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CACC 55/2017
[2018] HKCA 425
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 55 OF 2017
(ON APPEAL FROM HCCC NO 484 OF 2015)
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| BETWEEN |
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HKSAR |
Respondent |
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and |
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Tsang Yam-kuen, Donald (曾蔭權) |
Applicant |
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| Before: Hon Yeung VP, Macrae VP and Pang JA in Court |
| Dates of Hearing: 25 & 26 April 2018 |
| Date of Judgment: 20 July 2018 |
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J U D G M E N T
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Hon Macrae VP:
Introduction
1. The applicant served the Hong Kong Government in various positions between 1967 and 2005. He was appointed Chief Secretary for Administration from 1 May 2001 to 10 March 2005 when, following the resignation of Mr Tung Chee-hwa as Chief Executive of the Hong Kong Special Administrative Region (“the HKSAR”) on 10 March 2005, he assumed the duties of Acting Chief Executive. He was formally appointed Chief Executive for the remainder of Mr Tung’s second term of office from 21 June 2005 to 30 June 2007.
2. On 25 March 2007, the applicant was elected Chief Executive of the HKSAR with effect from 1 July 2007 until 30 June 2012, with the State Council of the People’s Republic of China issuing a notice on 2 April 2007 confirming his appointment. As Chief Executive of the HKSAR, the applicant was also ex officio President of the Executive Council.
3. The applicant was tried on an indictment alleging one count of Accepting an advantage as Chief Executive, contrary to section 4(2B)(a) and 12 of the Prevention of Bribery Ordinance, Cap 201 (Count 1), and two counts of Misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Counts 2 and 3) before Andrew Chan J (“the judge”) and a jury. On 17 February 2017, after a trial lasting 29 days, the applicant was convicted on Count 2 and acquitted on Count 3. The jury were unable to reach a verdict on Count 1 and were, accordingly, discharged from returning a verdict on that count. A re‑trial on Count 1 was ordered. On 22 February 2017, the applicant was sentenced to 20 months’ imprisonment in respect of Count 2.
4. On 9 March 2017, the applicant filed a Notice of application for leave to appeal against both conviction and sentence (in respect of Count 2). On 24 April 2017, he was granted bail pending appeal, and pending the re‑trial of Count 1, by Yeung VP.
5. The re‑trial on Count 1 (lasting 25 days) took place in September 2017 before the same judge, sitting again with a jury. The new jury were similarly unable to reach a verdict on Count 1, which was then ordered to be left on the Court file marked not to be proceeded with, without the leave of the Court.
6. On 6 March 2018, the judge made an order for costs against the applicant, ordering him to pay one‑third of the total prosecution costs in respect of the original trial (to be taxed if not agreed) (“the Costs Order”)[1]. In so doing, the judge considered the conduct of the defence at the original trial and made comments concerning the applicant’s conduct at the re‑trial.
7. On 27 March 2018, the applicant also filed a Notice of Appeal in respect of the Costs Order made against him. The applications for leave to appeal against conviction and sentence and against the Costs Order were accordingly directed to be heard together at the same hearing. Following the hearing on 25 and 26 April 2018, we reserved judgment on the appeal. This is the Court’s decision in respect of the appeals against conviction and sentence.
8. I have read the reasons for allowing the applicant’s separate appeal against the Costs Order prepared by Yeung VP and agree with those reasons. It will be convenient, however, if we give our decision in respect of the applications for leave to appeal against conviction and sentence first, followed by our decision in respect of the Costs Order.
The background to the offence
9. In late 2009, the HKSAR government decided to introduce a policy framework for the development of digital audio broadcasting (“DAB”) services in Hong Kong, pursuant to which it invited, via a Press Release issued on 11 February 2010[2], the submission of applications for sound broadcasting licences.
10. On 29 and 30 April 2010, the Broadcasting Authority (“BA”)[3] received a total of four applications in response, one of which was submitted by Wave Media Limited (“WML”)[4], a company of which a prominent mainland businessman, Mr Wong Cho‑bau (“Wong”), was the director and major shareholder[5]. The other shareholders of WML included Mr Ronald Arculli (a member of the Executive Council), Mr Albert Cheng Jinghan, Mr Arthur Li Kwok-cheung (“Mr Arthur Li”) and Mr David Li Kwok-po (“Mr David Li”).
11. In late 2010, WML also applied to the BA to surrender an earlier sound broadcasting licence[6] it had been granted, since it was unable to discharge the licensee’s obligations[7]. Between July and November 2011, a further application was made for Mr Arthur Li, a disqualified person under the Telecommunications Ordinance, Cap 106 to exercise control of Digital Broadcasting Corporation (“DBC”), which WML had been re‑named on 30 November 2010[8], as its director and Chairman.
12. The applications of WML and DBC were ultimately approved by the applicant. Unknown to the Executive Council, or the public, the applicant was at the relevant times making arrangements to live in an apartment in Shenzhen owned and refurbished by Shenzhen East Pacific (Holdings) Limited, of which Wong was the Chairman and General Manager (“the transaction”).
13. It was against this factual background that Count 2 arose.
The indictment
14. The particulars averred in Count 2 were in the following terms:
“Tsang Yam-kuen, Donald, being the holder of a public office, namely the Chief Executive of the Hong Kong Special Administrative Region and President of the Executive Council (“ExCo”), between the 1st day of January 2010 and the 30th day of June 2012, in the course of or in relation to his public office, without reasonable excuse or justification, wilfully misconducted himself by failing to declare or disclose to, or by concealing from, the ExCo his dealings and negotiations with Wong Cho‑bau, the major shareholder of Wave Media Limited (“WML”) in respect of a three-storey residential property situated at East Pacific Garden, Futian, Shenzhen when he, in his capacity as the Chief Executive and President of ExCo, was involved in decision making in relation to applications made by WML (subsequently renamed Digital Broadcasting Corporation Hong Kong Limited (“DBC”)) for:
(a) A sound broadcasting licence for the provision of digital audio broadcasting services submitted to the Commerce and Economic Development Bureau (“CEDB”) in April 2010;
(b) The surrender of a sound broadcasting licence for the provision of Amplitude Modulation radio services submitted to the CEDB in September 2010;
(c) Permission for Li Kwok‑cheung, Arthur to exercise control of DBC as a director and chairman of the board of the company.”
For the sake of convenience, the above property in Shenzhen will hereinafter be referred to as “the property”; while the three applications in respect of (a) the DAB licence, (b) the surrendering of the Amplitude Modulation (“AM”) licence and (c) permitting Mr Arthur Li to exercise control of DBC will be referred to, as in the respective particulars of the count, individually, as “Application (a)”, “Application (b)” or “Application (c)” or, collectively, as “the three applications”.
15. In light of the arguments presented before this Court, it is necessary to say something about the allegation by the prosecution in respect of Count 1, on which the jury failed to agree and were subsequently discharged. It was alleged by this count that the applicant had, without lawful authority or reasonable excuse, accepted an advantage in the form of the refurbishment and re‑decoration of the property (of which he was ultimately to become the tenant), as an inducement to or reward for considering and making decisions in relation to the three applications. It was the prosecution case that the estimated refurbishment and redecoration costs of the property amounted to some HK$3.5 million[9]; while the interior design fee was HK$350,000[10]. Accordingly, the allegation was that the applicant had received a bribe of some HK$3.85 million.
The facts relevant to Count 2
16. During his tenure as Chief Executive[11], the applicant had made a total of 69 ad hoc declarations of interest at 46 meetings of the Executive Council[12], 23 of which meetings took place during the period of the offence (the first being 2 March 2010, the last being 5 June 2012)[13]. In those 23 meetings, whilst declaring various other interests, the applicant neither declared nor disclosed the transaction, nor did he refer to his relationship with Wong.
17. In early 2010 (the exact date was unknown[14]), the applicant was in discussion with Wong regarding the renting of the property. It was asserted by the applicant for the first time during his appearance as a guest on the Beautiful Sunday radio programme of 26 February 2012 that a rental amount of RMB800,000 per annum had been agreed with Wong[15].
18. On 30 April 2010, WML applied to the BA for a DAB licence[16]. On 2 November 2010, the HKSAR Government announced that the applicant had given his approval in principle for Application (a)[17].
19. On 9 December 2009, the applicant endorsed an internal minute headed “Declarations of interest – ExCo meeting on 15 December 2009”[18] and thereby agreed that Mr Arculli, another shareholder of WML[19], be...
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