17 March 2018
Former chief executive Donald Tsang has been ordered to pay HK$4.6 million to cover the prosecution's costs over his misconduct conviction. The judge said he was uncooperative during the investigation and prosecution of the case. Photo: HKEJ
Former chief executive Donald Tsang has been ordered to pay HK$4.6 million to cover the prosecution's costs over his misconduct conviction. The judge said he was uncooperative during the investigation and prosecution of the case. Photo: HKEJ

The Donald Tsang costs order (I)

(First of a two-part series)

And though all my law be fudge I will never never budge…”  – Gilbert & Sullivan’s Trial by Jury

I hold no brief for Donald Tsang but if the judgment holding him liable for one-third of the prosecution’s costs in his first trial is indicative of the quality of criminal justice in Hong Kong, I despair.

Let it serve as an object warning to all judges as to how not to write a judgment.

Having addressed the reasoning behind the costs order, the judge then embarked on a most curious and, so far as one can see, entirely unsubstantiated series of allegations, making statements that out of the courtroom setting would be meat for a series of libel actions.

The sting in the judge’s allegations was that a PR firm had been employed to introduce into the public gallery prominent public figures, some of whom were identified by their former public office, with the objective of impressing on the jury that Tsang was a good person with support across the spectrum of society.

The individual identified as a PR consultant was never questioned by the judge and upon publication of the judgment, she immediately and publicly denied that she was there in any but her private capacity as a friend of Tsang’s.

Anyone familiar with the ex-secretary for justice maligned by the judge would know immediately that there is no way in the world that he would be party to any such campaign.

The fact is that the existence of any such plan is the product of an over-fertile judicial imagination, unfounded in fact and untested, an extraordinary occurrence in the context of a High Court Order.

Yet another illustration of eccentric judicial conduct is the commentary on the incident of one of the jurors who approached and had his photo taken with a well-known radio show host who had attended the trial. This celebrity publicly supported Tsang and sat in the area reserved for Tsang’s friends and relatives.

The juror was questioned and admitted that he was a fan of the radio host but that his conversation was only about casual matters. The judge acceded to the prosecution’s application to discharge the juror, with which decision I have no problem but his reasoning, that the juror was a supporter of one of Tsang’s supporters, is extremely tenuous.

Now having convinced himself, incorrectly, that there was a concerted effort, orchestrated by a PR consultant to influence the jury by the presence of a number of well-known figures, he concluded that this was a plan to establish that Tsang was a man of good character and that Tsang “had decided to introduce such evidence [of good character] through the back door”.

No-one tainted by this calumny was afforded an opportunity to respond. At the close of his judgment, the judge wished to emphasize that “there is no allegation against any persons who were brought into court by the public relations… consultant”.

But the damage is already done in deciding that these people were “brought in” rather than that they went there quite of their own accord and had nothing to do with being brought there by any PR consultant.

The judge was compelled to concede that “there was of course no direct evidence suggesting that the public relations firm or consultant had been engaged by the defendant himself…” despite which he held that “…the inference however was overwhelming and it would be an affront to common sense to conclude that there was not some consent, acquiescence or involvement by the defendant”.

I do not recall ever having heard such unsubstantiated and untested judicial damnation uttered in the knowledge that the condemned had no avenue of response.

The context for this attack referred to Tsang’s “good character”.

When a defendant has no previous convictions, the fact of his “good character” is something that the judge must refer to in his summing up to the jury, stating in simple terms that someone of good character is less likely to commit an offense.

Tsang’s status was discussed before the start of the re-trial and because he had been convicted of one charge in the first trial, the judge held that he was no longer entitled to have the “good character” direction given to the jury. Logically and equitably, this cannot be correct.

The second trial was a re-trial of the offenses for which the jury had been unable to reach a verdict in the first trial. The question is what was his status at the time of the commission of the offense because when the first jury retired to consider its verdict the judge was obliged to give a good character direction which embraced all the counts on the indictment at that time.

The value of a defendant’s good character relates to his or her status up to the moment that they are charged with an offense. The conduct that is being questioned may give rise to a number of different offenses or charges on the indictment but all arise out of the same broad factual base.

In essence, the re-trial is a continuation of the first trial and the jury should be directed to focus on the defendant’s status at the time he or she was charged with the offense because it is a defendant’s propensity to commit a crime prior to being charged that is relevant.

The judge then leap-frogs over good character and starts to talk about jury tampering.

The fact that a juror quite openly approached and talked to one of Tsang’s supporters bears no relationship whatsoever to jury tampering.

Any attempt to tamper with a jury is, of necessity, a clandestine operation and involves an agent of the defendant approaching a member or members of the jury, in secret and usually with a threat or inducement.

Nothing even remotely like this occurred.

Having invented possible jury tampering, the judge was so exercised by this notion that he suggested that it is time to consider trial by judge alone on indictment where there is a danger of jury tampering. Trial on indictment in the District Court is by judge alone.

Not content with that, he delivered himself of this egregious observation: “It came therefore with [sic] no surprise that in recent years, when the wealthy and powerful were charged with criminal offenses, they tried all kinds of means and ways to list their cases in the High Court before a jury.”

He ignored or chose to ignore the fact that only the prosecution has the power to decide whether a case goes before a jury, and no defendant in Hong Kong has the option to elect trial by jury.

Trial by a jury of one’s peers is perhaps the greatest defense against the power of the establishment. In the words of Lord Devlin, it is “the lamp that shows where freedom lives”.

To the extent that a defendant indicted for trial on a criminal offense is deprived of trial by jury, the lamp is shuttered.

Conclusion: The Donald Tsang costs order (II)

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