Below is the full text of a mitigation letter written by former secretary for justice, Wong Yan-lung, for former chief executive Donald Tsang Yam-kuen, submitted at High Court on Monday.
I have known Mr Donald Tsang since 2005. As Secretary for Justice (SJ), I worked closely with Donald as Chief Executive (CE) between October 2005 and June 2012. In addition to official dealings, I consider Donald to be a good friend and someone I admire for his dedication to public service.
Donald's over 40 years of service and contribution to Hong Kong is a matter of public record. Others will speak to his key role in helping Hong Kong weather through stormy financial crises. Here I would refer to his significant contributions to the public based on my own personal experience particularly in the area of the rule of law in Hong Kong.
During my 7-year tenure as SJ, I had on numerous occasions tendered legal advice to Donald as CE. He would sometimes debate with me and test the basis of the advice; but he has never acted against such legal advice. This in itself is a remarkable attribute as the head of the HKSAR.
Donald always said to me the Governors he previously worked with, however headstrong, would always abide by the legal advice of the Attorney General, and it is important that the CE of the HKSAR should stay that way.
One of the most important tasks, if not the most important task, of the CE of HKSAR is to faithfully and effectively implement the principle of "one country, two systems." The power of the Standing Committee of the National People's Congress (NPCSC) to interpret the Basic Law and its exercise have always been considered a major challenge to the post-1997 constitutional order.
During my tenure as SJ, the NPCSC interpreted the Basic Law once in 2011. That was upon the reference by the Court of Final Appeal (CFA) on the question of state immunity. The issue in the case is whether the People's Republic of China’s doctrine of absolute immunity (under which no foreign state can be sued in the court at all) should be followed in Hong Kong. Prior to 1997, Hong Kong’s common law provided for restrictive immunity, where foreign states could be sued if the dispute arouse out of commercial transactions.
The HKSAR Government lost in the Court of First Instance and in the Court of Appeal. If the Government were to lose again in the CFA, it could stir up serious political and economic repercussions for China particularly vis-à-vis her African friends. National interest of China was at stake. The Ministry of Foreign Affairs was understandably very concerned.
Immense political pressure mounted. There were suggestions that Beijing should not take any risk but should consider taking more definitive measures such as an interpretation of the Basic Law before the appeal was heard. If that were to happen, on the eve of the appeal hearing, the damage to judicial independence would not be less than an overriding post-judgment interpretation.
I cannot go into further details for confidentiality reasons. However, I can testify that Donald has been solid and staunch in endorsing my stance against any extra-judicial measure in view of its adverse impact on the rule of law.
Owing in no small part to Donald's endorsement and resolve, the Central People's Government (CPG) was content to trust the HKSAR Government and the CFA, and to leave the appeal to be heard by the highest court, despite grave risk and many conflicting views given by others. At the end, the Government won in the CFA by a majority of 3 to 2. The Court further referred the relevant Basic Law provisions to Beijing for interpretation, as required under Article 158 of the Basic Law, before pronouncing the final judgment. A huge constitutional crisis was warded off. The rule of law had prevailed.
Over this difficult episode, I know Donald had been under tremendous pressure. I remember often times he suffered from acute acid reflux before and major discussions. Yet he stood firm throughout.
As CE, Donald had faithfully discharged the indispensable trust reposed by both the CPG and by Hong Kong. He had the courage to stand by what he believes to be right and the ability to address mutual concerns and to strengthen mutual understanding. He had performed well the crucial bridging role in the two-way process under "one country, two systems" at critical times.
There was another important event in which Donald's principled stance had been vital in achieving a favourable result for Hong Kong: constitutional reform.
Although no change could be made of the imminent 2017 CE election method due to the set-backs in 2016, during Donald's tenure as CE, he has been made significant contributions toward moving Hong Kong closer to universal suffrage.
The first landmark was achieved, with tremendous efforts by the core team under Donald's lead, when the NPCSC delivered its decision in December 2007 setting out "the timetable" and "road map" for universal suffrage in terms of the elections of CE and Legco.
Second, in 2010, the Government managed to secure Legco's support to pass the 2012 constitutional reform package. Here, Donald had played a pivotal role, one perhaps not many are aware of.
Whether the 2012 reform package could be passed in 2010 was crucial to ensure "gradual and orderly progress" and that the next round (i.e. the intended goals of universal suffrage in electing CE in 2017) could be achieved.
In June 2010, the original government proposal was losing support and hope was vanishing for it to be passed at Legco. Time was running out. Whether to modify the package by incorporating a proposal of the Democratic Party (i.e. the additional 5 District Council Functional Constituency seats to be elected by over 3 million electorate, "the new DCFC election method") appeared to be the lynchpin.
Without going into details again for confidentiality reasons, I can again testify that the make-or-break moment was when Donald made the timely and difficult decision to revise the package by incorporating the new DCFC election method. It was an agonizing decision for him as he had to override certain internal opposition and to risk personal credibility and trust before the CPG. As an insider, I know that decision was not a political manoeuvre but a selfless act for the sake of the long-term wellbeing of Hong Kong and the smooth transition toward universal suffrage.
Son of Hong Kong
Donald is truly a "son of Hong Kong" (香港仔). His genuine concern for the public good is most vividly demonstrated when Hong Kong was caught in crises of one kind of another.
Hong Kong went through attacks of avian flu and swine flu. Donald tirelessly headed the cross-bureau task forces and chaired long and intensive meetings. I remember more than once Donald being caught in very heated debates with colleagues, pushing them to the limit to mobilize maximum resources and manpower, in order to give the public maximum protection against these outbreaks. He would grill colleagues over thorny issues such as requisitioning hotels as places of quarantine, not satisfied with the usual civil service response of reluctance, as lives of many were at stake.
Over the Manila hostage incident in August 2010, Donald vigorously pressed the President of the Philippines for full investigation, joining the victims' families and the rest of Hong Kong to cry for justice, although his action raised eyebrows as foreign affairs strictly is a matter of the CPG under Article 13 of the Basic Law.
Donald had a strong concern for young people. During my tenure, exceptionally I was commissioned to chair a Steering Committee to combat drug abuse by youth. The public might not realize this initiative in fact came from Donald. He was deeply concerned and alarmed by the reports reflecting the seriousness of the problem. He was determined to tackle the problem pro-actively. The Steering Committee was unprecedented, involving concerted and strategic efforts of different departments and bureaus. More importantly, Donald was instrumental in putting in substantial and sustainable resources to strengthen the efforts. The figures of reported drug abusers, particularly among young abusers, have seen significant decline in the past few years.
Other contributions on the rule of law
There was no shortage of controversial cases involving judicial reviews and fundamental human rights. Amidst other voices and political pressure, Donald had fully taken on board the legal position that the Government has a positive duty to protect such rights, including taking reasonable and appropriate measures to enable lawful demonstrations to take place peacefully.
Further, Donald also readily took on my advice regarding procedural fairness in handling Government businesses with quasi-judicial element such as administrative appeals.
Donald truly believes in judicial independence. He assured me repeatedly the independent and internationally renowned Judiciary in the HKSAR is our pride and the cornerstone of our success. His personal commitment to this cause is manifested in his positive response in acceding to many recommendations of the Mason Report endorsed by the Standing Committee on Judicial Salaries and Conditions of Service.
Furthermore, his conviction on the importance of the law as Hong Kong's assets was amply manifested in his exceptional support in the development of Hong Kong's capacity as an international arbitration centre. Donald was very understanding on the need of expansion on this front and had put in personal efforts to make it happen. He was instrumental in enabling resources are in place to secure additional space for the Hong Kong International Arbitration Centre, and to procure the arbitration arm of the International Chamber of Commerce and the China International Economic and Trade Arbitration Commission to set up regional offices in Hong Kong.
A fair man who has given much to the public
Before joining the Government, I was an Election Committee member of the Legal Subsector elected on the same ticket as Ms Audrey Eu, Mr Alan Leong and other vocal barristers. In that capacity, in 2005, I first met Donald in an election forum where I questioned him harshly and criticised the Government's earlier attitude over certain rule of law issues. Instead of bearing any grudge, in the late summer of 2005, Donald invited me to take up the post as SJ, assuring me that he would give me full support in upholding the rule of law in Hong Kong. That quality of fairness in Donald and that personal assurance to me have never slackened in the following 7 years in which I served in his cabinet.
As CE of the HKSAR, Donald had truly poured himself out. I strongly believe his significant contributions to Hong Kong in the past over 4 decades should be properly recognized.