The Adequacy of Summing Up Directions for the Misconduct in Public Office Offence Involving Failure to Disclose a Conflict of Interest: HKSAR v Tsang Yam-kuen, Donald [2019] HKCFA 24
| DOI | 10.1177/0022018319870333 |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| Subject Matter | Case Notes |
Case Note
The Adequacy of Summing Up
Directions for the Misconduct in
Public Office Offence Involving
Failure to Disclose a Conflict
of Interest
HKSAR v Tsang Yam-kuen, Donald [2019] HKCFA 24
Keywords
Non-disclosure, misfeasance, failure to declare, government, public officials
Mr Donald Tsang, the former Chief Executive of Hong Kong and President of the Executive Council,
entered into a lease for a residential pro perty to be occupied after his retiremen t from office with
a businessman, Mr Wong. Refurbishment and redecoration were arranged for the residential property.
Mr Wong held shares in a company called Wave Media Limited, which applied for a broadcasting
licence from the government. The licence applications were dealt with by the Executive Council and
were successful. In terms of timing, the discussion concerning the lease between Mr Tsang and Mr Wong
and the arrangement for renovations happened largely at the same time when the licence applications
were made and approved.
Mr Tsang did not disclose the above to the Council, because he did not think there was an obligation
to declare (for reasons, which he argued, included that there is no need to disclose rental property, and it
was not yet rented at the time of the decision-making by the Executive Council). There was no evidence
that the applications for the licence were not properly dealt with. The grant was based on the favourable
reports given by other governmental departments, and there was no evidence suggesting any ground that
the licence should be refused.
It was alleged that the refurbishment and decoration were a bribe made to the defendant who was
subsequently charged with an offence of bribery. The defendant was further charged with the common
law offence of misconduct in public office for the failure to disclose. The defendant was convicted for
the latter offence but acquitted on the charge of bribery following a jury trial.
The elements of the misconduct in public office offence are derived from English common law. The
offence is committed where:
(1) a public official;
(2) in the course of or in relation to his public office;
(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing
to perform his duty;
(4) without reasonable excuse or justification; and
(5) where such misconduct was serious, not trivial, having regard to the responsibilities of the office
and the officeholder, the importance of the public objects which they serve and the nature and
extent of the departure from those responsibilities.
The Journal of Criminal Law
2019, Vol. 83(4) 311–314
ªThe Author(s) 2019
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DOI: 10.1177/0022018319870333
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