Former corruption investigators and legal experts have called into question the Hong Kong graft buster’s decision not to approach Bank of East Asia chairman David Li Kwok-po during its 44-month bribery probe into former chief executive Donald Tsang Yam-kuen.
Director of investigation at the Independent Commission Against Corruption (ICAC), Ricky Yu Chun-cheong, told the High Court the commission did not interview Li between 2012 and 2013 because it did not expect the bank boss to cooperate.
Yu said ICAC staff spent five months negotiating with BEA before even being allowed to speak to bank workers.
Tsang, 72, was accused of one count of accepting an advantage and two counts of misconduct in office. The jury on Friday could not reach a verdict on the count of accepting an advantage, and found Tsang not guilty of one of the misconduct charges.
The remaining count, which Tsang was found guilty of, related to the former chief executive’s failure to disclose his discussions with East Pacific Holdings director Bill Wong Cho-bau over a mainland penthouse to the Executive Council between 2010 and 2012.
Exco was at the time considering – and eventually approved – a digital broadcasting licence application by radio station Wave Media, of which Li and Wong were shareholders.
During Tsang’s trial, the prosecutor cited the “terrible coincidence” that Li had withdrawn HK$350,000 in cash from his BEA account on July 16, 2010, and Tsang’s wife, Selina Tsang Pou Siu-mei, deposited the same amount of cash into the couple’s joint account at the same branch just 35 minutes later.
Former director of public prosecutions, Grenville Cross, said he was “surprised” by the ICAC’s actions during the investigation.
“I am surprised that the ICAC did not approach David Li to ask him about the payment, particularly as the withdrawal of the HK$350,000 was something upon which the prosecution sought to place reliance,” he said.
“Normally in this type of case, anyone who has or might have relevant evidence... is approached by investigators and invited to assist.
“This, after all, was an investigation that lasted 3 years and 8 months – probably the longest ever for a single suspect inquiry, and I would have thought that after so long, no stone would have been left unturned.
“However, since the ICAC’s decision not to approach Li was presumably endorsed by the prosecution, I can only assume that there was more to this than meets the eye.”
Former ICAC investigator turned Democratic Party lawmaker, Lam Cheuk-ting, said the graft buster could have invited Li to attend a formal interview under caution, which would involve advising the bank boss of his rights.
He said he was shocked to see the ICAC “completely give up on Li”.
“If you don’t interview someone because you assume he or she won’t answer your questions, then 90 per cent of the corruption cases need no investigations,” Lam said.
“The practice goes against past training I received when I worked there. The ICAC should explain to the public what happened.”
Lawmaker James To Kun-sun said it was a complete “negligence of duty” for the ICAC not to question Li, as details relating to the HK$350,000 payment were clearly missing.
“It is a must to approach Li. It doesn’t take time and the team was not in a rush. I don’t see any downside to this,” To said. “Maybe Li would tell you he did give the money to Tsang for whatever reasons. How would you know?”
Stephen Char Shik-ngor, a barrister who previously worked for the ICAC for 28 years – including in the capacity of chief investigator – said the ICAC’s actions were “uncommon”.
“Surely the witness has the right to refuse to assist the probe. If he or she refuses, then you make a note on the record (that they refused). But at least you have to try,” Char said.
“Every decision made by the ICAC must have a rationale behind it. Maybe there were special reasons behind it.”
An ICAC spokesman said on Friday night: “In view of the ongoing legal proceedings, it is not appropriate for the ICAC to make any comment on the case.”