Tsang clears his name

Former chief executive Donald Tsang Yam-kuen says he is grateful that the highest court has cleared his name and put an end to a legal battle lasting more than seven years.

Jane Cheung

Thursday, June 27, 2019

Former chief executive Donald Tsang Yam-kuen says he is grateful that the highest court has cleared his name and put an end to a legal battle lasting more than seven years.

The five-judge panel of the Court of Final Appeal in a 33-page written verdict unanimously quashed the conviction and sentence of Tsang, who has already completed a 12-month jail sentence for misconduct in public office.

The judges - Chief Justice Geoffrey Ma Tao-li, permanent judges Roberto Ribeiro, Joseph Fok Shiu-kong and Andrew Cheung Kui-nung and non-permanent judge Anthony Gleeson - said trial judge Andrew Chan Hing-wai in the Court of First Instance had not given jurors adequate directions in 2017.

The 74-year-old Tsang, who is not in Hong Kong for his final victory, said in a statement he had struggled over whether to appeal to the highest court due to long procedures and high legal costs, but his wife, Selena, insisted on clearing his name and wanted to see justice done.

He was worried that his case would make others in public positions avoid taking part in policy decision making to avoid potential conflicts of interest.

"The trial has almost run out the life-long savings of me and my wife," he said. "My family and I suffered a lot, mentally and physically," he said.

Tsang thanked his family, friends, former colleagues, church officers and tens of thousands of citizens who supported him.

"In these seven years, I was lucky to have gained the trust of my family. We stuck together during the difficult period," he said. "Many citizens have sent me their support and encouragement and my legal team worked exceptionally hard to defend me.

"In the future, my wife, family and I wish to return to our normal lives and to pursue wellness and stability on a path accompanied by the holy spirit."

Tsang was convicted in 2017 of misconduct in public office during the licence application of Wave Media - renamed Digital Broadcasting Corp Hong Kong - as the chief executive and head of the Executive Council while concealing his rental deal with businessman Bill Wong Cho-bau, a major shareholder of the broadcaster.

However, the panel said in the judgment that trial judge Chan did not give the jury sufficient guidance and, therefore, decided to acquit Tsang of the conviction and sentence. The panel said Tsang originally faced one count of accepting an advantage as chief executive and two counts of misconduct in public office.

He was found guilty on a count of misconduct in relation to Wave Media by a jury count of eight to one after more than a month's hearing in the High Court, but the jury found him innocent of the other count.

The jury also failed to reach an overwhelming majority for the offense of accepting an advantage.

The panel said the prosecution accused Tsang of bribery for his property deal with Wong, and based on accepting an advantage as chief executive offense, it further accused Tsang of misconduct in public office for concealing his corruption.

"Since the jury were unable to agree on the bribery offense, and therefore on the primary case for the prosecution of misconduct in public office, an interpretation of their verdict on misconduct in public office can hardly be made with confidence if the misconduct offense was never clearly explained," the judgment said.

"The prosecution's alternative case of misconduct in public office was so nebulous, and the directions were so confined, that it is difficult to attribute any particular process of reasoning to the jurors who did not accept the primary case," it added.

The judges said: "If the jury had convicted the appellant on the first charge, conviction on the second was almost inevitable," adding that the juror would have had reasonable grounds to convict Tsang of misconduct in public office if they had been given adequate guidance from Judge Chan.

Despite that, the panel decided not to require a retrial for Tsang as he had already served the whole jail sentence.

Tsang, who was the chief executive from 2005 to 2012, was originally jailed for 20 months in 2017 but after serving two months, he was granted bail of HK$100,000 to appeal against his conviction and sentence to the Court of Appeal.

He also appealed against the court order that he pay HK$5 million for the prosecution bill.

Despite the Court of Appeal dismissing his appeal against conviction, his prison term was reduced to 12 months and legal bill to HK$1 million.

Tsang returned to jail and in December last year he turned to the Court of Final Appeal.

He walked free upon completing his sentence in January this year.