Ex-Hong Kong leader Donald Tsang in hospital after losing misconduct appeal
Former chief executive to serve 10-month jail term after Court of Appeal cites ‘compelling’ evidence that he concealed conflict of interest
Disgraced former Hong Kong leader Donald Tsang Yam-kuen walked into court on Friday and left in a stretcher for hospital, after an appeal against his conviction for misconduct in public office was rejected.
Three Court of Appeal judges unanimously ruled that the evidence was “as formidable as it was compelling” that Tsang, 73, had concealed a conflict of interest from the people of Hong Kong when he was the city’s chief executive between 2005 and 2012.
But Tsang, who had been out on bail after being found guilty of misconduct last year, managed to have his 20-month jail sentence reduced to 12 months.
The appeal court also scaled back a lower court’s order for the retired leader to pay at least HK$3 million (US$380,000) in legal fees to cover prosecution costs. He will now have to fork out only HK$1 million.
The court took into consideration the crippling effect that paying the full amount would have on Tsang as he was “not a wealthy businessman but a retired civil servant”, who would depend solely on his savings and pension in his remaining years.
Tsang, who had walked into the court building wearing a slight smile, looked solemn as the verdict was announced. He bit his lip and exchanged a last glance with his family members before being taken away by correctional services officers.
About two hours later, Tsang, who is known to have respiratory problems, was taken by ambulance to Queen Mary Hospital in Pok Fu Lam, after complaining of feeling unwell.
“Today, I feel disappointed, and my heart aches,” his wife, Selina Tsang Pou Siu-mei, said outside court.
Flanked by the couple’s sons, Simon Tsang Hing-yin and Thomas Tsang Hing-shun, she said they were working with their lawyers on their next course of action.
Selwyn Yu SC, Tsang’s lawyer, immediately informed Justice Andrew Macrae that his client planned to take the case to the Court of Final Appeal and would apply for bail again. But he later said the defence was still considering the final appeal.
Tsang served two months of his original 20-month term before he was granted bail in April last year. With the reduced sentence, he is expected to serve another 10 months.
In a 95-page judgment, the three appeal justices ruled on Friday that Tsang was aware of, and should have declared, the conflict of interest that landed him in jail – even if there was no corruption involved.
“A high-ranking government official who deliberately conceals a conflict of interest must know, with respect, what he is doing, and that what he is doing is wrong,” Macrae wrote on behalf of fellow justices Derek Pang Wai-cheong and Wally Yeung Chun-kuen.
The conflict of interest centred on a three-storey luxury penthouse in the fashionable district of Futian in Shenzhen, mainland China, that Tsang wanted to make his temporary retirement home.
The court heard that, between 2010 and 2012, Tsang began negotiations on renting the penthouse, which belonged to a company chaired by mainland businessman Bill Wong Cho-bau. At the time, Tsang was also in charge of approving licence applications from radio station Wave Media, of which Wong was a majority shareholder.
Tsang was found guilty of misconduct by an 8-1 jury verdict in February last year, although he was acquitted on a second count of misconduct. The jury could not reach a verdict on a third charge of accepting an advantage as the chief executive.
During the appeal, British barrister Clare Montgomery QC argued that Tsang had no duty to declare the penthouse arrangement, as he had no interest in the radio station. Had the public known the true circumstances, she said, they would have known there was nothing untoward about it, and therefore no declaration was required.
Justice Macrae disagreed, saying it was not a matter of whether the deal was corrupt, but of whether Tsang had made his conflict of interest known to the public.
Describing the defence’s argument as putting “the cart before the horse”, he said: “It cuts against the whole ethos of the government administration and civil service, which inculcates in its officers the need to avoid conflicts of interest where the officer’s private interests compete or conflict, or potentially might do so, with the interest of the government or the officer’s official duties.”
Tsang, having served in the government for decades, would have appreciated how failure to declare would have tainted the government’s decision and an official’s integrity, the judge said.
“These are frankly obvious consequences which [Tsang], of all people at the very top of the government administration, after decades in public service, would have readily and instinctively understood,” Justice Macrae said.
The evidence was “as formidable as it was compelling” that Tsang could not have simply overlooked his duty to declare the deal with Wong, the judge said. Instead, Tsang had “deliberately decided not to make such disclosure, knowing that he had a conflict of interest”.
“To this day, there has never been a proper explanation as to why [Tsang] did what he did, and the question marks over his actions and integrity will inevitably and regrettably remain as a judgment of his time as chief executive,” the judge said.
As for Tsang’s sentence, the justices decided that while the offence was serious, the trial judge had nevertheless handed down an excessive term.
University of Hong Kong principal law lecturer Eric Cheung Tat-ming said the chances of Tsang getting the green light to take his case further might be slim, as it did not appear to involve significant legal issues that had been left unsettled.
Tsang’s younger sister, Katherine Tsang King-suen, and brother Tsang Yam-pui, a former police chief, also attended the hearing on Friday. Other supporters included some of Tsang’s strongest political opponents, such as former democratic lawmakers Albert Ho Chun-yan and Lee Wing-tat, who gave him a hug before Tsang headed into court.
“As friends, we came here to give him our support,” Ho said.