tim's experiment

Nice of Apple Daily to publish in full the letter it received from C.Y.Leung’s lawyers. Very interesting reading. If you have just come in, what is going on here is that Apple Daily, a racy Hong Kong tabloid with pro-democracy inclinations, published an editorial urging newly elected legislators to investigate a deal under which Mr Leung was paid a large sum of money by an Australian company called UGL. One of the reasons why this was a good idea, the newspaper thought, was because it might avoid the prospect, which many Hong Kong people find appalling, of Mr Leung running for another term in his present post.

As it happens I am something of a connoisseur of threatening letters from lawyers. Many years ago, when I was running an investigative team for the Hong Kong Standard, it was decided that I should deal with all legal matters which came up, on the (as it turned out) pessimistic assumption that our investigative work would be responsible for most of them. There are several peculiar features to Mr Leung’s lawyers’ letter.

The first one is that it comes from Messrs Sit, Fung, Kwok and Shum. I presume they are a respectable firm, though not perhaps very experienced in this line of work. But Mr Leung does not need to resort to private lawyers, respectable or otherwise. Senior government officials who wish to sue for libel have to ask for permission (which in the case of Mr Leung I suppose he can give himself) and having obtained permission get the free services of the Department of Justice. Well we know Mr Leung is not short of a bob or two. But one does wonder why this particular chore was outsourced. Was the DoJ consulted, and discouraging?

The second unusual feature of the letter is that it runs to seven pages. The law of libel is very clear on one point. It is not up to the person defamed to prove that the article complained of is wrong. If the article damages someone’s reputation then it is up to the author/publisher to prove that it was justified (which means true in lawyerspeak), or an expression of opinion protected by freedom of speech. Consequently letters complaining of defamation are commonly quite short. They identify the item complained of, point out that it is defamatory, and ask for a correction, apology, and money according to taste. Now observe the letter re Leung, which masochists can find here: https://www.hongkongfp.com/2016/09/30/legal-letter-full-hk-chief-exec-cy-leung-threatens-sue-apple-daily/

Normally I would expect the writer, having identified the item complained of and the meaning to which he objects, which is taken care of by the bottom of page 1, to proceed directly to the paragraph at the bottom of page 6, which begins “Mr Leung requires you to take the following steps immediately …” Instead we get four pages of argument, buttressed by quotes from newspapers and Carrie Lam, apparently intended to convince the reader of Mr Leung’s transcendent innocence. Admittedly quite a lot of space is accounted for by the need to provide translations of some things, but even so this generosity is puzzling. Mr Leung, as I pointed out above, does not have to prove his innocence. The law assumes that. And printing this much material brings other hazards.

It is, for example, far from surprising that the whole letter is now in the public domain. In the old print days a long letter might have been a deterrent to reproduction, because it would have taken space. But on the internet space is free. Moreover having instructed lawyers to send it on his behalf Mr Leung can hardly complain if the recipient shows it to other people. Unfortunately the way the general public look at these things is often not the way lawyers look at them. Mr Leung’s lawyers may feel they have established his innocence beyond any possible doubt. The lay person may wonder how so much smoke could be generated without a fire somewhere. He may recall Hamlet (“Methinks the lady doth protest too much”) or Mandy Rice Davis (“He would say that, wouldn’t he?”). Even if the layman comes to the undisputably correct conclusion that in the matter of corruption Mr Leung is as pure as the driven snow, his reading may leave him with misgivings about other aspects of Mr Leung’s ethics.

Consider the explanation quoted from Ms Carrie Lam. Ms Lam says that when Mr Leung resigned from the company (then called DTZ) in 2011 there was a “resignation agreement”. The gist of this was that UGL – whkich was buying DTZ – would pay Mr Leung large sums over two years in return for which Mr Leung “would not move to a competitor, set up or promote any business in competition with DTZ, or poach any people from DTZ.” and Ms Lam goes on to say that this was “standard business practice”. Really? You sell someone a business, and then you expect them to pay you extra for a promise not to compete or poach their staff? Well this may be perfectly legal. But is it nice?

Then there is the question of the timing. “Both Mr Leung’s resignation from DTZ and conclusion of the agreement with UGL took place before he was elected as the CE, and at the material time, he had already resigned from Exco,” says Ms Lam. So the full story, it seems, goes like this. Mr Leung resigns from Exco because he wants to run for CE. He then resigns from DTZ. He then extracts a large sum of money from the buyers of DTZ in return for a promise that he will not compete with them. And while this extraction is taking place he is doing his best to get a well-paid full-time job as CE, which will effectively preclude both competition and staff poaching. Did Mr Leung mention, while he was negotiating his resignation agreement, that he was contemplating a full-time career in public administration? Well we can perhaps allow some latitude at that stage. After all the result of the election was not certain. If Henry Tang’s basement had not surfaced I suppose Mr Leung might have had to go back to surveying for a living. But having been elected he was still receiving payments from the resignation deal, even though he was at this stage clearly in no position to either compete or poach. Does this count as honest in business circles?

Then we come to the question of declaring an interest. Ms Lam’s take on this is that “Mr Leung has not provided any service to UGL since signing the resignation agreement.” Ms Lam did not say in so many words that Mr Leung had declared, or not declared an interest, but apparently intended her listeners to infer from the fact that Mr Leung had not performed any service that there was no interest to declare. But this clearly will not do. As the Prevention of Bribery Ordinance makes clear, one may be paid to do something or one may be paid not to do something. It appears that during the first two years of his term Mr Leung was receiving money in consideration of his not competing with UGL or poaching its staff. I do not think anyone would suppose there was any serious danger of this affecting the discharge of his duties. But it was clearly an interest and if the rules really did not require its disclosure then the rules should be changed. In the meantime one must have doubts about Mr Leung’s judgement in the matter. If he had explained the whole thing years ago, before it became journalism fodder, it would have saved us all a lot of trouble.

Finally Mr Leung’s lawyers complain that the intention of the article complained of is to deprive him of “his fundamental right … to stand for the 2017 CE election”. This is an unfortunate inspiration. Mr Leung’s administration does not appear to believe in a fundamental right to stand for election, at least if you have views it disagrees with. Also this is based on a misunderstanding. The election is not an election. It is fixed. Consequently nothing that Apple Daily says about Mr Leung can affect his chances, which appear to be quite good, even though three quarters of the population spit at the mention of his name.