Would a retrial of Donald Tsang accomplish anything?

February 28, 2017 10:22
Donald Tsang's conviction is a sad indictment of the man but a powerful reminder of the integrity of Hong Kong’s judicial system.  Photos: TVB, Reuters

Convicted of misconduct in public office, an offense particularly apposite in relation to a person in high office, Donald Tsang was sentenced to 20 months' imprisonment.

Twenty months' imprisonment is a very strange sentence for a High Court; it smacks of the sort of sentence that would be handed down by a magistrate.

However, the nature of the crime was abusing the powers enjoyed by that public office to influence a government decision in favor of a particular individual.

It matters not whether the beneficiary of this favoritism rewarded Mr. Tsang in any way, because it is the very abuse of the power that constitutes the gravamen of the crime.

It is an essential corollary of power in a civilized society that it be exercised fairly and without fear or favor.

The trappings of power, in this instance the salary, the fringe benefits of house, chauffeur-driven car, the pension and the handsome "golden bowler", the often too obsequious deference paid to the holder, are intended to discourage its abuse should he or she ever be tempted to do so.

It is against this backcloth that Tsang’s conduct has to be measured.

We need only to focus on his behavior while chief executive to form an impression of the man’s character.

His predilection for asserting the symbols of status were evidenced by his attitude towards maximizing his entitlements, such as using the presidential suite in hotels on foreign visits.

Accepting the hospitality of the uber-rich owners of private yachts and jets put him in the invidious position of being beholden to them, never a wise course for a man wielding the influence of Hong Kong’s chief executive.

Could it be perhaps that he harbored a sense of insecurity, so that rubbing shoulders with the rich and famous gave him a feeling of being at home in such company?

Such an association would have a tendency to corrupt his perception of the limits on his powers.

The conviction, on its own, shattered the illusion of pre-eminence, the false sense of a status so high that it transcended the law; a timely reminder for the current incumbent.

“Be you never so high, the law is above you” as Thomas Fuller said in 1733.

Those who have never been imprisoned cannot easily comprehend just how harrowing and degrading an experience it is.

As Lord Justice Edmund Davies put it so eloquently, one cannot ignore the traumatic effect of “the clang of the prison gates” on someone given a custodial sentence.

For a man accustomed to the trappings of power and influence, it will have been devastating, doubly so for being paraded in court not merely handcuffed but shackled in chains.

Tsang has been humbled, dramatically.

For many, the systemic corruption that riddled the colony before the Independent Commission Against Corruption (ICAC), was introduced by Governor Murray MacLehose, is distant history but the cleanup resulted in Hong Kong earning the accolade of Asia’s least corrupt administration.

For its chief executive to be convicted of abusing his office is a sad indictment of the man but a powerful reminder of the integrity of Hong Kong’s judicial system, based as it is on the common law.

Hong Kong’s citizens should be proud of the fact that our system holds no man above the law.

It is less than commendable, however, that the ICAC and Department of Justice took three years and eight months to investigate and prefer charges.

The offense of receiving an advantage, on which the jury failed to agree, was a last-minute addition to the indictment.

It is not appropriate to consider the merits of this allegation with a retrial pending.

But the merits of applying for such a retrial can be considered.

The director of public prosecutions has to take into consideration the prospects of securing a conviction and whether it is in the public’s interests to proceed to a retrial.

The "hung jury" can be regarded as indicative of the prospects of a successful prosecution.

But whether it is in the public’s interests to pursue an additional conviction is highly dubious.

At its highest, it could result in a further period of imprisonment consecutive to the one Tsang is serving.

It is difficult, if not impossible, to discern how the public will be better off by an increase to the period of custody.

Tsang no longer poses a risk, he is highly unlikely to reoffend, the sentence imposed is both a deterrent to him and an example to others who might be similarly tempted.

Which being the case, why should the public have to pay the legal fees necessitated for such an empty gesture, especially as a leading counsel was imported from London?

I hold no banner for Donald Tsang: he has been convicted and duly sentenced to his due desserts.

But a retrial smacks of overegging the pudding for no discernible benefit to the public.

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Queen's Counsel