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Donald Tsang

Former Hong Kong chief executive Donald Tsang given go ahead to lodge final appeal

  • The 74-year-old was found guilty of misconduct in public office last year
PUBLISHED : Thursday, 20 December, 2018, 11:05am
UPDATED : Thursday, 20 December, 2018, 11:08pm

Jailed former Hong Kong leader Donald Tsang Yam-kuen on Thursday got the green light from the city’s top court to lodge a final legal bid to clear his name.

His appeal will be heard on May 14 next year, Chief Justice Geoffrey Ma Tao-li announced, after ruling alongside two Court of Final Appeal judges that the former top official had an arguable case.

The 74-year-old, the city’s chief executive from 2005 to 2012, was found guilty of misconduct in public office last year, over an undeclared deal with a businessman concerning a three-storey penthouse in Shenzhen, mainland China.

The ultimate appeal will centre on whether the trial judge properly directed the jurors before they convicted Tsang.

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British barrister Clare Montgomery QC contended that, for Tsang to be found guilty, he was not only required to have deliberately concealed the deal, but he also needed to have done so while acknowledging that what he did was unlawful.

It was Tsang’s argument during the trial that he deliberately chose not to declare the deal because he thought it was unnecessary.

Montgomery said the jury should have been told to consider that scenario at the trial in February last year. She also took issue with trial judge Mr Justice Andrew Chan Hing-wai’s failure to spell out to the jury how serious misconduct would have amounted to a criminal sanction.

“They are indispensable in a jury trial,” she said on Thursday.

Chief Justice Ma, along with Roberto Ribeiro and Joseph Fok, saw room for Tsang’s lawyers to argue on those grounds, thereby granting him permission for the final appeal.

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Among those who came to support Tsang on Thursday morning were his wife, Selina Tsang Pou Siu-mei, and younger son, Thomas Tsang Hing-shun. His brother Tsang Yam-pui, a former police commissioner, and sister Katherine Tsang King-suen were also among the cohort.

During a court break, Tsang attempted to touch his family members through the divider of the dock. In a joking tone, he complained to his wife, who looked eager to see her husband, he had lost weight, by slipping a finger into his collar to indicate its looseness.

“I am fine. Don’t worry. It doesn’t matter, whatever happens,” Donald Tsang said.

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Between 2010 and 2012, Tsang began negotiations with Bill Wong Cho-bau to rent the luxury penthouse, in the fashionable district of Futian. Wong owned the property through East Pacific Group, his property company across the border.

The failure to declare his link to Wong amounted to misconduct in public office, prosecutors argued, and Tsang was found guilty of the offence by an 8-1 verdict in February last year, and jailed for 20 months.

He served two months before he was granted bail, pending appeal.

But Tsang’s first appeal against his conviction, at the lower court in July, was unsuccessful. Sending him back to prison, three Court of Appeal judges described the case against the career civil servant as being “as formidable as it was compelling”.

Tsang, however, had his sentence reduced to 12 months. He subsequently filed the present, final appeal.

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On Thursday, British barrister David Perry QC, prosecuting, defended the judges of the lower courts, saying they had made the right decisions, which led to Tsang’s conviction and his loss in the first appeal.

The former chief executive was in the dock twice in 2017, because the first jury – which found him guilty on the misconduct charge in February – failed to return a verdict on one of two counts of accepting an advantage as the chief executive. It acquitted him on the other.

The remaining charge, which accused Tsang of pocketing HK$3.8 million worth of bespoke refurbishment for the Shenzhen flat from Wong’s firm, was dropped after the jury in a second trial in November that year also returned without a valid verdict.

The former city chief’s court battles have coincided with worries for his health over the past two years. Tsang, who suffers from asthma, had been admitted to hospital on numerous occasions during his incarceration.