Donald Tsang's Lawyer Questions Jury Instructions

A lawyer for the former Chief Executive Donald Tsang has argued before an appeals court that it is only a crime if an accused knows he or she should make a disclosure, but doesn't because the accused is dishonest or corrupt.

Tsang was jailed last year for 20 months for concealing a property deal with businessman Bill Wong from the Executive Council. At the time, the council was considering whether to grant a digital radio licence to one of Wong's companies.

Opening the arguments to allow a leave of appeal, Tsang's lawyer, Queen's Counsel Clare Montgomery, told the Court of Appeal court the trial judge should have directed the jury that misconduct requires not only a deliberate action, but also the knowledge that someone is breaching their duty and an awareness of the consequences of doing so.

Montgomery also said the jury should have been told that a conviction for misconduct would only be suitable if the offence was so serious that it amounted to an abuse of public trust.

She argued that in Tsang's case the jurors were unable to reach a decision on whether the property deal amounted to corruption or a transfer of benefits and they should therefore have been given further direction, so they could consider whether the non-disclosure had any impact on Exco discussions and whether this had harmed the public interest.

Responding for the director of public prosecutions, Queen's Counsel David Perry, said these arguments were wholly detached from the reality of the case that was put before the trial jury.

He said the jury had found Tsang deliberately concealed information from the Executive Council. He said Mr Tsang was "hopelessly compromised" by his dealings, and this raised serious questions about his integrity. He said there was no reasonable excuse or justification for what he did.

He said the non-disclosure was deliberate and obviously a breach of duty, highlighting that Tsang had multiple opportunities to reveal the dealings with Exco over a 15-month period.

The hearing is expected to last two days before a decision is reached on whether the former CE will be granted leave to appeal.

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