This time, our guest is Senior Counsel David Leung, whose outstanding career with the Department of Justice culminated in a three-year spell as Director of Public Prosecutions. David reflects on his legal studies and early days as a solicitor, the responsibilities of being a public prosecutor, and his recent return to private practice. He talks with our Senior Partner, Colin Cohen.
Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter
[00:00:34] Colin Cohen: David, welcome to Law & More. And like I ask all my guests, what's been keeping you busy recently?
[00:00:40] David Leung: Now, first of all, thank you very much and it's a great honour and privilege should be able to be here. I have started practice in January, so practice work.
[00:00:48] Colin Cohen: So the grind of private practice as a Barrister as Senior Council. We'll get onto that a little bit later but I'd like to talk a little bit about your distinguished career as a public prosecutor. I'm gonna go a little bit back to your upbringing. Tell me a little bit about your family background, where you went to school and how did you really find your way into the law.
[00:01:07] David Leung: Well, just like a lot of people in Hong Kong I was basically raised in Hong Kong. I study all my primary school, secondary school here in Hong Kong. And then there came a stage where I have to make a decision as to which career that I was heading to. Now, it's actually a bit of a twist for me to become a lawyer. Originally I fought to become a teacher because I thought that one of the skills that I have is to talk and to try to explain things in a simple way. But then cut the long story, originally I applied for math or physics. But my results were not good enough for those. And then I was picked by the law faculty. It was time where the political uncertainty of Hong Kong between China and UK, so not a lot of people applied to become a law student. And so there I was.
[00:01:59] Colin Cohen: By pure chance, a law was something to get a profession I presume.
A little bit about your interests, at school before you went into law.
[00:02:07] David Leung: I've always liked to do some sports swimming and racket games. I'm not too good at football because I'm not tall enough, strong enough like the others So I usually play racket games, so a bit of badminton, squash, tennis, and swimming.
[00:02:22] Colin Cohen: Okay, let's talk a little bit about Hong Kong U because I'll make a full and frank disclosure that I was a teacher on the PCLL. You were just the year before, I didn't have the privilege of teaching you, but you did know about me.
[00:02:34] David Leung: Yes of course, I didn't have a privilege, Colin, to be your student. I joined Hong Kong U at 86 to 89 doing the LLB, I think you left around 88. And so I've always seen you as a lecturer and I said okay this is a tall funny and clearly intelligent lecturer. But somehow we just missed each other during lectures, but those were fun days.
[00:02:56] Colin Cohen: Yeah, you had many many colleagues of yours who have now risen to very eminent posts even in the judiciary and in practice as
So I'm interested in the type of things you did at university and PCLL. What was your intention, was it to go to the Bar or become a Solicitor?
[00:03:11] David Leung: As I study law I knew that I like efficacy, I like to speak, I like to have the time in court. But because I was the elders in the family, so starting off as a barrister not knowing how much you're going to earn whether you need a upfront running capital poses a little difficulty for me. So I've always keep being a barrister as an option but just to have the financial stability in terms of income, so I chose to take the solicitor stream. So I started off with trainee solicitor two years down the road, became a solicitor and then work towards that.
[00:03:46] Colin Cohen: And type of work as a solicitor?
Anything exciting? Or is it down to conveyancing and wills or anything of interest?
[00:03:53] David Leung: Well life's treat me very well. I was doing a bit of variety of work. Personal injuries, matrimonial, and employees compensation. And one interesting aspect that led me eventually to become a prosecutor was because one of the clients was the insurance companies and they would instruct At least my firm at that time to defend traffic offences. So within a year, I did about 40 trials. Careless driving, reckless driving, running through all sorts of Magistrates' court. And so that starts to develop my efficacy.
[00:04:26] Colin Cohen: Yeah, and what was interesting, you were admitted as a solicitor in 1992 and yet three years later you then joined the prosecution's division of the legal department as it then was and became a crown council.
[00:04:40] David Leung: Correct.
[00:04:40] Colin Cohen: Quite a dramatic step to take.
[00:04:42] David Leung: Yes, actually it's like this. As I've told you the trials that I did, I found okay this is what I love. I love to go to court as a solicitor. It's very difficult, I'm sure you understand that If you are out of office say two full days doing trials in a week. Then it eats into the time that you'll need to sit in the office do the paperwork. And then I happen to have a colleague at the firm that I was working in, it's Mr Joseph To, he's now a retired magistrate. And then he worked there briefly, and then later on he joined the then legal department and then he told me about the work as a prosecutor. And I thought okay this is the type of things that I love to do and I can explore the opportunity for efficacy. So I apply and I was fortunate enough to be admitted.
[00:05:30] Colin Cohen: And it was 25 years of a very distinguished career. Starting off the pre handover days, who was your mentors as you were working your way up DOJ because you were always being promoted as you went along during that 25 years.
[00:05:44] David Leung: The three persons whom I owe great gratitude it. First one is Peter Chapman. I was a summer student in a law firm. And the first time I met Peter was when he prosecute a case, and I said okay, this is a prosecutor who knows all his materials back and forth. And he was calm, he was articulate and then when later on when I joined the DOJ he also was prosecuting. And then sometimes I talked to him and spoke to him and then he would share with me too. Second one, it's Andrew Bruce.
[00:06:12] Colin Cohen: He was a deputy high court judge very recently. And the case in which I was instructed on.
[00:06:16] David Leung: Yes, and then Andrew and I work for a long time with the DOJ before he left for private practice but all along he has been a great mentor and good friend. He would give me advices in terms of how best to present a case What are perhaps the secondary points not to be focused on but focus on the main issue. Last one is Kevin Zervos.
[00:06:37] Colin Cohen: Who's another who became a DPP is now a High Court Judge, now in the Court of Appeal. Was it a steep learning curve.
[00:06:44] David Leung: Yes, very much so because originally when I first started off I only had experiences prosecuting traffic offences in the Magistrates' Court. One or two civil trials in the district court. And then I distinctly remember in the first week, I missed the training. Because I joined in October and their training starts in September. So I was given the so-called prosecution menu, basically materials you read, you brush up. And then I was sent to the Western Magistrates' Court to start my prosecution. Training by doing actual cases.
[00:07:17] Colin Cohen: Now we only cross swords once. Well no, quite a few other times but it was a very nice case. It was a case whereby I think you were at that stage you were reasonably senior.
[00:07:28] David Leung: I think senior public prosecutor.
[00:07:30] Colin Cohen: Yeah, it's an interesting case because we can talk about it because I was instructing.
It's down I had Jerry McCoy and we're in the Magistrates' Court and I was acting for a very fine establishment Lan Kwai Fong area, I will not mention any names. Where my client got accused of breach of a liquor licensing there was dancing.
the whole case turned on what is meant by dancing. And Jerry McCoy dug up some very very old past history of the law and it was decided a history of the legislation and we had to have a big debate as whether just standing still and slightly gyrating up and down comes within dancing. Whereby you did an amazing job but in the end of the day I think Jerry in his normal
[00:08:12] David Leung: Yeah
[00:08:13] Colin Cohen: the Magistrate.
[00:08:14] David Leung: then there was a doubt as to whether the totality of the evidence demonstrated that there were dancing and eventually I think the defendants were acquitted.
[00:08:22] Colin Cohen: Yes, gloriously acquitted which I enjoyed. We we also crossed swords in other cases which we won't talk about cause they're ongoing. Now what I'm interested in this, is that you also, around that time in 2013 you completed a masters in law in human rights.
What made you do that?
[00:08:38] David Leung: Yes, I was actually working. Now number one was Kevin Zervos did that and he basically shared with myself and also other prosecutors that is an amazing course and it helped tremendously in the professional work. And also at that time case law start to develop the human rights dimension. A lot of cases, you'll see the judges using those proportionality approach. So I thought it would help. And I thought okay alright, so I bite the bullet despite the heavy workload doing it part-time for two years. I think it's two nights per week with assignments periodic.
assignments and Yeah that's right, and Johanna's Chan and I think Patrick Lim. No, I can't remember his first name but Mr Lim also taught on notes. And I also remember they have guest lecturers, the former chief justice Andrew Lee as a guest lecturer where he share his experience in wisdom with us. So it's an amazing course.
[00:09:31] Colin Cohen: Yeah So when I did my Cambridge, my masters one of my subjects was human rights with [Paddy] O'Higgins, a great guy. Actually it was not human rights, it was called civil liberties at that time.
[00:09:40] David Leung: Correct correct Correct and when I was at the LLB, it's called civil liberties exactly right
[00:09:45] Colin Cohen: Helped you become a better prosecutor, doing that?
[00:09:47] David Leung: Definitely, you will think, okay apart from the case that you were doing if you look at it from a human rights angle how is it going to impact on the whole landscape of these conduct which are prohibited by the law. How best to ensure a fair trial and what was actually the policy and intention behind the ordinances. Why this conduct was prohibit. How best you can achieve by prosecuting in a fair way.
[00:10:14] Colin Cohen: That's very very interesting cause a lot of our listeners would like to know a little bit more about prosecution's duty of being a the director of public prosecutions, you were deputy director of public prosecutions in 2012. And you then became a director. Perhaps you could just outline very very briefly the fundamental duties of a prosecutor here in Hong Kong. Especially with all the dynamics in our society. Society changes, civil rights, civil disobedience, and all these very difficult tensions. But you as a prosecutor, as being in charge of a department, how do you go about this impossible job? I would say.
[00:10:46] David Leung: I think number one duty as a prosecutor is that you have to ensure everything you do is fair. When I say fair, it's fair In terms of you look dispassionately with the available evidence. So you consider number one, is there a reasonable prospect of conviction of a particular charge or charges in mind. And then the second question of course is whether it's in the public interest to prosecute. Normally unless it's a really petty crime, once you are satisfied with affirmative answer in the first question then the second question is usually quite easy. Fraud cases, money laundering, I mean clearly is in the public interest, unless really in exceptional circumstances. And then when you prosecute, focus to ensure that the process is fair. That the defendant has a fair trial. That's the most important thing. Now of course, as a prosecutor you would hope to get a conviction but whether you can satisfy that high threshold of beyond reasonable doubt ultimately is a matter for the jury or the judge. So result, it's I would say secondary to the process which is the first, fair trial.
[00:11:51] Colin Cohen: Good, and to reinforce that one of the fairest prosecutors I ever dealt with on the other side and I did instruct him was Gary Alderdice.
And then out of his generation and then was John McNamara And then there was Gary Plowman who were all in the DOJ. And one thing about as to their ability, their fairness and how they would always disclose everything, everyone said that's how they succeeded in getting prosecutions because the jury, the judge always said I've always bent over backwards to be so fair.
[00:12:20] David Leung: Yes, and then once you gain the confidence of your opponents and a bench that you are always being fair. They can trust you. And once you gain that trust then it enhances your credibility.
[00:12:32] Colin Cohen: Yes, obviously in the 2014 onwards when you were deputy director and became actually the director of prosecutions in 2017. You had the political arena of the troubles, we'll call it. In general terms, tell our listeners as to when you come to prosecute and it's a case of political dimensions. When you have the Hong Kong standard cases, it's always politics. As a director, tell us a little bit what you can do about the tests and yardsticks. Cause there are lots of prosecution manuals as well, cause I think they'll be interested in
[00:13:03] David Leung: that.
Any case, even those, as you mentioned, social unrest case some people call them. It's no different to end a fraud case, we all apply the same standard, we look at the evidence dispassionately and felt okay can we as a prosecutor after assessing whether there is a reasonable prospect. Now reasonable prospect in terms of the charge that we have in mind or the totality of the evidence. It's possible, or it's likely that is a person. But if it doesn't reach the standard of a reasonable prospect then we can't prosecute. Some people were saying well, do prosecutors charge first and see what offers that they're coming in. No we don't do that. If there is insufficient evidence, we came to that conclusion and sometimes we'll tell the law enforcement agency at this stage, the evidence was insufficient. Now if you have fresh evidence come back to us and we'll reconsider.
[00:13:55] Colin Cohen: Yeah, from my experience is this. On many occasions, you have the 50% test. Is it more likely than not there's gonna be a likely conviction. But I've been able to correspond with the Department of Justice saying look, here's the case, here's all the other circumstances the young person and try to persuade them to get the Bind Over. Sometimes you were successful, sometimes you were not. Then I've noticed recently at that time it's become a lot more difficult to get the Bind Overs, that means you don't have a conviction but you have to keep the peace for 12 months, and then you will not have a criminal record. And sometimes that was very important in theft cases, in cases where the person's a good person he did something stupid. Let's say an altercation with a taxi driver lots of alcohol flying around. Well they're the normal cases and I find it a little bit more difficult nowadays with all the tensions.
[00:14:43] David Leung: Right, I think, Bind Over it's always a difficult question because usually it's those cases where perhaps due to the age, consumption of alcohol, or momentary argument of rage, that people perhaps regretted what they did. Sometimes it's a fight, sometimes it's a push, sometimes it's wearing anything, or sometimes it's pure greediness. You pick something from a supermarket, from a department store where you know particularly young persons, if you've got a conviction then it will have devastating effect on them. When I was in the DOJ as a prosecutor, we always consider those principles. And I think one particular thing is whether result of a conviction, the consequences, whether it would outweigh the gravity of the offending. Use one example, 18 year old kid, he always been good result, good boy or girl, and then somehow he just took say a hundred dollars t-shirt from some shop. Okay regretted it, so in those circumstances probably the prosecution will actively consider if representations are made. But for other cases, I won't say there is a particular percentage or a quota. Each case depends on its own facts.
[00:15:55] Colin Cohen: You
became director of public prosecutions in 2017. Great honour. Have you feel you achieved your career goal?
[00:16:02] David Leung: By and large, yes. I think as DPP, one of the most important job that I was hoping to achieve was basically to ensure that number one, the cases to prosecute decisions are fair. And also provide an environment where colleagues can develop professionally and rise and gain their experience. And I hope I have achieved that.
[00:16:25] Colin Cohen: Yeah obviously you prosecuted several high-profile cases but when you became the DPP, how much of your time was taken up with the administration of a department? And putting out, I call it fires. We all put out fires in private practice, small fires, big fires that happens all the day. And how much of your time were you able to go to court?
[00:16:45] David Leung: As there a lot of administrative, management and that was about I think around 70% to 75% overseeing cases, giving directions, giving steers. Sometimes, as you say, it's urgent. People came to you after court they need guidance, they need steer. But I try to maintain court work for two reasons, number one because I love going to court. And number two is I think it's important as DPP to lead by example. You can't really say because I'm so busy I'm not doing it. I don't think that's right.
[00:17:16] Colin Cohen: Well correct, your predecessors Kevin Zervos, Keith Young, Ian McWaters, Greenville Cross. All of them, I call it, going into the coal face and digging the coal and ensuring that leading by example.
[00:17:30] David Leung: Yeah.
[00:17:30] Colin Cohen: Prominent cases that ring in your minds of high profile cases which you are proud of. By proud of, I mean you'll allow the legal system the law to develop. You know it became a high watermark case. Anyone's in particular?
[00:17:42] David Leung: I don't have a particular case in mind. Usually what I do, it's if I find perhaps SDPP, I find that there is an important point of law issue that needs to be addressed. Then I'll try if possible to do that case myself with the assistance of colleagues. I don't think it's fair to think about any particular case, yeah.
[00:18:02] Colin Cohen: You paid them a Court a Final Appeal. An area which I would like to get your views on. You were involved in these, the admission of overseas council. And to help our listeners those are having eminent QCs who are admitted in Hong Kong to appear in matters. And that particularly in the criminal area, you did a few cases whereby the secretary of justice had to play a more vocal position in the past. You just followed what the Bar did whereby the court said no no no I want actual submissions from the secretary of justice as to what is the real public interest. Because you did two cases Reed Perry, Jonathan Kaplan.
[00:18:37] David Leung: Yeah
[00:18:37] Colin Cohen: Your view on that?
[00:18:39] David Leung: I think because Hong Kong is still doing the common law system. And it has all long been a tradition that in appropriate cases that we have those eminent Queens Council usually from the United Kingdom to come and assist us. As you mentioned, I think for Jonathan Kaplan it was a case in terms of money laundering where he has been involved substantially. And I did that Ad Hoc admission myself before the chief judge. And it's always a balancing exercise, in terms of I can understand of course the local bar they would feel one way or the other. Why do you need an overseas silk. But on the other hand from the secretaries for justice possession. In a particular case, if the issue the court would be assisted by the eminent QC from the United Kingdom with the particular relevant experience doing that particular case. Now one, it would help in terms of jurisprudence in development. And two, whoever works with the QC they will actually learn and benefit. So I think it's important to find the right case and then make the application. And ultimately I can see usually the court if they feel that the jurisprudence and the public interest of Hong Kong as a whole would benefit they would allow that.
[00:19:56] Colin Cohen: Yes because, in a recent case which I've been doing, we had QCs admitted. The long-running case, commercial fraud which you are familiar with. And they were admitted and I think they added greatly to the advancement of the legal profession here in Hong Kong because now at the Bar you would have a local Silk appearing as well as juniors helping them out. And everyone gains the benefit about it. You took silk, you became a senior council in respect to matters. You took silk or senior council when you were in the department along with some other people at the same time.
[00:20:27] David Leung: Yeah I think the difference is that when you became a silk, you will have to work harder because your opponent, the court, and everyone in a case expects more from you and you need to expect more from yourself. You cannot just give the usual, you try to work harder and take the extra mile.
[00:20:48] Colin Cohen: Great, now in 2020 you decided to move on and you are now in practice at the eminent chambers of Liberty chambers founded by the late Sandy King and the currently Graham Harris. Very very well known set of chambers doing criminal work, doing all type of work. Tell us a little bit What made you get down that road?
[00:21:08] David Leung: I think after I decided to leave the government and then having taken a bit of rest. I'm obviously too young to retire and I still hope to contribute to the legal community. In a different role, so the most natural one would be to start private practice.
[00:21:25] Colin Cohen: And the type of work you're hoping to do?
[00:21:27] David Leung: I mainly am now starting doing criminal work and also a bit of the civil work that I used to do. Mainly criminal, and a little bit of civil, personal injuries, and matrimonial.
[00:21:39] Colin Cohen: So you're now, it's a nice little expression, gamekeeper turn poacher. What would you say to that?
[00:21:45] David Leung: I think it is actually doing the same thing from different sides. Mean as I previous said as a prosecutor you ensure the process is fair, number one. You see whether you can achieve the result, but you're not judged by the result and you see the overall picture. But now as if acting for a defendant in a case, then of course you look to the best interest of that person in terms of cause, in terms of result, but the rules behind are just the same.
[00:22:11] Colin Cohen: I suspect you'll be very busy and I suspect your phone is ringing all the time from various solicitors who wish to deliver great nice briefs to you So it's gonna be interesting times for you, do you feel a little bit worried, do you feel a little bit stressed by that. Something's all new going to the Bar, for all those years in government and now you are on a different mode.
[00:22:29] David Leung: I took a bit of time just in terms of there is no set office hours. You are your own boss, and unlike in the government where, you are not short of work. The government is always overworked everyone. Now it's sometimes you need to wait, sometimes you're very busy, sometimes okay you have a breathing space and then need time to plan your own time. I sometimes have more free time to spend with my family and the kids.
[00:22:52] Colin Cohen: That's great, I always ask this to my guess cause I think it's important and we gotta be real. There's always this big elephant in the room. Hong Kong is going through difficult times as a new boss, a new chief executive, it's the pandemic, and the big elephant in the room is national security law et cetera. Your thoughts on the city's future, optimistic, concerned?
[00:23:13] David Leung: I think everyone has to contribute from their respective roles. In my former role as a prosecutor, ensure that's fair. Now defence, I think everyone do their part.
[00:23:24] Colin Cohen: Okay, I always say we as lawyers, I think we're rather like grand taxis. We go around and we're we're hailed down and we're there to defend everybody no matter how bad, no matter how terrible, it's our job to ensure that the system works by either prosecuting or defending and without lawyers who are independent and the rule of law. That is fundamental, that's my view, what do you say to that?
[00:23:47] David Leung: Lawyers, they can be Barristers or Solicitors, on if you are acting for a particular party, do your best. Do your best for that party the rules, and then I think that we can go forward.
[00:23:58] Colin Cohen: Yes, I always say where I remember at Cambridge I went to a lecture. It wasn't in my area but I went to great Clive Perry who lectured on even Eichmann, the most outrageous war criminal deserved a fair trial, deserved the best possible lawyer to defend him.
[00:24:12] David Leung: Indeed, indeed. I always say when I was in the department, if you want a case as a prosecutor but somehow on appeal that some flaw in the process. Somehow the court file that the trial was not fair. Then you lose the appeal, lose the course, and there is a retrial. It's not fair on the defendant, it's not fair on the victim, it's not fair on the system, it's not fair on Hong Kong. Everybody loses. If somehow the process is less than fair. So ensure a fair trial for everyone irrespective of the identity of the defendant, irrespective of the type of crimes, however gruesome, horrible. I think that we can maintain the rule of law.
[00:24:52] Colin Cohen: And I think the rule of law is fundamental. David I think it's a privilege 'A' having you on Law & More and 'B' is a privilege for Hong Kong to have you back in practice. And I'm hoping that I can deliver a wonderful brief to you, somewhere down the road where we can work together. David thank you so much for joining us on Law & More.