon Ronny Tong and a reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (October 23):
Earlier, the local media reported on an Italian court case in which the accused, a former Italian senator (the ex-senator), revealed when giving evidence that the Chief Executive (CE) of the last term, being a Catholic, had requested the ex-senator in 2008 to arrange for him a private audience with the then Pope Benedict XVI through the Special Representative for Hong Kong Economic and Trade Affairs to the European Communities, Brussels (the Special Representative) at that time, who is the incumbent Permanent Secretary for Transport and Housing (Housing). The ex-senator also said that he had agreed to make the arrangement, but had demanded as an exchange condition the Hong Kong Government's refusal to transfer to the Italian prosecuting authority evidence of a corruption and money laundering case involving the former Italian Prime Minister, and that the Special Representative had indicated in a written reply to him that the former had discussed the matter with the then Secretary for Justice and was following up his request. Regarding the regulation of CE and government officials' handling of private affairs in their official capacity and the authorities' transfer of evidence of cases to overseas prosecution departments, will the Government inform this Council:
(a) which officials of the HKSAR Government had handled the aforesaid incident, and whether the audience took place; if it did, of the details, including the date of the audience and whether it was official;
(b) whether CE has the power under the existing regulations to instruct officials to handle private affairs for him; if so, of the relevant criteria and the monitoring mechanism in place to prevent abuse of such power; whether the scope of such private affairs covers those involving personal religious belief; if it does not, whether the Government will investigate if anyone had abused the power for personal gains or committed acts of misconduct in the aforesaid incident; if it will, of the details; if not, the reasons for that; and
(c) whether CE has the power under the existing regulations to instruct the Department of Justice and the Judiciary to refuse the transfer of evidence of criminal cases to overseas prosecution departments; if so, of the legal basis and source of the power; whether the Government will investigate if anyone had committed acts of misconduct or unlawful acts such as perverting the course of justice, etc. in the aforesaid incident; if it will, of the details; if not, the reasons for that?
My reply to the three parts of the question is as follows:
(a) According to records, the Chief Executive (CE) of the last term did not visit Europe in 2008, or meet with the Pope. Moreover, the CE of the last term did not request a former Italian senator through the then Special Representative for Hong Kong Economic and Trade Affairs to the European Communities, Brussels (the then Special Representative) to arrange for him a private audience with the then Pope Benedict XVI in 2008.
(b) Article 48 of the Basic Law prescribes the powers of the CE, including to lead the government of the Hong Kong Special Administrative Region (Government) as its head. The CE and the Government he leads have all along been ruling according to, and abide by, the law.
The relevant Government economic and trade offices (ETOs) and the Information Services Department have all along been providing support for the CE's duty visits. As the official programmes of such visits are mostly very packed, where necessary, the ETOs will assist appropriately with regard to the non-official activities during a visit, in order to ensure the smooth conduct of the entire visit. That said, official activities must take priority in the overall visit arrangements, as well as the work of the ETOs.
(c) On legal assistance in criminal matters, the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) (MLAO) has set out clearly the relevant provisions on the arrangement for Hong Kong's handling of requests for assistance in criminal matters from other jurisdictions.
On the media reports mentioned in the Hon Ronny Tong's question, the Department of Justice (DoJ) issued a press release on October 3, 2013 (the text of which at Annex), to set out in detail the relevant findings. As stated in that press release, the DoJ received in September 2006 a Letter of Request issued by the Italian authorities asking for assistance in respect of, among others, the production of bank documents, as well as the documentary evidence by way of search and seizure at identified office and residential premises, in respect of the criminal proceedings and investigation of a case in Italy. On January 16, 2007, four search warrants were issued by a Magistrate in Hong Kong authorising the search of the relevant office and residential premises pursuant to the MLAO. These warrants were executed on January 18, 2007, yet due to numerous intervening court applications and hearings in respect of the matter, the relevant materials seized under such warrants were only sent to Italy in August 2013. Throughout the entire period, the DoJ had acted strictly in accordance with the laws of Hong Kong including the MLAO. The entire process in respect of the handling of the Letter of Request has never been compromised in any way, nor have any irrelevant considerations been taken into account.
As stated in the said press release, throughout the period from September 2006 to August 2013, the only communication between the then Special Representative and the DoJ regarding the above-mentioned Letter of Request was his e-mail exchange with the then Acting Law Officer (International Law) (Acting Law Officer) on October 9 and 10, 2007, which did not mention anything about any request to meet the Pope: the then Special Representative only informed the Acting Law Officer that the then Senator Gregorio (then the Chairman of the Italian Senate's Defence Committee and one of the then Special Representative's contacts in Rome) had approached him and enquired in respect of the progress concerning the execution of the Letter of Request in Hong Kong. The then Special Representative stated that he had told the then Senator Gregorio that if a case has been brought to the courts, then it would not be possible for the Government to comment. He asked the DoJ for advice as to what, if anything, could be said to the then Senator Gregorio. In her reply to the then Special Representative's email on October 10, 2007, the Acting Law Officer confirmed that the DoJ had received the Letter of Request and informed the then Special Representative that the matter was subject to judicial review proceedings as the parties concerned challenged the validity of the search warrants and the legality of their execution. The Acting Law Officer concluded by advising the then Special Representative that he tell his contact in Rome that the legal issues arising out of the execution of that part of the mutual legal assistance request by the Italian Government were before the court in Hong Kong. Other than the above, there was no communication between the then Special Representative and any person within the DoJ (including the Acting Law Officer and the then Secretary for Justice) in respect of the execution of the Letter of Request. The then Secretary for Justice confirmed that he had had no discussion or any other form of communication with the then Special Representative over the handling of this matter, nor was he copied the email exchange between the then Special Representative and the Acting Law Officer mentioned above. Accordingly, when handling the execution of the Letter of Request, the DoJ has not taken into account any factors irrelevant to the case, including any attempt to arrange a meeting with the Pope.
Thank you, President.
Wednesday, October 23, 2013