HKSAR v. Tsang Yam Kuen, Donald

HCCC 484/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 484 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant was found guilty by the jury of one count of misconduct in public office. Between 2010 and 2012, while the defendant was acting as the Chief Executive of the Hong Kong Special Administrative Region and President of the Executive Council, he deliberately concealed his dealings and negotiations with Mr Wong Cho-bau, a major shareholder of Wave Media Limited, in respect of a property situated at East Pacific Garden, Shenzhen, when the defendant was involved in considering and making decisions in relation to three applications made by Wave Media.

It is clear from the verdict that the jury rejected any suggestion that it was simply an oversight on the part of the defendant.

Given the fact that there is going to be a retrial on Count 1, I do not think it is appropriate for me to go into details of the evidence.

The maximum sentence for the offence is one of 7 years’ imprisonment. There is no guideline in sentencing. In terms of sentences imposed by the court in the past, broadly speaking, they can be divided into two categories. The first category is the more serious one involving the element of corruption. The sentences imposed are normally towards the top end of the bracket and treated almost the same as corruption, ie, in the range of 5 to 7 years’ imprisonment. In the other category, the sentences imposed vary from imprisonment, Community Service Order to financial penalty, depending on the circumstances of each case.

In sentencing the defendant, I accept that it is the second category that I need to consider. Having said that, it does not mean that the offence is trivial for the jury was satisfied that the departure from the defendant’s responsibilities in this case warranted a conviction.

In the present case, the seriousness lies in the position the defendant occupied, the office of the Chief Executive. As the Chief Executive, the defendant was the head of the region and was accountable to not only the people of Hong Kong but also to the Central People’s Government. It is a trust placed on him by the People of Hong Kong and the people of China. Furthermore, the Chief Executive must be a person of integrity, the only person in the Basic Law where such a requirement is specifically stipulated. The breach of trust is an important and significant aspect of the defendant’s criminality in this case.

In the present case, the decisions that the defendant made at the Executive Council meetings were important ones, in particular, allocating spectrum of radio wave to broadcasting licence applicants, affecting all walks of life in Hong Kong.

The Court of Final Appeal in HKSAR v Ho Hung Kwan Michael [2013] Vol 16 HKCFAR 525, pointed out that the offence of misconduct in public office was aimed at punishing an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position. In other words, punishment and deterrence form the core components in sentencing.

In HKSAR v Hui Rafael Junior & Others, HCCC 99/2013, the 1st defendant, Mr Rafael Hui, being the Chief Secretary for Administration, after a discount of 9 months given for his good character, was sentenced to 18 months for his misconduct in concealing certain loans taken out from the subsidiary of Sun Hung Kai Property.

Having considered all of the above, I am of the view that the proper starting point in this case should be one of 30 months’ imprisonment.

Former colleagues, friends and, most importantly, family asked this court for leniency. I understand their request. However, it is my duty as a judge to act according to the verdict of the jury and to pass the appropriate sentence according to the law. To the outside world, sentencing appears to be an easy task. To most judges, it is the most difficult part of their jobs. This case is of no exception. Never in my judicial career have I seen a man fallen from so high.

However, it is indisputable that the defendant had dedicated himself to public service for the past 40-odd years. Letters from his former colleagues and those who had worked with him in the Legislative Council and the Executive Council all speak with one voice; that is his commitment in serving the people of Hong Kong.

Among his major contributions, one matter stands out. That is his effort in overcoming the 1998 financial crisis. Another matter that is worth mentioning, and I hope is not disputed, is the fact that the granting of the broadcasting licence had gone through the established due process and met with little opposition at every level. Had it been different, the gravity of the offence would have been significantly increased. I say no more on this matter.

Having considered all the circumstances, a reduction of 10 months will be given in respect of the defendant’s good character and his past contribution to Hong Kong. I do not see any justification in suspending the 20 months’ sentence.

In conclusion, for the offence the defendant stands convicted, he is sentenced to 20 months’ imprisonment.