Opposition to Donald Tsang retrial ‘a tough ask’, say Hong Kong law experts
Legal experts say ex-leader would have to show that a fair trial was impossible on the bribery charge on which jurors could not reach a verdict
Donald Tsang Yam-kuen, the former Hong Kong leader who has been convicted of misconduct in public office, may have a tough case to argue against a retrial on a bribery charge if prosecutors continue to press that option, legal experts say.
His fate hangs in the air as the High Court is expected to this week hand down a sentence for his conviction on a misconduct charge , which carries a maximum sentence of seven years in prison. He may also lose his pension and a top honour, the Grand Bauhinia.
A nine-member jury on Friday night found Tsang, 72, guilty of concealing from his cabinet his negotiation over a Shenzhen penthouse belonging to a company chaired by businessman Bill Wong Cho-bau between 2010 and 2012, during which time he approved a digital audio broadcasting licence for a radio station of which Wong was a shareholder.
Tsang was cleared of a second misconduct charge and the jury was unable to reach a majority verdict on the bribery charge. The Post has learned the Justice Department may push for a retrial on the bribery charge.
Under that charge, the former chief executive was accused of accepting free redecoration of the penthouse, which cost HK$3.35 million and was paid by Wong’s company.
The Justice Department said a decision about seeking a retrial was yet to be made.
Simon Young Ngai-man, criminal law professor at the University of Hong Kong, said it would remain the prosecution’s prerogative to bring the bribery charge to trial again.“Only if the retrial would amount to an abuse of process can the court step in to halt the prosecution,” he said. “It would need to be shown that a fair trial was impossible.
“I doubt if either condition can be demonstrated in this case,” he said.
Generally, there was a high threshold to meet if a defendant wanted to argue that a fair trial was not possible for a retrial, said Eric Cheung Tat-ming, director of clinical legal education at the University of Hong Kong.
The court could refuse to grant a retrial on the grounds that some evidence had been destroyed or key witnesses had passed away, he said.
Cheung also said the courts had previously rejected an argument put forward by many defendants that biased media reports could influence the jury and thereby render a fair trial impossible, because the courts also valued press freedom.
A spokesman for Tsang declined to comment on whether he would seek to oppose a retrial should prosecutors ask for one.
Stephen Hung Wan-shun, past president of the Law Society and a criminal lawyer, said the Justice Department would have to wait for the judge to pass a sentence on the misconduct charge before seeking a retrial.
If the sentence was heavy, Hung said the defence could argue that a retrial on the other alleged offence, even if it eventually led to a second conviction, “could not lead to a more severe punishment” and therefore should be set aside, considering that the sentences would be served concurrently.
The maximum penalty for the bribery charge against Tsang is seven years in prison, the same as for the misconduct charge.
A government spokesman said someone given an award could be stripped of his medal if he was sentenced to one year in prison. The chief executive would make the final decision, he said.
As for other privileges enjoyed by former chief executives, such as use of an office, car and chauffeur and the provision of security and medical care, they would not be arranged “if he does not carry out promotion and ceremonial duties” for Hong Kong, the spokesman added.
Meanwhile, Democratic Party lawmaker Lam Cheuk-ting has written to the Independent Commission Against Corruption to urge it to investigate Bank of East Asia chairman David Li Kwok-po, who was also a shareholder of Wong’s radio station.
During Tsang’s trial, the prosecutor cited the “terrible coincidence” that Li had withdrawn HK$350,000 from his bank account in 2010 and Tsang’s wife deposited the same amount of cash into the couple’s joint account at the same bank branch just 35 minutes later.
But the ICAC told the court it did not interview Li because it did not expect him to cooperate.
Li told Ming Pao earlier that it was “unfair” to accuse him of non-cooperation and that he would “truthfully” answer if he was approached.
Additional reporting by Eddie Lee