Introduction

In our previous newsletter “Donald Tsang’s Conviction Sheds Light on the Offence of Misconduct in Public Office”, we discussed the conviction in February 2017 of Mr Donald Tsang Yam-kuen (“Tsang”), the former Chief Executive of Hong Kong (the “Chief Executive”), of the charge of misconduct in public office. Tsang first appealed to the Court of Appeal against his conviction and sentence, which allowed the appeal against sentence and reduced the sentence from 20 months to 12 months of imprisonment (a term of which has now been served). Tsang further appealed to the Court of Final Appeal (the “CFA”), which recently quashed the conviction against Tsang for misconduct in public office, bringing to an end the prolonged legal battle for Tsang.

Background

From 1 January 2010 to 30 June 2012, when Tsang was the Chief Executive and the President of the Executive Council, he was involved in approving applications in relation to sound broadcasting licences made by Wave Media Limited (later re-named as Digital Broadcasting Corporation Hong Kong Limited) (the “Applicant”). During that period, Tsang was negotiating with a shareholder of the Applicant, Wong Cho-bau (“Wong”), in relation to the lease, refurbishment and re-decoration of a property in Shenzhen (the “Property”) from/by a company controlled by Wong. A sum of RMB800,000 had been made by the spouse of Tsang to a company related to the company holding the Property.

Following the above, Tsang was charged with, among others, (i) an offence of bribery (“Charge 1”), which could not be agreed upon by the jury after two trials; and (ii) an offence of misconduct in public office (“Charge 2”) as discussed above.

Common law offence of misconduct in public office

In Hong Kong, the elements of the common law offence of misconduct in public office are as follows (Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192):

1.a public official;

2.in the course of or in relation to his public office;

3.wilfully misconducted himself; by act or omission, for example, 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.

Discussions in the present case concerned points 3 and 5 above, namely, whether Tsang had wilfully misconducted himself and whether such misconduct was serious.

Issues on appeal

Leave to appeal granted on the basis of points of law mainly concerned the proper direction and assistance to be provided to the jury in respect of (i) the mental element of the offence of misconduct in public office and (ii) the element of seriousness in the offence of misconduct in public office.

Analysis

Non-disclosure

The issue was whether the non-disclosure by Tsang of his dealings with Wong in the course of his handling of applications made by the Applicant (20% interest of which was held by Wong at the material time) amounted to “wilful misconduct”.

The CFA considered that it is irrelevant whether the misconduct involves an act proscribed by the statute and whether one obtains personal benefit from the misconduct. It is the capacity of the offence which matters. The offence strikes at abuse of powers or duties instead of errors of judgement.

In the present case, the particulars of the alleged misconduct are failing to declare or disclose (which may result from errors of judgement) or concealing (which implies dishonesty). In the case of non-disclosure, where corruption, dishonesty or other illegal practices are not involved, the consequence of the misconduct may not be obvious. The CFA took the view that leaving a jury to its own devices in assessing the seriousness of the misconduct to constitute an offence in such case may be dangerous. A court shall provide assistance to a jury as to the method to assess seriousness and harm by putting the conduct into its proper factual context. As previously discussed, the jury failed to reach a conclusion for Charge 1 after two trials. In the absence of determination on corruption, the issues as to wilfulness and seriousness of non-disclosure became crucial.

Adequacy of directions on Charge 2

The prosecution’s case was mainly framed with linkage between Charge 1 and Charge 2, describing Tsang as “hopelessly compromised” (i.e. what was being concealed was a bribe). On the other hand, counsel for Tsang submitted that there was no obligation of disclosure, as the dealings between Tsang and Wong were at arm’s length, commercial and having no connection with the broadcasting applications which were themselves uncontroversial. It was argued that even if such an obligation existed, the non-disclosure did not amount to wilful misconduct which was serious enough to attract criminal liability for the offence of misconduct in public office.

In the course of the proceedings, counsel for the prosecution only briefly referred to the position that Tsang’s obligation of disclosure remained regardless of the outcome of Charge 1. Similarly, the trial judge only briefly referred to the possibility that there existed no corrupt practice, but failed to further elaborate on the possibility of some non-corrupt impropriety.

The nature of the offence of misconduct in public office gives rise to the requirement of jury’s assessment of whether the alleged misconduct is so serious as to involve an element of culpability, to the extent that it is calculated to cause injury to the public interest so as to call for condemnation and punishment. Jurors are expected to have reasons for their decision, which has to be supported by trial process that involves reasoned argument by counsel and appropriate judicial directions.

The CFA concluded that the trial judge’s directions to jury on wilfulness and seriousness were inadequate, which might be immaterial if Tsang was convicted on both Charge 1 and Charge 2 but not in the present case. In the absence of a conclusion regarding corruption, the evaluation of the nature and extent of Tsang’s departure from his responsibilities and the seriousness of the consequences followed from his omission requires consideration of the motives behind Tsang’s omission, the subject matter Tsang was required to disclose and the consequence of non-disclosure.

Conclusion

Based on the above, Tsang’s conviction and sentence in relation to Charge 2 was quashed. Despite the office held by Tsang might attract public interest in a definitive resolution of the charges against him, the CFA considered that interests of justice do not require a retrial, as Tsang has already served the whole of the sentence imposed on him. Despite the conviction was eventually quashed, Tsang’s case serves as a warning to officials to be mindful of the possibility of conflicts of interest in the course of their public offices.