A A

HCCC 484/2015
B [2018] HKCFI 491 B

C IN THE HIGH COURT OF THE C

HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D

CRIMINAL CASE NO 484 OF 2015

E _________________ E

F F
BETWEEN
G HKSAR G

H H
and
I I
TSANG Yam-kuen, Donald Defendant
J J
_________________
K K

Before: Hon Andrew Chan J in Court

L L
Date of Hearing: 3 – 4, 6, 9 – 13, 16 – 20, 23 – 27 January, 1 – 2, 6 – 10,
M
14 – 17, 20, 22 February, 26 – 29 September, 3 – 4, 6, 9 – 13, 16 – 18, 20, M
23 – 27, 31 October, 1 – 3, 6 November 2017
N Date of Decision: 6 March 2018 N

O O
DECISION
P P

1. The Defendant was convicted after the first trial of one count
Q Q
of Misconduct in Public Office on 17 February 2017 and sentenced to
R 20 months’ imprisonment. The Prosecution applied for an order of one R

third of the first trial’s costs in favour of the Prosecution with a certificate
S S
for three counsel, to be taxed if not agreed.
T T

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A A

General Principle
B B

2. In support of their application, the Prosecution relied on

C C
section 12 of the Costs in Criminal Cases Ordinance (Cap 492) (“CCCO”):
D D
“12. Prosecution costs for indictable offences
E Where a defendant is convicted of an offence by or before the E
District Court or the Court of First Instance, the District Court
F and the Court of First Instance may, in addition to such sentence F
as may otherwise be passed by law, order that costs be awarded
to the prosecutor.”
G G

H
3. The CCCO deals not only with the prosecution costs for H
indictable offences but also with summary offences. Since most of the
I I
cases reported regarding prosecution costs relate to summary offences, it

J may be worthwhile firstly to look at section 11 of the CCCO which J

contains similar wording:
K K
“11. Prosecution costs in summary proceedings
L L
(1) Where—

M (a) a defendant is convicted by a magistrate or a M

magistrate makes an order on complaint in respect of
a defendant under the Magistrates Ordinance
N (Cap 227); or N

O
.... O

the magistrate may order that costs be awarded to the

P prosecutor.” P

Q Q
4. Prosecutor is given a wide definition as “any person who lays

R
an information or a complaint or institutes criminal proceedings.” in the R
CCCO. In other words, it is not confined to the Secretary for Justice but
S S
also includes public or statutory bodies, which are often given statutory

T power in enforcing their own regulations or by-laws. The obvious T

U U

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A A

examples are the Mass Transit Railway Corporation and the Tate’s Cairn
B B
Tunnel Company Limited.
C C

5. Although criminal prosecution is normally instituted by the

D D
Secretary for Justice, an individual citizen may also bring private
E prosecution if he feels aggrieved by the decision of the police or the E

Secretary for Justice in refusing to investigate or prosecute. In such

F F
circumstances, an individual citizen is likewise exercising a constitutional
G G
right, his right to assess the court.

H H
6. The CCCO gives the court a very wide discretion in awarding
I costs subject to the general principles laid down in section 15: I

J “15. General principles J

In any criminal proceedings–

K K
(a) the costs that may be awarded by virtue of an order shall
L not be punitive but shall be such sums as appear to a court or a L
judge reasonably sufficient to compensate any party to the
proceedings for any expenses properly incurred by him in the
M course of those proceedings, including any proceedings M
preliminary or incidental thereto;
N N
....

O (c) an order as to costs shall be such as a court or a judge O

considers just and reasonable;
P ....” P

Q Q
On the face of the statutory scheme, it appears that the courts are intended
R to enjoy a broad discretion to award costs, after taking into account all R

relevant circumstances, which no doubt will include the strength of the

S S
prosecution case and the conduct of the defendant. One can also discern
T from the above principles that the power to award costs includes not only T

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A A

costs incurred for the trial hearing but also any matters or proceedings
B B
preliminary or incidental to it. In that sense, given the wide definition of
C prosecutor and the provision in section 15, it seems rather clear that costs C

D
incurred by enforcement agencies during their investigation are also D
recoverable.
E E

7. In this case, information was laid by the Chief Investigator of

F F
the Independent Commission Against Corruption (ICAC). As such, any
G G
costs properly incurred by the ICAC can form part of the prosecution costs.

H
The only limitation is that it must be compensatory and not punitive in H
nature. By that I take it to mean any sum over and above that which is
I I
reasonably incurred.

J J
8. In HKSAR v Chan Kwok Wah (1999) 1 HKC 697, Chan CJHC
K K
(as he then was) held that in order to protect the constitutional right of the

L
defendants, convicted persons should only be ordered to pay the costs in L
special circumstances. Special circumstances were considered to include
M M
among others, the Defendant’s conduct throughout the trial such as putting
N the prosecution to proof of insignificant matters or undeniable facts. N

O O
9. The decision of Chan Kwok Wah was followed by Yeung J (as

P he then was) in HKSAR v Chan Kwok Hung [2000] 3 HKLRD 389. P

Yeung J expressed that:
Q Q
“.... this observation is not meant to be a strait-jacket approach
R and an element of discretion or perhaps common sense is called R
for depending on the facts of each individual case.”

S S

T T

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A A

10. Chan Kwok Wah was later approved by the Court of Appeal
B B
in HKSAR v Cheng Tak Wai (2002) 4 HKC 458, Mayo VP expressed as
C follow: C

D “What emerges from this is the necessity for it to be established D

that there is some feature of the trial indicating that as a
E consequence of the way in which the defendant conducted his E
defence unnecessary or additional expenditure has had to be
incurred by the prosecution or that the defendant has wilfully
F wasted the court’s time.” F

G G
11. In that case, the Court of Appeal seems to proceed on the basis
H that a costs order was punitive in nature without giving any reasoning. In H

giving judgment of the Court, Mayo VP said:

I I
“Notwithstanding the Judge’s view that an order for the payment
J of the prosecution’s costs was not part of the punishment J
imposed upon the applicant, it is difficult to avoid coming to the
conclusion that that was exactly what it was.”
K K

L I do not believe the mere fact a person is required to pay the prosecution L
costs can be equated with a penalty for if that be the case, there is no point
M M
in enacting section 11 or 12. However, the effect of a costs order may
N well be punitive given the fact that the defendant would inevitably be worse N

off financially.
O O

P 12. This court, of course, is bound by the decision in Cheng Tak P

Wai. Bearing in mind the compensating nature of a costs order and

Q Q
applying the principles laid down in Chan Kwok Wah, I come to the view
R that the way the Defendant conducted himself towards the investigation R

and prosecution in the present case warrants the imposition of a costs order.
S S

T T

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A A

The Conduct of the Defence Case

B B

13. After the revelation of his private trips to Macau by the media
C C
in February 2012, the Defendant made a number of public statements
D emphasising that he would fully co-operate with the ICAC in its D

investigation. In the “Beautiful Sunday” programme on 26 February

E E
2012, the Defendant, as the Chief Executive of the HKSAR, said the
F following: F

G G
“.... some people said that I have to, er, have to report to the
ICAC. I fully understand this. I will definitely and fully
H H
cooperate if it is really to be done. No contact has been made
with me yet, but I will fully cooperate to go through this so that
I everyone, everyone will calm himself down, clear of such I
worries and doubts.

J .... J

I think that there are good procedures in Hong Kong. I am very,

K K
very happy to do that because I personally think that I am, at least
I myself, in respect of law, I have not treated unfairly .... unfairly,
L and there isn’t, no exception has been made. The only problem L
is to relieve, relieve the suspicion of the general public, I am
definitely willing – willing to cooperate.”
M M
14. On 1 March 2012, the Defendant, as the Chief Executive of

N
the HKSAR, informed the Legislative Council: N

“.... Criticisms have kept emerging everyday on all fronts. I

O O
have reflected over the whole thing, trying to figure out why the
mass media, Honourable Members and the general public all find
P such accusations believable. P

....
Q Q
Honourable Members, whether you still trust me, you must never
lose confidence in Hong Kong’s system. I give you my word
R R
whether in the review of the regulatory system or the
investigation by the Independent Commission Against
S Corruption (ICAC), I shall invariably render my best possible S
co-operation.
T .... T

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A A

To date, the ICAC has not approached me for any enquiry. I

B assure Honourable Members that if it does so, I will render my B
full co-operation and will not interfere with the investigation.
C C
....

D As I said just now, I will co-operate fully with the ICAC in its D
follow-up work. .... Anyway, I have already promised
Honourable Members that I will definitely render my full
E co-operation.” E
15. Between February 2012 and June 2012, the Defendant
F F
rendered no assistance to the ICAC during the remainer of his term as the
G Chief Executive. When the Defendant was approached by the ICAC in G

October 2013, he exercised his right of silence. Despite his repeated

H H
assurance to the public as the Chief Executive that he would render full
I co-operation to the ICAC, he gave no assistance whatsoever. I

J J
16. When the ICAC was established in 1974 under the
K Independent Commission Against Corruption Ordinance, the Commission K

was known in Chinese as “總 督特 派廉 政專員公 署 ”. Its name in

L L
Chinese was not a direct translation of its name in English. The
M difference was made, in all likelihood, to impress upon the vast majority of M

the local Chinese citizens that the Commission was a trustworthy

N N
organisation which reported to no one except the Governor; the
O Commissioner was not only independent but specially appointed or O

commissioned by the Governor and citizens were asked to report

P P
corruption to the ICAC with the strict confidence that it would investigate
Q Q
their cases fairly and thoroughly.

R R
17. After the handover in 1997, although its name in Chinese has
S been changed in that it is no longer specially appointed or commissioned S

T
by the Governor or “總督特派”, the mission of the ICAC has remained the T

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A A

same. The Commissioner remains to be appointed by the Chief Executive

B B
and reports to him only. Further, Article 47 of the Basic Law demands
C the Chief Executive to be a person of integrity, namely a man of his own C

D
words, the only public official in our constitutional framework with such a D
requirement. As the Defendant said in the Legislative Council on the
E E
1 March 2012:

F “We must all appreciate that the ICAC itself has already become F
a core value of Hong Kong people. The people there always
G perform their duties faithfully.” G

H 18. Yet when it came to the Chief Executive himself being H

investigated, his attitude was far from co-operative.

I I

J 19. In the course of his various statements to the public in J

February 2012, the Defendant claimed to have leased the Shenzhen

K K
property and paid a sum of RMB800,000 to the landlord, yet he produced
L no lease or supplemental agreement or rental receipt. L

M M
20. When the ICAC approached the Defence for a copy of lease
N and relevant payment record in respect of the Shenzhen property, the N

Defence did not provide any. It was not until the ICAC had made known
O O
to the Defence that it had all the necessary power to search and seize such
P documents that the Defence decided to produce. When they were P

Q
provided to the ICAC on 26 September 2013, no explanation was given as Q
to when these documents were created.
R R

21. The Defendant was interviewed under caution by the ICAC in

S S
October 2013. He remained silent and offered no explanation concerning
T T

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A A

the property or his relationship with Mr Wong Cho Bau, Mr Albert Cheng
B B
or Mr David Li.
C C

22. The evidential value of these documents are worth nothing on

D D
their face, as they were misleading and full of contradictions and
E discrepancies. The most notable discrepancy was the amount of rent in E

words and in figures. The Defendant’s wife who was one of the
F F
signatories to the lease refused to sign and confirm her witness statement
G G
to the ICAC. It was put forward by the Defendant that spousal privilege

H
under section 6 of the Evidence Ordinance was applicable in the H
Defendant’s case. As a matter of law, section 6 applies to testimonial
I I
privilege only. Once they were produced, the Defendant did nothing to

J explain them or dispel the misleading impression created by their J

production. As a result, the ICAC had to conduct further investigation
K K
into the alleged payment of rent. It was then discovered that no rental
L payment had been made in 2012. The only payment made was back in L

2010 in the sum of RMB800,000. Again, no explanation was given as to

M M
why it was made as early as 2010. The rhetorical question one wishes to
N ask is: wouldn’t it be better to keep this sum in one’s own RMB account as N

long as possible for evidence indicated that both the exchange rate and the
O O
interest rate for RMB were on the rise in those years?
P P

23. The absence of any explanation inevitably caused the ICAC

Q Q
to probe further into the Defendant and consequentially his wife’s financial
R situation. The in-depth financial investigation uncovered the Defendant R

and his wife’s financial dealings with other people such as Mr David Li
S S
and Mr Wong Chor Biu, both shareholders of Wave Media Limited. In
T fact, it took the ICAC over two and a half years to complete all the fund T

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A A

flow investigation. Undoubtedly, the time and effort spent were huge.
B B
When it came to the first trial, the Defendant only admitted all the financial
C transactions after the formal bankers’ affirmations, had been served as C

D
additional evidence. The authenticity of all the banks statements and D
financial transactions were never challenged during the first trial. In
E E
reality, they were all undeniable facts.

F F
24. In front of the media outside the Eastern Magistrates’ Court
G G
on 5 October 2015, the Defendant stated that in the past three and half years

H
he had rendered full co-operation to the investigation of the ICAC. That H
seems to be very far from the truth.
I I

J
25. As a result, an enormous amount of time and manpower had J
been put into the investigation unnecessarily on undeniable facts. As
K K
pointed out by the Prosecution, the present application is not based on the

L
fact that the Defendant chose to exercise his right of silence as he is entitled L
to, rather, it is based on the totally unnecessary costs which the taxpayer
M M
had to pay.
N N
26. Apart from the financial transactions, the corporate structure
O O
of the Shenzhen East Pacific Group Limited was also not admitted. In

P particular, the Defendant refused to admit that Mr Wong Chor Bau was the P
Managing Director of Shenzhen East Pacific Group Limited. This was
Q Q
despite the Defendant’s assertion in the Beautiful Sunday programme that
R he had been in discussion with Mr Wong Chor Bau in 2010, and that R

Mr Wong Chor Bau had mentioned to the Defendant the club house at East
S S
Pacific Garden and explained his plan to renovate it.
T T

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A A

27. In addition, the Defendant also refused to admit the fact that
B B
the announcement was issued by the Shenzhen East Pacific Group Limited
C on various newspapers. Following argument and ruling on the subject, C

D
the Prosecution informed the court that it was in the process of obtaining D
evidence to link the announcement with the Shenzhen East Pacific Group
E E
Limited. Search warrants were obtained and executed on 9 and

F
11 January 2017 against Sing Tao News, Lane Fung Advertising and Public F
Relation Limited and Link Work Communications (HK) Limited. It was
G G
not until then that the Defendant finally agreed. These were, in my view,
H insignificant matters that the Prosecution were required to prove. H

I I
28. Prior to the first trial, the Defendant also indicated to the court

J that an application in relation to count 2 under section 16 of the Criminal J

Procedure Ordinance would be made. It proceeded on the basis that there
K K
was no evidence disclosed in the committal papers which established the
L necessary duty to disclose, or not to conceal, matters in the Executive L

Council meetings and that none of the Codes of Conduct contained in the
M M
committal papers were applicable to the Chief Executive. Although the
N application was subsequently withdrawn, it resurfaced in another N

application to exclude. This court rejected the defence argument as to the

O O
exclusion the Code for Principal Officials of under the Accountability
P System and Civil Service Bureau Circulars. They were clearly relevant. P

Q Q
29. Given the above, I am of the view that there are special
R circumstances in this case that warrant the imposition of the costs order R

against the Defendant. Enquiry has been made to ascertain the total costs
S S
of the prosecution case and the Defendant’s ability to pay. The total
T prosecution costs for the first trial was estimated to be in the region of T

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A A

HK$15 million. The Defendant has a substantial amount of cash in his

B B
bank accounts and has been receiving pension payments after his
C retirement as the Chief Secretary. In summary, the Defendant is in a C

D
position to pay the costs. As such, it is ordered that the Defendant pays D
one third of the total prosecution costs in respect of his first trial, to be
E E
taxed if not agreed, with certificate for three counsel.

F F
Discharge of Juror in Second Trial
G G
30. In the second trial, application was made by the Prosecution
H to discharge Mr Kiu, a juror from the jury service towards the end of the H

proceedings. After listening carefully to submissions from both sides, I

I I
allowed the application and indicated that I would give my full reasons.
J J
These are my reasons.

K K
31. In the course of my summing up, the court was informed by
L the Prosecution that Mr Kiu during the lunch adjournment, was seen to L

M
approach one of the Defendant’s supporters, Mr To Kit (陶傑), a popular M

columnist and radio presenter for conversation and photograph, who had
N N
publicly supported the Defendant in these proceedings. The court was
O further informed that Mr To Kit expressed on social media antipathy O

towards the Prosecution and also to a degree to the Judiciary and that he
P P
had made clear his views about the merits of the case.
Q Q

32. On the day in question, Mr To Kit was brought into court by

R R
one public relations representative, unlike ordinary citizens who had to
S queue up for seats. He then sat in an area exclusively reserved for the S

Defendant’s family and friends. In fact, this was not the first time Mr To
T T
Kit had come to court.
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A A

33. Following the procedure in the investigation of any alleged

B B
misconduct of juror as set out in the English Criminal Practice Direction,
C Mr Kiu frankly admitted before the court that he was a follower of Mr To C

D
Kit’s radio show and that he had been listening to his programme for many D
years. However, Mr Kiu told us that his conversations with Mr To Kit
E E
were confined only to casual matters. Given the late stage of the

F
proceedings, the Prosecution applied to the court to exercise its discretion F
to discharge Mr Kiu only on the basis that there was a potential bias.
G G

H
34. The House of Lord in Porter v Magill [2002] 2 AC 357 H
considered the question of bias in relation to the court generally and
I I
approved the test. In the case of potential bias, the court should consider

J whether a fair minded and informed observer could conclude that there was J
a real possibility, or real danger (the two being the same), that the tribunal
K K
was biased. This test was applied by the Court of Appeal in R v Poole
L [2002] 1 WLR 1528. In Szeypusz v UK [2010] ECHR 1323, the L

European Court of Human Rights said that the impartiality of a jury must
M M
be subjectively and objectively beyond doubt.
N N

35. Mr To Kit expressed his view on social media regarding the

O O
prosecution of the Defendant (which counsel for the Defendant had made
P no attempt to deny). Mr Kiu sought out a known supporter of the P

Defendant. As such, Mr Kiu was a supporter of the Defendant’s

Q Q
supporter. In my view, the seeking out of Mr To Kit raised a real
R possibility that Mr Kiu could not be fair minded in the way that he R

approached the case.

S S

T T

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A A

36. The discharge of Mr Kiu led me at that stage to realise, for the
B B
first time, that public relations firm or consultant had been involved in this
C trial. In fact, they had been present, constantly in and out of court, C

D
throughout the first and the second trial but I was not aware of their D
identities at the time as every citizen was entitled to observe the
E E
proceedings.

F F
37. At the outset of the second trial, there was legal argument on
G G
whether the Defendant was entitled to adduce good character evidence.

H
Such evidence was elicited in the first trial through the cross-examination H
of witnesses called by the Prosecution, for example his former Cabinet
I I
Secretaries during their cross-examination by counsel for the Defendant.

J They spoke highly of the Defendant and I had no problem with that as that J
was the Defendant’s entitlement in his first trial. He had a good
K K
reputation then and more importantly he was presumed innocent until
L proven guilty. However, the situation changed. Since the Defendant L

had been convicted, albeit of one count only, he was no longer entitled to
M M
have any good character direction from the court. Had the Defendant
N decided to introduce good character evidence, the Prosecution would be N

entitled to introduce evidence in rebuttal. The law on this is clear.

O O
Mr Selwyn Yu SC, counsel for the Defendant in the second trial, quite
P rightly accepted that that was the law and that no such evidence would be P

adduced on behalf of the Defendant.

Q Q

R 38. Family and friends of any defendant in a criminal trial are R

perfectly entitled to be present in court to observe the proceedings and to

S S
show their support. What is not permitted is for family and friends, or for
T that matter any other person, to try and exert any influence on the jury. T

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A A

Jury tampering is not permitted because it undermines the basic foundation

B B
of our criminal justice system as that interferes with the due administration
C of public justice. C

D D
39. Prior to both the first and second trials, the Defendant through
E his solicitors sought approval from the court to reserve exclusive seats for E

his family and friends. His request was acceded to by the court.
F F
Throughout the second trial, especially towards the end, former colleagues
G G
of the Defendant, for example, his former Financial Secretary and former

H
Secretary for Justice, past Legislative Councillors from the Democratic H
Party, present Legislative Councillors from the Democratic Alliance for the
I I
Betterment and Progress of Hong Kong and prominent religious figures,

J were taken into the court on different days by the public relations firm or J
consultant sitting at the exclusive area, similar to Mr To Kit’s situation.
K K
The objective was undoubtedly to inform and impress upon the jury that
L the Defendant was a good person and had support from people across the L

whole spectrum of the society.

M M

N 40. The Defendant in this case, knowing that good character N

evidence cannot be introduced from witnesses testifying for the

O O
prosecution, had decided to introduce such evidence through the back door.
P There was of course no direct evidence suggesting the public relations firm P

or consultant had been engaged by the Defendant himself, the inference

Q Q
however was overwhelming and it would be an affront to common sense
R to conclude that there was not some consent, acquiescence or involvement R

by the Defendant. Had the engagement of public relations firm or

S S
consultant been brought to my attention earlier, I might consider
T discharging the entire jury. T

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A A

41. In England, there are specific provisions in the Criminal

B B
Justice Act 2003 which allows judge only trial on indictment where there
C is a danger of jury tampering. In Hong Kong, no equivalent provisions C

D
exist in our statute books, it may be high time for giving serious D
consideration to that. There is however nothing to prohibit the case from
E E
being transferred to the District Court for trial.

F F
42. The present scenario is not much different from any case
G G
where a defendant has asked his friends or followers, whom not knowing

H
the underlying reasons, to come to court, wearing black clothing and sitting H
in the public gallery, with the objective of intimidating either the witness
I I
or the jury. In such a situation, the court will have no hesitation in

J excluding all these people. Having said that, I wish to emphasise that J
there is no allegation against any persons who were brought into the court
K K
by the public relations firm or consultant and for that matter Mr To Kit.
L L
43. It came therefore with no surprise that in recent years, when
M M
the wealthy and powerful were charged for criminal offences, they tried all
N kinds of means and ways to list their cases in the High Court before a jury. N

The involvement of public relations firm or consultant in our criminal

O O
proceedings is not only undesirable but may perceive as seeking to
P influence the jury. It does nothing good to the rule of law in Hong Kong. P

This serves as a warning to all public relations firm or consultant.

Q Q

R R

S S
(Andrew Chan)
Judge of the Court of First Instance
T T
High Court

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A A

Mr David Perry QC, Mr Eric Kwok SC, Ms Maggie Wong, Counsel on fiat,
B B
Ms Alice Chan SADPP and Ms Irene Fan SPP of the Department of
Justice, for HKSAR
C C

Mr Selwyn Yu SC, Mr Derek CL Chan, instructed by King & Wood

D Mallesons, for the Defendant D

E E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

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V V