Jury ‘misdirected’ in former Hong Kong leader Donald Tsang’s misconduct trial, appeal court told
Judge did not adequately explain mental element of offence to the nine jurors before their deliberations, Tsang’s counsel argues
The jury that found former Hong Kong chief executive Donald Tsang Yam-kuen guilty of misconduct in public office was misdirected on fundamental features of the crime, a court heard on Wednesday.
Tsang’s counsel, Clare Montgomery QC, said the mental element of the offence had always been “a source of problem”, as seen in the direction given by trial judge Mr Justice Andrew Chan Hing-wai, who failed, she argued, to adequately explain it to the nine jurors before their deliberations.
She also argued that Tsang’s culpability did not justify an immediate custodial sentence, and said the judge had adopted a wrong starting point for the sentence even if jail was necessary, given the strong mitigating factors that included her client’s serious ill health.
Tsang, 73, is seeking leave to appeal from the High Court against his conviction and sentence, and a HK$4.6 million (US$590,000) legal bill demanded by prosecutors.
The former chief executive was the first leader in the city to be tainted by a criminal conviction, following a high-profile, six-week trial that concluded in February last year.
The jury found him guilty of one count of misconduct in public office by a majority verdict of eight to one, over his failure to declare his interest in a three-storey penthouse in mainland China, as well as his ties to the boss of radio broadcaster Wave Media, when he approved three licence applications from the local radio station during his term in office.
But the same jury cleared him of a separate count of misconduct in public office, and failed to reach a verdict on a bribery charge, which led to a second trial by a new jury that also failed to reach a consensus.
Sentencing Tsang to 20 months’ imprisonment in February, Chan said: “Never in my judicial career have I seen a man fallen from so high.”
Tsang was released on bail pending an appeal, after two months in maximum-security Stanley Prison, on April 24 last year.
On Wednesday, he returned to the dock before Court of Appeal vice-presidents Mr Justice Wally Yeung Chun-kuen and Mr Justice Andrew Macrae, and appeal judge Mr Justice Derek Pang Wai-cheong for a two-day hearing.
Montgomery argued that the offence of misconduct in public office required complex and elaborate direction to the jury.
“At a minimum,” she said, “there has to be an indication that the defendant must know what he was doing was a breach of duty.”
She said the offence also involved an improper motive, and required a very specific direction that personal motivation has to be main reason behind the act, and there has to be no genuine belief in the public interest.
She said good direction on “wilful misconduct” involved explaining to the jury that the crime requires the accused intending to secure a personal gain that he did not disclose; his representations being in breach of his duties; and the misconduct being wilful, in that the accused knew his obligations.
But Montgomery said Chan failed to mention such requirement of “subjective appreciation of wrongfulness” in his “most serious and obvious” example of misdirection, despite defence counsels’ request for clarification after the jury raised questions.
“There is an inescapable consequence of what the judge said to the jury: they would convict,” she said.
Montgomery also argued that the judge was required to accurately identify the nature of duty that had been breached to ensure the jury was properly directed on how serious a crime needs to be to warrant a conviction.
In cases of non-disclosure such as the present one where there was no underlying corruption, she said, the jury should have been told that they could not assess seriousness unless they had decided on the context, the basis for disclosure, the motive for non-disclosure and the consequences, such as the impact on decision-making, public confidence and public office.
“It’s not sufficient to say the conduct was so serious that it amounted to an abuse of office,” she said, in reference to Chan’s direction.
But prosecutor David Perry QC countered that the judge had made clear a deliberate breach of duty was required to prove the offence.
“The misconduct concerned in this case was extremely serious,” he said. “It raises serious doubts why these important and sensitive decisions involving a broadcasting license were taken … at a time when [Tsang] was hopelessly compromised.”
Perry also said that an immediate complaint was the best indicator of whether the judge’s summing up of evidence and the law was seen as unfair at the time, yet there was none in the present case.
“The obvious implication is it was clear that this was a serious case of deliberate suppression of information,” he argued. “Secondly, it was clear the summing up was favourable to the defendant.”
The hearing continues.