Letters | Eight ways for Hong Kong to make sure no innocent suffers as Donald Tsang has

Hong Kong’s justice system must find a way to defend the wrongfully accused without bankrupting them

Hong Kong courts

Letters

Published: 8:00am, 3 Jul 2019

Why you can trust SCMP

I refer to “Donald Tsang is cleared of criminal misconduct after long fight” (June 27). We are grateful to the Court of Final Appeal for upholding the integrity of our legal system. Sending a retired Hong Kong chief executive to prison for a year for a crime he never committed cannot be taken lightly. It would forever be a black mark on all involved in the decision-making process. Are there some fundamental problems that have been highlighted by this very unusual case?

First, catch-all provisions. A criminal prosecution should be based on verifiable facts. But there is always a catch-all provision almost in every statute, very general and open to personal interpretation, to facilitate the work of public prosecutors. The misconduct charge against Tsang was a catch-all provision open to interpretation.

Second, common law> The Court of Final Appeal overturned the judgment by reference to one simple principle of common law, mens rea or criminal intent – wilful or not. How could a person commit a crime without any proof of criminal intent, criminal acts or criminal gain? Tsang apologised openly and sincerely for his oversight. Ordinary people had a lot of doubts about this high-profile “corruption case”. Why was the benefit of doubt not given to the accused, in line with the spirit of common law?

Third, red flags. Not everyone has the means, like Tsang, to appeal to the Court of Final Appeal. How many innocent people have been caught by the catch-all provisions of our laws? Whenever such a provision is used, it should in future be seen as a red flag. Criminal intent, criminal acts and criminal gain must be proven before the case proceeds to the courts, with the benefit of doubt always given to the accused.

The statue of Justice in front of the Court of Final Appeal in Central. Photo: EPA-EFE

Fourth, costs. court cases are time-consuming and very costly. Tsang’s case took seven years; Stephen Chan Chi-wan’s lasted six. Each case cost the innocent party his life savings. However, it costs nothing for the civil servants who approve the prosecution, no matter the result. Public interest would call for better staff training and a review of the internal system for the vetting of cases before their submission to the courts.

Fifth, inflated demand. The courts are flooded with cases. How much of the demand is real and how much is inflated – when it costs nothing for civil servants to proceed with a prosecution, win or lose?

Sixth, the benefit of the doubt. Whenever there are doubts, the benefit should be given to the accused. Marginal cases should never be brought to the courts.

Seventh, international image. Our legal system is one of Hong Kong’s most valuable assets. Sending innocent people, a retired chief executive included, to prison does not bode well for the image and reputation of the legal system of Hong Kong.

Eighth, audit report. The auditor general would be doing our legal system a great service by conducting a process-and-cost review for court proceedings.

Over a million people have marched on the streets to protect our legal system from possible external infringement. Let Donald Tsang be the last innocent person in the history of Hong Kong to spend a year in prison for a crime that he did not commit.

T.S. Chow, Central

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