Breaking down the case against former Hong Kong chief executive Donald Tsang
Misconduct charge laid against former leader will take reference from a 2002 judgment
Former chief executive Donald Tsang Yam-kuen has been charged with misconduct in public office. In my last column, I set out some general issues regarding this offence. We will now look in more detail at the elements of the offence.
It has been emphasised in the higher courts that, where possible, a specific statutory charge should be laid in preference to misconduct. No such specific charge was available in Tsang's case. For this reason, because a serious failure to carry out his duty to disclose certain matters is alleged, the charge of misconduct in public office has been laid.
With regard to this offence, a Hong Kong case in 2002, Shum Kwok-sher vs HKSAR, seems to be the leading modern case in the common law world, having been followed by higher courts in other jurisdictions.
Mr Justice Anthony Mason, sitting in the Court of Final Appeal, gave the leading judgment. He set out four elements of the offence, each of which then gave rise to other issues within the parameters of that element. The elements are:
1. A public official. This element, though obvious, is not always simple to decide on. However, there are clear guidelines today as to what this amounts to.
2. In the course of or in relation to his public office. This element always depends on the specific office in question and the specific allegation of wrongdoing. John Prescott did not abuse or bring into disrepute his office of the British deputy prime minister when he had an affair with his secretary (though some people may disagree), but Bishop Peter Ball abused his position in order to obtain sexual favours.
3. Wilfully and intentionally. Everyone, even highly placed and well-paid officials, can make mistakes and/or be incompetent. This offence is not concerned with such faults, nor with the simple matter of an official behaving in a way that others disagree with.