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Donald Tsang

Getting Donald Tsang back in the dock for second retrial will be hard for Hong Kong prosecutors, legal experts say

After evidence failed twice to convince enough jurors, government lawyers will need to show a very good reason to keep bribery case alive

PUBLISHED : Saturday, 04 November, 2017, 9:31pm
UPDATED : Saturday, 04 November, 2017, 11:18pm

Prosecutors will need to weigh up this weekend whether they can convince a court to order a rare second retrial for a former Hong Kong leader, according to legal experts, after jurors failed to reach a verdict for a second time on a corruption charge.

Eight jurors were unable to come to a majority decision over whether Donald Tsang Yam-kuen was guilty of accepting an advantage as the city’s chief executive, between 2010 and 2012.

They were dismissed on Friday, leaving the possibility of prosecutors seeking a third trial.

But doing so will be a big task for the government lawyers, observers said.

“It is in exceptional cases that a second retrial would be ordered when there was a hung jury in the previous two trials,” Eric Cheung Tat-ming, principal law lecturer at the University of Hong Kong, said.

Cheung said two key conditions would need to be met before another retrial. The offence would have to be of “extreme gravity”, and the evidence against the defendant “very powerful”.

The curious case of Mr Q, the juror excused the day before deliberations in the Donald Tsang bribery trial

If those conditions are not met, Cheung said, then there would have to be a very strong reason to go ahead with a third trial, given that the evidence twice failed to convince the whole jury.

University of Hong Kong associate law dean Simon Young Ngai-man said the option to seek a second retrial “should be exercised with extreme caution”, saying only a “small number” of cases meet those criteria.

“In my view, neither condition is apparent in Mr Tsang’s case,” Young said.

Barrister Albert Luk Wai-hung said the decision would hinge on whether another trial is in the public interest, whether it would be fair, and the defendant’s health, among other things. Luk said the prosecution would also need to review its evidence, which has proved insufficient in the previous two trials.

In private, lawyers and legal experts doubted that prosecutors would be able to take the case back to court.

A timeline of Donald Tsang’s legal journey

Prosecutors said through a government spokesman on Saturday they had not decided whether to try for a third trial.

Tsang was the city’s second leader after Britain handed Hong Kong back to China in 1997. He led the government from 2005 to 2012.

He was accused of accepting free, bespoke refurbishment worth HK$3.8 million (US$487,000) for a three-storey penthouse in Shenzhen, where he planned to retire.

In return, prosecutors said, he became “favourably disposed” to a local radio station, Wave Media, the majority shareholder of which was Bill Wong Cho-bau, who owned the penthouse and paid for the renovation.

Due to Tsang’s failure to declare the property or the arrangement while in office, he was found guilty in February of one count of misconduct in public office and sentenced to 20 months in jail.

At the same trial, jurors could not agree over a separate charge of accepting an advantage as chief executive. That led to the second trial, which ended on Friday, in which the jury was similarly hung.

Tsang has been granted bail since April, pending his appeal against February’s guilty verdict.

Prosecutors and Tsang’s lawyers will return to court on Monday, but details of the hearing cannot be reported for legal reasons.