Introduction

Five years since the media reported the Former Chief Executive of Hong Kong, Donald Tsang Yam-kuen (“Tsang”), accepted tycoons’ favours in various ways, Tsang was found guilty after trial by jury for a charge of the common law offence of misconduct in public office and was sentenced to 20 months’ imprisonment.

While Tsang was acquitted of another charge of misconduct in public office, Tsang will face retrial on the charge of chief executive accepting an advantage in September 2017 since the jury could not reach a verdict on it.

Background of the convicted charge

Between 1 January 2010 and 30 June 2012, when Tsang was the Chief Executive and the President of the Executive Council, he was involved in approving three applications made by Wave Media Limited (“Wave Media”) (subsequently renamed Digital Broadcasting Corporation Hong Kong Limited) (the “Applications”).

At the same time, Tsang was negotiating with the major shareholder of Wave Media, Mr Wong Cho-bau (“Mr Wong”), for a lease for a three-storey residential property situated in Shenzhen and there was a related payment of RMB800,000 to a company of Mr Wong in November 2010.

However, Tsang did not disclose his relationship with Mr Wong when the Executive Council was discussing the Applications.

Misconduct in public office

Misconduct in public office is a common law offence, its existence and formulation has been considered by the Court of Final Appeal in a number of cases. The elements of the offence of misconduct in public office were reformulated by Sir Anthony Mason NPJ in the case of Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192, namely:

1. a public official;
2. in the course of or in relation to his public office;
3. wilfully misconducted himself; by act or omission, e.g. by wilfully neglecting or failing to perform his duty;
4. without reasonable excuse or justification; and
5. where such misconduct was serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they served and the nature and extent of the departure from those responsibilities.

It was noted that the misconduct must be deliberate rather than accidental in that the official either knew that his conduct was unlawful or willfully disregarded the risk that his conduct was unlawful.

The verdict

The jury of nine, after two days of deliberations, convicted Tsang of the charge of misconduct in public office for failing to disclose his relationship with Mr Wong when the Executive Council discussed the Applications, by an eight-to-one majority.

This was not a surprising verdict. Tsang, being the Chief Executive and discussed the Applications in the Executive Council, was no doubt a public official in the course of his public office. Tsang’s defence counsel argued that Tsang’s failure to disclose his relationship with Mr Wong was only a “minor error of judgment at worst”. The jury, by convicting Tsang, apparently did not accept such explanation and was of the view that his failure to disclose his relationship with Mr Wong was willful, without reasonable explanation and serious enough to amount to a misconduct.

The sentence

The maximum sentence for misconduct in public office is 7 years’ imprisonment. In passing the sentence against Tsang, the Honourable Mr Justice Andrew Chan Hing-wai said the seriousness of the offence lied in the position which Tsang occupied. The Chief Executive is the head of the government of Hong Kong, and is accountable to the people of Hong Kong and the Central People’s Government, and his decisions in the Executive Council in relation to the Application could affect many people in Hong Kong. Therefore such breach of trust was significant. The Judge adopted a starting point of 30 months’ imprisonment and reduced to 20 months’ imprisonment after taking into account Tsang’s good character and past contributions to Hong Kong.

Lesson to learn

The offence of misconduct in public office is an important prosecutorial asset to allow prosecution of offences not specifically covered by the Prevention of Bribery Ordinance (Cap. 201) (the “POBO”). Although a few offences under the POBO now cover the Chief Executive (including the bribery offence of chief executive accepting an advantage under section 4(2B)(a) of the POBO), some offences under the POBO are yet to cover the Chief Executive (including the offences of soliciting or accepting advantage under sections 3 and 8 of the POBO).

It was also reported in the news that the Judge in giving his direction to the jury noted that the jury should decide the bribery charge and the charges of misconduct in public office independently. The jury can still convict Tsang for misconduct in public office even they consider Tsang was innocent of accepting an advantage. It again shows how wide the scope offence of misconduct in public office can cover.

Although it might not be easy for the prosecution to prove all the elements for the offence of misconduct in public office, it will remain to be the major weapon to put Chief Executives and senior government officials under scrutiny.

The conviction against Tsang and the approach in sentencing is also a stern warning to all senior government officials that high ranking government officials in a position of trust are expected to meet higher standards (to be “whiter than white”).

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.