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Donald Tsang

Despite a change in strategy, prosecutors come up short again in former Hong Kong leader Donald Tsang’s bribery trial

Law experts say they understand the logic behind the decision by prosecutors to change the language of the charges

PUBLISHED : Tuesday, 07 November, 2017, 8:32am
UPDATED : Tuesday, 07 November, 2017, 12:45pm

A change in tactics by prosecutors to make it “easier” to prove ­Donald Tsang Yam-kuen was guilty of taking a bribe was understandable, according to legal ­experts, but led to the same ­outcome as an earlier trial – jurors again could not agree whether he had committed such a crime.

The decision to frame the charges in a way that was more open to interpretation – instead of proving a specific act was the ­result of a specific gift – turned out to be ineffective after a trial to convict Tsang, 73, ended on Friday in a hung jury for the second time.

“There is a reason why the jury cannot come to an agreement on this, because different people might have different views,” barrister Albert Luk Wai-hung said.

The prosecutors had accused the former top official of accepting free renovation work from a local radio station’s owner. He was sentenced to 20 months in prison in February after being found guilty of misconduct in public office, but a split decision on the bribery charge prompted the government to seek a second trial.

Tsang has been free on bail since April pending his appeal on the misconduct conviction.

In the first trial, prosecutors said Tsang granted three licences to Wave Media in return for a custom HK$3.8 million (US$487,000) renovation, free of charge, for a retirement penthouse on the mainland in Shenzhen owned by Bill Wong Cho-bau, Wave Media’s majority shareholder.

However, in the second trial, the prosecution said the renovation had, in prosecutor David Perry QC’s words, “sweetened” Tsang towards Wave Media, making him “favourably disposed” – which is a crime regardless of whether anything was given in return.

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Even though the new approach failed to achieve a different result, some legal scholars said they could understand the logic behind the prosecution’s new approach.

“It makes the prosecution’s case easier as it does not need to prove that Tsang did a specific positive act on account of granting the applications,” said Simon Young Ngai-man associate law dean at the University of Hong Kong.

Instead of having to show Tsang had granted Wave Media a digital licence, its application to surrender its AM licence, and its request to appoint Arthur Li Kwok-cheung as its chairman, Young said, the prosecutors now only had to demonstrate that Tsang had slipped into “a state of mind” where he was more inclined to act favourably towards the radio station.

Young said the change might have had something to do with a top court’s earlier decision on the final appeal of Rafael Hui Si-yan, who was Tsang’s chief secretary between 2005 and 2007. Hui was convicted of a string of bribery and misconduct charges in 2014 and was jailed for 7 1/ 2 years. 

The scholar, who has researched anti-corruption law, said Hong Kong’s highest court’s ruling on Hui would be at play. 

In June, Hui asked the Court of Final Appeal to decide whether it was sufficient to convict, if an official only becomes “favourably disposed” to someone after receiving an advantage without a specific act.

Hui’s lawyers had argued that their client was convicted despite a lack of hard evidence that Hui provided any special treatment to outside parties.

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In rejecting Hui’s appeal, the top court found that so long as an official had received a bribe, he or she was placed in someone else’s “golden fetters”.

Young said that while the Court of Final Appeal was applying the concept to a misconduct charge,“this may have emboldened the prosecution” in Tsang’s case.

Criminal lawyer Jonathan Midgley said the prosecution would normally take into account factors, including prior court judgments, when deciding charges.

“It's entirely possible that, for example, that the Rafael Hui judgment might have had a bearing”, he said.

Perry, the prosecutor, cited the Hui case during deliberations when jurors asked if there had to be a link between the licensing applications and the renovation.

“I would imagine it had something to do either with making its case more understandable, or else with not tying its own hands unnecessarily, or both,” former director of public prosecution Grenville Cross SC said.

But the easier path did not lead to a successful prosecution. 

While the prosecution had argued the renovation was indeed to make Tsang “favourably disposed to Wave Media, the defence countered that the renovation was to entice a high-profile figure such as Tsang to lease the flat in Shenzhen for 800,000 yuan (HK$940,000) a year.

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This left the jury to interpret for themselves which account was more believable, Luk said.

“On one hand, you take an advantage or they won’t decorate your house so beautifully. On the other hand, since you are the chief executive, if you live in this building it will become more attractive or saleable, so this is why the jury cannot come to an agreement on this.”

Young and Cross said the outcome of the present trial would not have any bearing on Tsang’s appeal against his misconduct conviction because they were two separate cases.