The high-powered legal team of former chief executive Donald Tsang Yam- kuen appears to be ready with a strong argument against a second retrial on a graft charge being ordered at the High Court today.
The effort has been bolstered by the involvement of white-collar crime expert Peter Duncan, who was consulted on Friday shortly after the first retrial ended with a hung jury.
That left Justice Andrew Chan Hing-wai with the task of dismissing the jury and preparing to resume today to decide on the next step.
Senior counsel Duncan defended Tsang at his first trial in January, and it is understood he has already prepared a brief and been instructed to stand by should a retrial be ordered.
But Duncan is currently involved in a manslaughter trial and will not be in the High Court today.
Legal experts see a strong possibility the Tsang case could be dropped as prosecutors are generally not given more than two attempts in pressing a charge. In this case it is one of a chief executive accepting an advantage worth HK$3.5 million.
“If a verdict cannot be reached after two trials it really says something about the quality of evidence and the nature of the charge,” said barrister Randy Shek of the Progressive Lawyers Group.
However, he added, it is not a formal rule and there could be an exception given Tsang’s status as a former top official and the gravity of the charge.
Law professor Eric Cheung Tat- ming said a second retrial would be exceptional “and require the most careful consideration by a judge.”
In any event, the defense has obviously decided not to slacken off.
“The family is very anxious about whether the prosecution will press for a third trial,” an insider said. “It’s not over yet.”
Within an hour of Friday’s action finishing, the Tsang family headed to Duncan’s chambers. To avoid intruders, the office’s main doors and lobby were secured by Tsang’s security officers from the elite G4 police unit.
Although Duncan is unable to represent Tsang today, it is understood a full-blown preparation for arguments against a re-retrial was in progress as family members left the chambers at 6.45pm.
A Department of Justice spokesman said yesterday it had still to decide whether to apply for a retrial.
In the first trial, both sides were led by queen’s counsels – senior barristers appointed on the recommendation of the Lord Chancellor in the United Kingdom. That saw David Perry for the government and Clare Montgomery for Tsang.
While Perry remained the government prosecutor in the 25-day retrial, Tsang’s team underwent a major shakeup as Montgomery was unable to defend Tsang due to her schedule.
Duncan, who was one of the ICAC’s first “in-house” barristers, was also unavailable, and Selwyn Yu, SC, was appointed to help out.
Outlays to date, Standard sister newspaper Sing Tao Daily reported, include Tsang facing a cost of at least HK$20 million.
Article originally appeared in The Standard on 5 November 2017