Tsang takes final shot at clearing nameTop News | Jane Cheung 15 May 2019
The trial judge failed to ask jurors to decide whether former chief executive Donald Tsang Yam-kuen deliberately hid his conflict of interest, knowing that it was illegal, the Court of Final Appeal heard yesterday.
This was one of the points raised by Tsang's lawyer, Clare Montgomery, QC, before Court of Appeal Chief Justice Geoffrey Ma Tao-li and permanent judges Roberto Ribeiro, Joseph Fok Shiu-kong, Andrew Cheung Kui-nung and non-permanent judge Anthony Gleeson.
However, Ma said Tsang undoubtedly concealed his relationship with landlord and businessman Bill Wong Chau-bau, adding it was common sense for Tsang to reveal the conflict of interest.
The court completed the one-day hearing of Tsang's appeal against conviction and will hand down a written judgment later.
The 73-year-old Tsang was originally jailed for 20 months for failing to inform the Executive Council about a property deal he had with Wong, whose company was applying for a digital radio license.
He was jailed after his conviction in 2017 of one count of misconduct in public office during the license application of Wave Media - renamed Digital Broadcasting Corp Hong Kong - as the chief executive and head of the Exco while concealing his rental deal with Wong, a major shareholder of the broadcaster.
The prison term was later reduced to 12 months by the Court of Appeal.
Despite returning to jail and being freed upon completion of his sentence in January this year, Tsang appealed against his conviction. Montgomery said for Tsang to be found guilty of misconduct, he should have deliberately concealed the deal with the businessman knowing that it was illegal.
But judge Andrew Chan Hing-wai only told jurors that Tsang should be found guilty if he purposely hid the deal with Wong and did not ask them to consider whether Tsang was aware of any wrongdoing, she said.
Ma said Chan had mentioned multiple times the crime elements of Tsang's charge and what Montgomery said was not true. Montgomery said Chan's guidance for the jury missed out the point that jurors should prove Tsang to have hidden the deal knowing that it was illegal.
She said if Tsang did not declare his interest out of negligence, it would only constitute misconduct but not a crime. Tsang committed only a moral wrongdoing.
David Perry, QC, who represents the Department of Justice, said even if the jury failed to reach a verdict on Tsang's corruption charge, the conflict of interest was still valid.
Ma asked whether Chan should have given jurors further guidance after they failed to address the corruption charge, so they could decide whether Tsang had committed a misconduct, to which Perry said Chan had requested the jury to consider the crime elements of each charge separately.
Montgomery said Tsang was exhausted from the long-term trial since 2013 and had gone through two trials on his corruption charge yet jurors failed to reach a verdict. She said Tsang has completed the sentence of his misconduct offense and requested the court not to issue a retrial order for Tsang if the appeal was successful.