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Donald Tsang (centre) heard the news of his appeal win while on holiday in Europe with his family. Photo: Handout

Former Hong Kong chief executive Donald Tsang has charges of criminal misconduct quashed by Court of Final Appeal

  • Tsang had been sentenced to 18 months in jail, later reduced to a year, for failing to disclose conflict of interest involving mainland Chinese businessman
  • The former city leader was released in January, having been plagued by ill-health throughout his sentence
Former Hong Kong leader Donald Tsang Yam-kuen has been cleared of criminal misconduct by the city’s top court, bringing a long legal battle punctuated by health problems to an end.

The Court of Final Appeal on Wednesday ruled unanimously in favour of the former chief executive, who was the highest-ranking official to be jailed in the city, after finding the trial judge had failed to direct his jurors properly.

The verdict was delivered without Tsang, who had appeared at previous court hearings alongside his wife Selina Tsang Pou Siu-mei. The couple were travelling in Europe with other family members.

“My family and I are jubilant and deeply moved. We have suffered more than seven years because of this litigation,” Tsang said.

Donald Tsang being released from his 12-month sentence at Queen Mary Hospital in Pok Fu Lam, accompanied by his wife Selina on January 15. Photo: Winson Wong

The devout Catholic spoke of the struggle and torment he and his family had faced, having spent almost all their savings on the lawsuit. He thanked his family, friends, former colleagues and fellow church members for their support.

“My heart is full of gratitude, thankful to the wisdom of the Court of Final Appeal, for the strong support of my church, family, friends, former colleagues,and my legal team,” he said.

“I’m particularly grateful to those members of the public who have never ceased to encourage and trust in me. Their encouragement and trust have help me through a dreadful period of my life. I’m simply feeling very grateful.”

The top court decided to quash his conviction and sentence once and for all, and not order a retrial.

“Because of the high office held by the appellant there was a public interest in a definitive resolution of the charges against him,” the 33-page judgment, signed off by “the court”, read.

The presiding judges were Chief Justice Geoffrey Ma Tao-li and Mr Justices Roberto Ribero, Joseph Fok, Andrew Cheung Kui-nung and Murray Gleeson.

The judgment said Tsang had already suffered a “just punishment” by being jailed for 12 months. “That weighs heavily in favour of a conclusion that the interests of justice do not require a new trial,” it said.

Democratic Party lawmaker Lam Cheuk-ting said the top court had only cleared Tsang on technical grounds and the judgment reaffirmed the need for public officers to declare any potential conflict of interest.

The case centred on Tsang’s plan to rent a three-storey penthouse – from mainland China-based businessman Bill Wong Cho-bau – in Shenzhen, the southern Chinese city that borders Hong Kong.

His failure to disclose the deal left him “hopelessly compromised” according to the prosecutors and Tsang was convicted of misconduct in public office.

But the five justices said on Wednesday the trial judge had failed to ensure the jurors had found the disclosure serious enough to warrant a criminal conviction.

Nor were they told how to determine whether Tsang had “wilfully” carried out the crime.

A timeline of former Hong Kong leader Donald Tsang’s legal journey

The legal battle began in 2015, when Tsang, who was chief executive from 2005 to 2012, was charged by the Independent Commission Against Corruption. It came three years after a widespread scandal plunged the previously popular Tsang into a reputation crisis, with media reporting he went on lavish yacht and private jet trips with some of the Hong Kong’s wealthiest residents.

Tsang has since faced two trials, two appeals, and a hefty legal bill of up to HK$1 million, which was just the cost of prosecuting him.

He was admitted to hospital on multiple occasions, while he was in and out of the maximum security prison in Stanley after being granted bail pending numerous appeals.

Tsang decided not to apply for bail after losing in the lower appeal court last year and finished serving his 12-month jail sentence in January, when he was released from the custodial ward of Queen Mary Hospital in Pok Fu Lam.
Donald Tsang being taken to hospital by ambulance after he lost his appeal against his misconduct conviction in July 2018. Photo: Felix Wong

His talks with Wong in relation to the penthouse in the fashionable Futian District in Shenzhen took place between 2010 and 2012

Wong owned the flat through East Pacific Group, a property company. He was also the major shareholder of a now-defunct radio station in Hong Kong, Wave Media, which was applying for a digital broadcasting licence that required Tsang’s approval.

His lawyer argued Tsang genuinely believed it would be “far-fetched” for him to declare; therefore it was not “wilful”. But trial judge Andrew Chan Hing-wai told the jury to convict him as long as they found his omission “deliberate”.

The Junhao Building, East Pacific Garden in Shenzhen where Donald Tsang had intended renting a flat from mainland-based businessman Bill Wong. Photo: Dickson Lee

As a result, jurors in 2017 found Tsang’s failure to disclose the deal to his Executive Council amounted to misconduct in public office. He was sentenced to 18 months in jail.

The top judges on Wednesday said being deliberate did not necessarily equate with being wilful.

“A failure by a decision-maker to disclose an interest … may be deliberate in the sense that the decision-maker thought about disclosure and decided against it, but not wilful because the decision-maker did not know, or believe, there was an obligation to disclose,” the judges wrote.

The jurors failed at the time to decide on a second corruption charge, leading to Tsang being tried again the following year. Prosecutors decided not to pursue that charge after another jury failed to reach a verdict.

On Wednesday, the top justices said the jurors’ indecision should have led the judges and prosecutors to elaborate on how Tsang might have been implicated in other forms of impropriety without being corrupt. No further explanation on other forms of impropriety was provided.

How an Irish missionary shaped ex-Hong Kong leader Donald Tsang

Tsang successfully appealed against his sentence in 2018, reducing it from 18 months to a year, at the lower appeal court, but failed to overturn his conviction. The legal bill of almost HK$5 million the lower court required him to pay was cut by 20 per cent.

Tsang took his case to the Court of Final Appeal, while serving his sentence.

In his statement, Tsang said he soldiered on by holding dearly to two beliefs.

“My wife encouraged me to persist till the end so the court could clear my name,” he said.

He said he also did not want his case to become a precedent for other civil servants, who might be prosecuted as a result of failing to make a declaration.

“This may cause civil servants to shy away from actively taking part in decision-making processes because they try too hard to avoid suspicion, thereby leading to a failure in policy implementation,” he said.

Additional reporting by Alvin Lum and Gary Cheung

This article appeared in the South China Morning Post print edition as: tsang is cleared of criminal misconduct after long fight
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