A former head of the Hong Kong Law Society has said it was rare for the prosecution to ask for legal costs from former chief executive Donald Tsang, after juries twice failed to convict him of accepting an advantage.
On Monday, the prosecution said that it would not seek another retrial unless the court gave directions as such. The charge sheets were archived at the court.
Lawyer Stephen Hung said it was not uncommon to archive the files, but a better way would be to retract the charges, so that Tsang would not stand trial over the matter again.
Hung said on a RTHK programme on Tuesday that it was unlikely there will be a retrial, unless new evidence – which could not be considered previously – emerges. The requirements for a retrial, however, will be very strict.
He said two different juries both failed to convict Tsang, having failed to reach a majority decision. He said it showed that the evidence in the case must have been problematic: “If [the evidence] is clear, he would have been proven guilty or not guilty.”
The prosecution told the court that Tsang and his wife were not cooperative when he was investigated, and it asked for a third of the legal fees – estimated to be HK$7 million.
Hung said the defendant had the right to silence: “Unless the prosecution can prove that the defendant did something to… unreasonably make the trial longer than it should, then maybe the prosecution could ask the defence for part of the legal fees.”
Hung said it could be reasonable, for instance, if the defence had called witnesses in order to waste time in court, but this did not occur in the Tsang case.
“But usually, the prosecution should not ask for legal fees from defendants who was not proven guilty. This is not a very good act, I have my reservations” he said, adding that he believed the court would consider the request neutrally.
Tsang, 73, was charged with the crime of “accepting an advantage” as chief executive, contrary to section 4 of the Prevention of Bribery Ordinance. The charges concerned unpaid renovations at a penthouse in East Pacific Garden, Shenzhen between 2010 and 2012, when he was Hong Kong’s leader.
In February, the jury convicted him of misconduct in public office for failing to disclose his plans to lease a luxury flat. The flat’s owner was a major investor in a broadcaster, which was later granted a licence from the government on Tsang’s watch.
He was unanimously acquitted of another misconduct charge concerning an allegation that he failed to declare that an architect he proposed for a government award was employed as an interior designer on the apartment.