HONG KONG LEGISLATIVE COUNCIL
21st October 1970.
135
a basis for the general permission under clause 3 which will be issued by the Governor, probably in the form of circulars. Until a circular is issued, the bill will not be brought into force. Apart from the circular, giving permission in general terms, it will always be open to a Crown servant to seek the special permission of the Governor, as represented by the Head of his Department, to receive any advantage if he is doubtful about the propriety of so doing. I should like to re- assure Crown servants, who may well be anxious lest clause 3 should unduly restrict either their social or their official lives, that it is intended that the terms of the circular will be such as to permit the acceptance of any advantage which is of a personal or social nature, unconnected with official duties. The Government does not wish to interfere with innocent private activities, or with modest entertainment in some connexion with official position, but with the conferring or receipt of advantages when these are related in an improper way to a Crown servant's official position.
Clause 4(1) makes it an offence for a person to offer a bribe to a public servant in connexion with the latter's official duties, whereas clause 4(2) is aimed at the other party to the corrupt transaction, namely the public servant who accepts the bribe. The difference between clause 4 and clause 3 is that the essence of an offence under clause 3 is the receipt by a Crown servant of an advantage, other than a permitted one, irrespective of the motive with which he receives it. However, to constitute an offence under clause 4, there must be evidence not only of the giving or receiving of a bribe, but also that the bribe was given or received with a corrupt motive, that is to say, as a reward or an inducement to a public servant to do, or abstain from doing, something connected with his official duties.
Clauses 5, 6 and 7, which deal respectively with bribery in relation to public contracts, tenders and auctions, are unchanged from the 1969 bill, except that a defence of lawful authority or reasonable excuse is provided, though such a defence to these kinds of offence is not often likely to succeed.
Clause 8 of the 1969 bill prohibited the offering of an advantage to a public servant employed by a public body with which the offerer was currently having dealings. However, the objection was raised that, so far as the Government is concerned, a person's dealings with it are necessarily through a particular department and that the clause in its earlier form would have prohibited advantages being offered by a person who has dealings with one Government department, to any Govern- ment officer in whatever department the officer works. The clause has, therefore, been narrowed so as to limit its application to cases where the government servant, to whom the advantage is offered, works in that branch of the Government with which the offerer is having dealings at the time.