TNAG-0728-FCO40-931-Appointment-of-Commissioner-Against-Corruption-in-Hong-Kong-1978 — Page 41

CONFIDENTIAL

2 THE ACTING ATTORNEY GENERAL ADVISES THAT THERE IS NO LEGAL OR

CONSTITUTIONAL IMPEDIMENT TO YANG ACTING AS COMMISSIONER AGAINST CORRUPTION AND THEN RETURNING TO THE BENCH. HIS PERSONAL BELIEF IS ALSO THAT THE APPOINTMENT WOULD BE WELL RECEIVED BY BOTH THE PUBLIC AND THE PUBLIC SERVICES. HOWEVER HE WARNS THAT THERE WOULD BE STRONG ADVERSE REACTIONS IN THE BENCH AND EXPATRIATE

ELEMENTS (THE VOCAL MINORITY) OF THE LEGAL PROFESSION, AND THAT

THIS SHOULD BE TAKEN INTO ACCOUNT.

3. SOMEWHAT SHAKEN I DISCUSSED WITH SIR Y.K. KAN (WHO IS A LAWYER).

HE AGREED THAT THERE WOULD BE SOME CRITICISM, PARTICULARLY IN THE PROFESSION AND THE JUDICIARY, BUT THAT BOTH APPOINTMENTS

WOULD BE WELCOMED BY THE PUBLIC AND EVEN BY SOME MEMBERS OF THE PROFESSION BECAUSE OF THE REPUTATION OF THE MEN CONCERNED AND BECAUSE, IN RESPECT OF ROBERTS, THE PUBLIC FELT THE JUDICIARY TO BE TOO OUT OF TOUCH WITH COMMUNITY AFFAIRS, AND IN RESPECT OF YANG, THAT HIS REPUTATION FOR IMPARTIALITY AND MORAL FIBRE WOULD BE A WELCOME SOURCE OF STRENGTH TO THE COMMISSION.

4. THERE WAS A LACK OF LOGIC ABOUT THE OBJECTIONS OF THE CHIEF JUSTICE. THE COMMISSIONER'S TASK WAS NOT THAT OF PROSECUTOR

BUT OF MORAL LEADER: HE WAS MUCH MORE CONCERNED WITH EDUCATIVE AND PREVENTIVE WORK THAN WITH PUNITIVE. IN ANY CASE THE COMMISSIONER AGAINST CORRUPTION DID NOT PROSECUTE, BUT MERELY

IT WAS PREPARED CASES FOR THE ATTORNEY-GENERAL'S CONSIDERATION. NORMAL IN HONG KONG FOR A Q.C TO ACT AS A COURT COMMISSIONER AND JUDGE CASES EVEN THOUGH HE HAD BEEN DEFENDING SIMILAR CASES A FEW WEEKS BEFORE, OR FOR CROWN COUNSEL FROM THE LEGAL DEPARTMENT TO BE APPOINTED TO THE BENCH AFTER YEARS OF PRESENTING THE CASE FOR THE CROWN. HE THOUGHT THE CHIEF JUSTICE'S OBJECTIONS STEMMED

FROM OVER-INTERPRETATION OF THE INDEPENDENCE OF THE JUDICIARY. HE AGREED THERE WOULD BE A ROW WITH SOME OF THE LEGAL PROFESSION BUT THAT AS A PACKAGE THE THREE APPOINTMENTS OF ROBERTS, CATER AND YANG WOULD BE VERY POPULAR.

5. I FINALLY CONSULTED OSWALD CHEUNG, A Q.C ON EXECUTIVE COUNCIL.

HE SAID THAT WHILE THERE COULD BE NO VALID OBJECTION TO THE

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/APPOINTMENT