Former Hong Kong leader Donald Tsang argues in final appeal that he landed a misconduct conviction through his misjudgment not wrongdoing
- His lawyer argues trial judge failed to tell jurors that to convict Tsang they had to be certain he knew non-disclosure of property deal was unlawful
The 74-year-old former chief executive, sporting his signature bow tie, walked hand in hand with his wife Selina Tsang Pou Siu-mei into the Court of Final Appeal, in his first public appearance since his release after completing a 12-month jail term in January.
The city’s leader from 2005 to 2012 was found guilty of misconduct in public office in 2017 over an undeclared deal with businessman Bill Wong Cho-bau concerning a luxury penthouse in Shenzhen, which prosecutors said placed him in a conflict of interest.
But on Tuesday, Tsang’s barrister Clare Montgomery QC argued that her client’s conviction might have arisen from the trial judge’s failure to properly direct the jury. She said Mr Justice Andrew Chan Hing-wai had failed to tell jurors that to convict Tsang they had to be certain he knew non-disclosure was unlawful.
“That is the only bit of the offence that reflects moral wrongdoing,” she said.
The case arose from talks Tsang had with Wong between 2010 and 2012 to rent the property in the fashionable Futian district.
Wong owned the three-storey penthouse through East Pacific Group, his property company across the border. He was also the major shareholder of radio station Wave Media, which was applying for a digital broadcasting licence that required Tsang’s approval.
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Tsang did not make the property negotiations known to the Executive Council, his cabinet, which was discussing the radio station’s request.
In press interviews prosecutors produced during the trial, Tsang said he had pondered the issue. But he did not declare it as he believed it was “fanciful and far-fetched” that the deal – which he asserted was at arm’s length – amounted to a conflict of interest.
Referring to Chan’s omission to the jury, Montgomery said: “It illustrates the danger when you allow misconduct to encroach on mistakes or misjudgment into an area … where it’s not suitable for criminal law to apply.”
She urged the top court to quash Tsang’s conviction – instead of ordering a retrial – saying it would be unprecedented for someone to face a jury again after serving a full sentence.
But David Perry QC, for the Department of Justice, countered that Chan had directed the jury correctly.
He argued Tsang had failed to come clean on certain contentious issues during the trial, including what prosecutors said appeared to be a set of flawed lease agreements and an unexplained sum of HK$350,000 (US$44,871) allegedly deposited into Selina Tsang’s bank account by David Li Kwok-po, chairman of the Bank of East Asia, who was also a shareholder of the radio station.
“In the absence of an explanation, that is a conflict of interest,” Perry said.
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However, the top judges challenged that suggestion.
“It is as though saying, he is up to something, we don’t know what it was, but he should have disclosed it,” said Mr Justice Murray Gleeson, one of five justices hearing the final appeal.
Chief Justice Geoffrey Ma Tao-li said they would hand down their judgment at a later, unspecified date.
