Grenville Cross says other ministers have continued to serve after illegal structures were unearthed at their homes, and all the evidence must be considered before Teresa Cheng faces charges or is forced to resign
Although new Secretary for Justice Teresa Cheng Yeuk-wah finds herself in hot water over the illegal structures at her home and that of her husband, Oscar Poon Lok-to, some perspective is nonetheless essential. However reprehensible, illegal structures at ministers’ homes have not previously been treated as a resignation – or a prosecution – issue, and Cheng should not be treated differently.
The Buildings Ordinance (section 14) provides that building work shall not be carried out without the permission of the Building Authority, and that anyone contravening this is liable – unless the work is minor – to a fine of HK$400,000 (US$51,000) and imprisonment for two years on conviction. However, Cheng insists that the changes had already been made when she bought the property, and that there was nothing suspicious about them. If true, they must have been of a high standard, or Cheng, a qualified engineer, would presumably have realised something was amiss.
Once it becomes aware of illegal structures, the Buildings Department has a general policy to apparently issue removal orders rather than rushing to prosecution, which would probably overload the system, given the scale of the problem. Prosecution may be unavoidable if the changes are vast, as with the “underground palace” basement discovered in 2011 at the Kowloon Tong home of the former Chief Secretary Henry Tang Ying-yen. Tang’s wife, Lisa Kuo Yu-chin, who accepted responsibility for its construction, was fined HK$110,000.
Chief Executive Carrie Lam Cheng Yuet-ngor, has, however, concluded that Cheng’s integrity is not an issue, reflecting her previous stance on this issue.
In 2012, for example, when then-chief executive Leung Chun-ying apologised after illegal structures were discovered at his Peak home, blaming “negligence” on his part, Lam, then chief secretary, declared that his integrity was not in question. A rap over the knuckles has always sufficed for officials with illegal structures, provided they take remedial action.
While then food and health secretary Ko Wing-man apologised in 2012 for not seeking approval before merging his two penthouse flats in Kowloon Tong, Exco member (now convenor) Bernard Chan admitted that a rooftop trellis and balcony canopies at his Happy Valley home were illegal, but said they were being demolished. Then-education minister Michael Suen Ming-yeung even apologised for having failed to remove an unauthorised extension at his Happy Valley home for five years, and for disregarding a demolition notice issued in 2006 by the Buildings Department, for which, bizarrely, he was responsible.
Since illegal structures are a clear problem for ministers and an embarrassment for the government, it beggars belief that the issue was not apparently canvassed when Cheng was positively vetted. Had she lied when asked about the structures, this would be an integrity issue, but there is no evidence of that.
If, however, Cheng deliberately misled the bank when signing the mortgage document in 2008, by concealing the existence of the 538 sq ft basement, this would put a very different complexion on things, but that is certainly not the only possibility. The basement may not have been revealed because it was not thought necessary, or because of an oversight, or because it did not exist at that time, and was only constructed thereafter, and the police investigation must now determine where the truth lies.
What is, however, unprecedented is that, once the Buildings Department and the police have completed their respective inquiries, newly appointed director of public prosecutions David Leung Cheuk-yin will have to decide on the possible criminality of his own boss, who is also the official in overall charge of public prosecutions. This will clearly place Leung in an invidious position and, yet again, the need for Hong Kong to have an independent public prosecutions department, as elsewhere, is vividly underscored. Assuming she survives her present ordeal, Cheng will hopefully have the courage to go down this path.
Cheng will, presumably, recuse herself from any involvement in the processing of her own case – and Poon’s – and the public should be assured of this. Leung will need to ensure that everything is done to demonstrate that Cheng’s case is handled appropriately, including greater transparency by the Justice Department. Outside legal advice will need to be obtained, both on the strength of the evidence and on any public interest considerations which may arise. If a decision is taken not to prosecute, the public will need a clear explanation.
In the meantime, an unseemly rush to judgment must be avoided.
In 2012, after just 12 days in office, secretary for development Mak Chai–kwong, an eminent public servant of vast experience, was hounded out after frenzied allegations that he had abused the civil service housing allowance system in the 1980s. It took him almost four painful years to clear his name, but this he did in the Court of Final Appeal in 2016, but by that time it was too late for him to resume his career.
Cheng also has formidable credentials, and it would be a travesty of justice if she were to be treated in a similar fashion. She must receive due process, and the investigations must take their course. Although the time may come when Cheng has no option but to step down, that point has not yet been reached, and it would be a great loss for Hong Kong if she departed prematurely.
Grenville Cross SC is a criminal justice analyst