HKSAR v. Tsang Yam Kuen Donald
Court of First Instance
Andrew Chan J
3–4, 6, 9–13, 16–20, 23–27 January, 1– 2, 6–10, 14–17, 20, 22 February, 26–29 September, 3–4, 6, 9– 13, 16–18, 20, 23–27, 31 October, 1–3, 6 November 2017, 6 March 2018

Criminal law and procedure — jury — discharge of juror — juror sought out celebrity-public supporter of defendant who had expressed antipathy towards prosecution and views on merits of case on social media — real possibility of potential bias — observations on undesirability of involvement of public relations firms or consultants — might be perceived as seeking to influence jury

Criminal law and procedure — costs — defendant convicted — whether special circumstances warranted imposition of costs order against defendant

D, the former Chief Executive of the HKSAR, was convicted after his first trial of one count of misconduct in public office. D claimed to have leased property in Shenzhen for payment of a particular sum but did not provide any lease or supplemental agreement or rental receipts until after he was informed that the Independent Commission Against Corruption (ICAC) had the necessary powers to search and seize such documents. When they were produced, D offered no explanation as to when they were created or why there was a discrepancy as to the amount of rent. As a result, the ICAC spent two and a half years investigating various financial dealings and fund flows, the authenticity of which D never challenged at trial, and the corporate structure of the property developer. The prosecution applied for an order for part of the costs of the first trial against D, not because D chose to exercise his right to remain silent, but because of the totally unnecessary costs taxpayers had to pay. Towards the late stages of D’s second trial on a charge of accepting an advantage from an agent, the prosecution applied to discharge J, one of the jurors, from jury service on the basis of potential bias. During an adjournment, J approached X, a popular columnist and radio presenter, for conversation and photographs. X, who publicly supported D in the criminal proceedings and sat in an area reserved exclusively for D’s family and friends (the Exclusive Area), expressed on social media antipathy towards the prosecution and the Judiciary and made clear his views about the merits of the case. J admitted he had been a follower of X’s radio programme for many years but that their conversation was merely casual.

Held, allowing the applications, that:

  • There were special circumstances that warranted the imposition of the costs order against D. D did not render full cooperation to the ICAC, as a result of which an enormous amount of time and manpower was used in the investigation of unnecessary and undeniable facts. The total prosecution costs of the first trial were estimated at $15 million and as D had substantial amounts of cash in his bank accounts and had been receiving pension payments after his retirement as Chief Secretary of the HKSAR, he would be ordered to pay one third of the total costs (HKSAR v Chan Kwok Wah (1999) 1 HKC 697, HKSAR v Chan Kwok Hung [2000] 3 HKLRD 389, HKSAR v Cheng Tak Wai [2002] 4 HKC 458 applied). (See paras.8–29.)
  • The impartiality of a jury must be subjectively and objectively beyond doubt. The test for potential bias was whether a fair-minded and informed observer could conclude that there was a real possibility or danger that the court or tribunal was biased. Here, J sought out a known supporter of D, who also expressed his views on social media regarding D’s prosecution. This meant J was X’s supporter and raised the real possibility that he could not be impartial in the way he approached the case (Porter v Magill [2002] 2 AC 357, Szypusz v United Kingdom [2010] ECHR 1323 applied). (See paras.34–35.)
  • (Obiter) J’s discharge led the Court to realise that a public relations firm or consultant had been involved throughout the trial, by taking various prominent public figures to sit in the Exclusive Area. Had this been brought to the Court’s attention earlier, it might have considered discharging the entire jury. Family and friends of a defendant in a criminal trial were perfectly entitled to be present in court to observe the proceedings and to show their support, but they or any other person were not permitted to try and exert any influence on the jury. Jury tampering undermined the basic foundation of our criminal justice system in that it interfered with the due administration of public justice. The involvement of public relations firms or consultants in criminal proceedings was not only undesirable but might be perceived as seeking to influence the jury. (See paras.36–43.)

Applications

These were applications by the prosecution for an order for costs against the defendant and for the discharge of a juror on the basis of potential bias. The facts are set out in the judgment.

Jurisdictions: 

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