Chapter 7
Prosecution
To prosecute or not
Since D1 and D2 refused to give an account of the HK$50,000 when interviewed, theoretically the ICAC could not have proved that the money was a bribe from D2 to D1. In addition, there was no further evidence to support that the bribe had anything to do with the tunnel project.
However, the forensic examination report revealed that D2's DNA was the main source of the DNA mixtures found on both the envelope and the banknotes. The ICAC considered it a strong evidence to prove that those HK$50,000 was a bribe from D2.
While the ICAC is given the extensive investigative power by laws, a comprehensive system of checks and balances is put in place to avoid misuse of power. Separate power of prosecution is an important part of the system.
The ICAC is empowered to investigate any cases related to corruption. Upon completion of investigations, the power to prosecute is vested in the Secretary for Justice.
The separation of powers to investigate and prosecute ensures that the ICAC does not have the final say. In other words, no case is brought to the courts solely on the judgement of the ICAC. Prosecution decisions are made by the Secretary for Justice as an effective check on ICAC's power.
The ICAC had repeated discussions with the Department of Justice (DoJ), with the view to present evidence to support DoJ's decision to lay charges. The ICAC was of the opinion that the HK$50,000 was not a reward for a specific act, but a sweetener offered in return for preferential treatment to D2 by D1 as a public servant.
Persistent efforts were made to unearth corroborating evidence to support the above allegation, including whether D1 had given his approval for the award of any unnecessary works in previous maintenance projects to D2. The ICAC also inquired D1's supervisor(s) and subordinate(s) about the urgency and necessity of the Tseung Kwan O tunnel repair works recommended by D1 in August 2018, or whether D1 often approved unnecessary repair works orders to allow D2 to add more to his fortune.
More importantly, D1's subordinate (PW3) had prepared the document for Block Vote application of the repair works of Tseung Kwan O tunnel in August 2018, but it was not until 8 September 2015, the day when D1 decided to go to the mainland with D2 after work, did D1 return the signed paper to his subordinate. What was the reason behind?
After a year of discussion and consolidation work, the Department of Justice decided to proceed with charges.
The case took three years from arrest, prosecution to trial.
"The ICAC believed that the forensic examination report of the Government Laboratory was a strong evidence showing that the money found on D1 was from D2. However, solely replying on this evidence might be shaky.
To obtain more corroborating evidence and prove that the HK$50,000 in bribes was a "sweetener", the ICAC put much effort in preparing exhibits and detailed reports for the court. An investigating officer related, "In our report, we made a comprehensive account of the background, relationship and personal dealings between the duo, such as their travel records and cash deposit entries. We made every effort to present the strongest evidence in court."