19 March 2018
Former chief executive Donald Tsang and his wife Selina outside the courthouse. Photo: HKEJ
Former chief executive Donald Tsang and his wife Selina outside the courthouse. Photo: HKEJ

The Donald Tsang costs order (II)

(Second of a two-part series)

The judge held that he had come to the view “that the way the defendant conducted himself towards the investigation and prosecution” in the case against him “warrants the imposition of a costs order.

The judge correctly identified the legal principle set out in HKSAR v Chan Kwok Wah that a convicted defendant should only be ordered to pay the costs in special circumstances.

That same decision decided that special circumstances are where unnecessary or additional expenditure was incurred by the prosecution as a consequence of the way in which the defendant conducted his defense or that he willfully wasted the court’s time.

Now, to see this issue in its proper context, one must go back to basics and what we criminal lawyers call “The Golden Thread”. Hong Kong follows the English common law principle articulated by Viscount Sankey in 1935 in DPP v Woomington:

“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt…”

In practice, this means that the burden of proving someone guilty of an offense rests from start to finish on the prosecution and everyone accused of a crime is entitled, as a constitutional right, to remain silent when the prosecution investigates whether or not an offense has been committed.

Expanding a little on his statement, Viscount Sankey went on to say:

“No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

It is against this, the most basic of legal principles, that the decision to direct that Donald Tsang pay a third of the prosecution’s costs has to be considered and, to be quite clear, in my opinion it is seriously flawed.

The Court of Appeal in Chan Kwok Wah made clear that such a costs order cannot be part of the punishment imposed on the defendant. A disinterested bystander reading this judgment would be bound to conclude that this costs order was punitive.

What then were the special circumstances that warranted a costs order?

Referring to the conduct of the defense case the judge cited various statements made in public by Donald Tsang before he was first interviewed by the ICAC “under caution”.

That phrase “under caution” means that he was told, “You are not obliged to say anything unless you wish to do so but what you say will be put into writing and given in evidence.”

Administering the caution is a timely reminder that anyone interviewed by a law enforcement body has the right to remain silent, which simply emphasizes that the obligation, or as we put it the burden, rests solely on the prosecution to put together their case; it is not for an accused person to make the case for them.

Recalling Donald Tsang’s public statements in February 2012 to the effect that he would fully cooperate with the ICAC “if it is really to be done” and in March 2012 to the Legislative Council that he would “definitely render my full co-operation”, the judge observed that between February and June 2012 he had rendered no assistance to the ICAC “during the remainer [sic] of his term as Chief Executive”.

The judge’s fundamental premise for criticizing Tsang, namely that he had not co-operated with the prosecution, vitiates the integrity of the judgment.

This grave error is encapsulated in paragraph 15 of the judgment:

“When the defendant was approached by the ICAC in October 2013, he exercised his right of silence. Despite his repeated assurance to the public as the Chief Executive that he would render full co-operation to the ICAC, he gave no assistance whatsoever.”

The law recognizes no such obligation.

Keep in mind that prior to October 2013 no specific criminal charge had yet been formulated, let alone leveled against him by the ICAC.

The judge then turned to the specifics of his criticism.

In February 2012 Tsang stated publicly that he had leased a Shenzhen property and paid 800,000 yuan to the landlord. Yet, said the judge, he produced no lease or rental receipt and when the ICAC approached Tsang’s lawyers for documentary evidence, they did not provide it.

It is important at this juncture to remember that Tsang was represented by experienced lawyers and one expects the client to be guided by the advice of his legal team.

When the ICAC used the threat of a search and seize warrant, the documents were produced. Any prosecutor requiring documents knows that a search warrant is usually necessary.

The judge then specifically criticized Tsang for remaining silent and not offering an explanation concerning the property or his relationship with various people including David Li.

The judge omitted the fact that the ICAC chose not to interview David Li, explaining that as they did not anticipate co-operation from him they decided not to try. I have to say that I have never heard a more fatuous excuse for not conducting an interview.

Surprisingly, the judge then commented that “the evidential value of these documents [is] worth nothing on their face…” Which, being the case, one wonders why they founded a costs order.

Tsang’s wife was a signatory to the lease but she declined to sign a witness statement prepared by the ICAC. Tsang’s lawyers argued that a wife is not compellable as a witness against her husband but the judge ruled that this did not apply to the document. This perfectly proper legal submission, too, was relied on as justification for the costs order.

Because Tsang failed to give an explanation for discrepancies and contradictions in the documents that he did not produce, the ICAC had to conduct further investigations into the rental payment. You and I might think that this is what the ICAC is paid to do but the judge appears to labor under the false impression that a person accused must assist in preparing the case against himself.

According to the judge, it took the ICAC over two and half years to complete what he calls “the fund flow investigation”, describing the time and effort spent as “huge”. As this “fund flow” was, essentially, the basis for the case against Tsang, it is unremarkable that it took time and effort.

Turning to the financial transactions in which he was involved, the judge complained that Tsang only admitted them after the formality of the bankers’ affirmations had been carried out and served as additional evidence. Why they were not served at the outset strikes me as somewhat less than efficient on the part of the prosecution. Every young barrister knows that any case involving bank statements requires formal proof by bankers.

Yet again, no competent counsel would admit such evidence without the formalities having been observed. It is not a question of “undeniability” as the judge moaned, but requiring the prosecution to do its job properly.

Much the same applies to the allegation of failing to admit the structure of the Shenzhen East Pacific Group Limited or the announcement by that company in various newspapers, evidence which was obtained by executing a search warrant against the newspapers. If it was essential to the prosecution case, one has to ask why they waited until January 2017 before doing so?

Another legal issue raised by the defense legal team related to whether or not the Chief Executive was bound by the Codes of Conduct with regard to disclosing matters to the Executive Council. The court ruled against the defense but in being guided by his lawyers, Tsang was held, in effect, to have willfully wasted the court’s time.

The judge’s characterizations of Tsang’s alleged transgressions did not merely whittle away the golden thread but tore it to shreds. The upshot was an order that he pay one-third of the prosecution’s costs including the expense of three counsel. Three counsel?

Not only three counsel but a QC from London, a Hong Kong SC and one of the most outstanding junior barristers in criminal practice in Hong Kong. Why, one asks, was it necessary to instruct a London QC? To assert, as the Department of Justice did, that none of Hong Kong’s QCs or SCs was capable of the job is arrant rubbish.

The very decision to seek a re-trial on what, objectively, was a dubious allegation did not inspire confidence in the corporate judgment of the Department of Justice. At least they did not try to load part of the cost of the ruptured second enterprise onto Tsang.

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