Court rejects former Hong Kong leader Donald Tsang’s appeal against misconduct conviction

A Hong Kong court on Friday threw out jailed former city leader Donald Tsang Yam-kuen’s second attempt to appeal against his conviction for misconduct in public office.

But the ex-chief executive still has one more chance to appeal, by seeking leave from the Court of Final Appeal. His lawyers already applied to do so, two weeks ago.

Court of Appeal justices Wally Yeung Chun-kuen, Andrew Macrae and Derek Pang Wai-cheong on Friday refused to certify that a point of law of great and general importance was involved in the high-profile case.

They also ordered Tsang to pay the prosecutors’ costs of handling his application, which they concluded was “not only without merit but … was also without the distillation and focus that is expected of such applications”.

Tsang’s conviction centred on a conflict of interest involving a three-storey luxury penthouse in the fashionable district of Futian in Shenzhen, mainland China.

The 73-year-old, who was chief executive from 2005 to 2012, had planned to make the penthouse his temporary retirement home. He began negotiations to rent the property, which belonged to a company chaired by mainland businessman Bill Wong Cho-bau, at a time when Tsang was in charge of approving licence applications from radio station Wave Media, of which Wong was a majority shareholder.

He never declared his dealings with Wong to his cabinet while the licence applications were considered.

He was found guilty of misconduct in public office by an 8-1 jury in February last year, for failing to disclose the penthouse deal.

While Tsang argued there was nothing corrupt about his conduct, the appeal justices ruled last month he was still criminally liable for deliberately keeping it quiet. However, they reduced his original 20-month jail sentence to 12 months.

Tsang has served about three months of his sentence.

He did not show up in court to collect the judgment on Friday morning, due to his “current health condition”, evidenced by a Queen Mary Hospital medical report.

His lawyers had argued that three points of law arose from the Court of Appeal’s earlier judgment, concerning the mental element of the offence, the seriousness of the offence and the effect of an apparent failure to correct the judge’s summing-up before the jury.

They asked to what extent was it necessary for the jury to be directed that, for the crime of misconduct in public office, the official must know his conduct is unlawful in addition to a direction that the act itself must be deliberate.

They also questioned to what extent was the trial judge required to help the jury assess the seriousness of the crime; and “to what extent does a supposed failure by defence counsel justify the omission of a direction to a jury on the central fault element of an offence”.

But the judges concluded the “plethora of disparate questions” posed “simply do not arise in this case”.

“The law relating to misconduct in public office has been well settled in this jurisdiction,” Macrae wrote on behalf of the judges in a 10-page ruling. “With regards to the issues identified by the applicant, it seems to us they do not raise any new or novel points of law of great and general importance.”