Double standard in Donald Tsang case and the rule of law

March 10, 2017 15:59
From Government House to Stanley Prison, former chief executive Donald Tsang's fall from grace has evoked much sympathy. Tsang has made a formal appeal against his conviction. Photo: Reuters

The furor over the high-profile cases of former chief executive Donald Tsang and the seven police officers bodes ill for the rule of law in Hong Kong.

The former top leader and the law enforcers were found guilty and convicted of custodial terms.

It’s a personal tragedy for Tsang, after 45 years of laudable public service.

His former boss Chris Patten once gave him a thumbs up for his competence as a public servant, and his former subordinate Carrie Lam hailed him as “a role model” during his trial.

Tsang must be given the credit for concretizing “one country, two systems” to the fullest possible extent, a meritorious track record that comes way above that of either his predecessor or successor.

The slew of key infrastructure projects launched during his tenure is a testimony to his capabilities as an administrator and commitment as a public official.

His seven-year mandate, the longest among all the post-1997 leaders, notwithstanding, his dignity was robbed in a trial that nailed him to the cross.

Corrupt Tsang?

Tsang’s final year in office was haunted by misfortune, as the Independent Commission Against Corruption started looking into his alleged acceptance of bribes.

The investigation that lasted three years and eight months, along with the recommendation from the Department of Justice, led to his prosecution on two counts of misconduct in public office in October 2015.

Later on, a further charge, acceptance of advantages in office, was laid against him during the third hearing.

It’s fair to say that since then Tsang hadn’t had one single moment of peace amid the media muckraking and the lengthy legal back-and-forth.

His serious lack of sensitivity and failure to declare interest at the very end of his tenure have obviously changed how Hongkongers think about him: he is sleazy and greedy, even for some “petty advantages”.

Many now call him “corrupt Tsang”, an accusation without any solid evidence, a label that came out of people’s lopsided perception that can be so far from the truth.

The jury failed to reach a consensus on the third charge, acceptance of advantages, and cleared him of one count of misconduct.

To some observers, the prosecutors appeared to be nitpicking, and it’s worth pointing out that the only conviction so far has nothing to do with graft or corruption.

So exactly how “corrupt” is Tsang?

What about CY Leung?

The grand celebrations to mark the 20th anniversary of the handover on July 1 is less than four months away, and what a rousing occasion it would be if all former and present leaders of the SAR could appear on the same stage raising glasses in a toast to the prosperity of the city.

But that is highly unlikely to come to pass, unless Tsang is acquitted and subsequently cleared of all the ignominy.

In the Tsang trial, one can’t help but notice the subtle nuances of the rule of law in the colonial era and that after 1997.

The British philosophy of governance is that having the power doesn’t mean it’s always appropriate to use it to the fullest, but the prevailing Chinese ideology is quite the opposite.

Rather than being publicly disgraced, Tsang might have been subjected to some internal disciplinary action if the matter of his failure to disclose an interest was in the hands of colonial era prosecutors, as his decades-long service in office would have merited certain discretion or leniency.

Having spent a couple of years for a marathon investigation and a large chunk of public funds, the Department of Justice, clearly at the behest of the incumbent leader Leung Chun-ying, could only convict Tsang for one out of the three charges it brought against him at the High Court.

Tsang’s heavy penalty of 20 months reminds me of the 1998 Sally Aw case.

The Beijing-friendly owner of the English newspaper The Standard would have been convicted for a circulation fraud had it not been for the then secretary for justice Elsie Leung’s last-minute U-turn to drop the charge.

The justice chief defended her decision, citing “public interests”, despite a huge uproar from the legal sector.

What I see in the government’s handling of the two cases is double standard.

With the unbecoming outcome of Tsang’s trial, I wonder if the very essence of the rule of law, of giving the accused the benefit of the doubt, and the use of discretion to determine the appropriate penalty for individual cases, is gone.

Now that Tsang is behind the bars for some seemingly trivial misconduct, will the ICAC and the Department of Justice open a case to investigate whether Leung has declared his receipt, after assuming office, of HK$50 million from Australian firm UGL?

Can the government convince Hongkongers that everyone is genuinely equal before the law when prosecuting one person while leaving another at large?

Last month, police officers staged a rare, organized protest against the judiciary, after seven of their colleagues were sentenced to two years for assault, sending across a scary message that instead of enforcing the laws they may choose to undermine them.

Now, Tsang’s conviction and the thinly-veiled double standard behind it have given us more reasons to worry about the state of being of Hong Kong’s rule of law.

This article is an excerpt of two separate columns that appeared in the Hong Kong Economic Journal on Feb. 28 and March 9.

Translation by Frank Chen

[Chinese version 1, 2 中文版]

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A famous Hong Kong writer; founder of the Hong Kong Economic Journal