Director of Public Prosecutions Grenville Cross will not prosecute former High Court Judge Michael Wong for alleged impropriety in connection with his applications to the Government for reimbursement of Leave Passage Allowance.

The decision was based on advice from a Deputy Director of Public Prosecutions and a Queen's Counsel in London, as well as an independent review conducted by Mr Cross. The decision was endorsed by Secretary for Justice Wong Yan-lung who said it was made after careful consideration of the evidence and is in line with established prosecution policy.

Mr Cross said he was mindful that prosecution policy had to be applied without fear or favour.

"A prosecution should only be instituted against a person if there is sufficient evidence. No one should be prosecuted unless there is at least a reasonable prospect of securing a conviction. A mere suspicion of guilt does not satisfy the basic prosecutorial criteria, nor does a bare prima facie case," he said.

"Just as no-one is to be treated as being above the reach of the law, so, also, and just as importantly, no one is to be treated as being beneath the protection of the law."

Insufficient evidence

After the Independent Commission Against Corruption submitted a final report on its investigation into the case last November, Mr Cross instructed Deputy Director of Public Prosecutions Harry Macleod, who is the head of the unit specialising in commercial crime and ICAC cases, to advise on the case.

Mr Macleod said the evidence did not suffice to justify criminal proceedings against Michael Wong because it could not be proved that Mr Wong intended to deceive when he submitted the reimbursement claims.

In view of the sensitivity of the case, the nature of the evidence and the level of public concern, Mr Cross instructed Queen's Counsel Martin Wilson to consider the allegations and evidence, and provide an assessment.

Mr Wilson's advice was that the evidence did not rise above the level of suspicion and did not provide a reasonable prospect of conviction.

Mr Wilson advised Mr Cross that in seeking reimbursement from the Treasury, Mr Wong was making claims in respect of flights which he had taken and for which, in principle, he was entitled to seek appropriate reimbursement. To prosecute him successfully, it would be necessary to prove:

* Mr Wong did not, as claimed, make the reimbursement to his daughter;

* that when Mr Wong made the claims under the Leave Passage Allowance he knew he had neither repaid her, in cash or kind, nor intended to do so; and,

* that Mr Wong acted dishonestly.

Mr Wilson said all these points would have to be established to the criminal standard of proof and there is no direct evidence to support them.

"A court could be invited to draw an inference of guilt, but the answer would be that strong suspicion justifies investigation but not conviction. A court would not be likely to conclude that, on the evidence available, it could properly draw the inference of guilt," Mr Wilson said.

Rare case

Mr Cross said normally the Department of Justice would not indicate in any detail the basis of particular prosecutorial decisions.

"This practice reflects the traditions of the common law world which recognise that once a decision has been taken not to prosecute a person, the position of the suspect must be safeguarded.