J
HONG KONG LEGISLATIVE COUNCIL-21st October 1970.
137
is information that a clerk who is earning say $1,000 a month has recently bought a flat costing 300,000 and investigations carried out by the Anti-Corruption Branch do not disclose any obvious legitimate source for the amount of money involved, I will write to the public servant, asking him if he wishes to explain to me how he acquired the money. If he puts forward an explanation, this will be carefully investigated and if it then appears that he acquired the money honestly, no further proceedings will take place under clause 10. Only if he offers no explanation, or one which did not satisfy me, would a prosecution under clause 10 be undertaken. It should be noted that the effect of subclause (3) of this clause is that the duty imposed on the Attorney General under this section can be performed only by him or by the Solicitor General personally and may not be delegated to anybody else. I hope that honourable Members may feel that this provides some safeguard against any hasty, widespread or unreasonable harrying of public servants who have legitimate sources of private
money.
This clause is, I believe, an important element in this bill. It is intended to prevent the recipient of substantial bribes from avoiding successful prosecution because his gains cannot, due to the unwillingness of witnesses to testify or the difficulties of investigation, be linked to any specific corrupt transactions, as is necessary to obtain a conviction for offences under most clauses in Part II of the bill.
Clause 11, which has not been changed since the 1969 bill, is evidentiary. It states that if it is proved that a bribe is accepted by an accused, in such circumstances that he knew or suspected that it was an inducement connected with his duty, then it is no defence that he did not in fact do, or that he never meant to do or that in fact he was not able to do what he was paid for. Similarly, if a man offers a bribe to an employee to do something, it is no defence to the briber to show that the person bribed could not in fact do what he was paid for.
Clause 12 sets out the penalties for offences under Part II of the bill. These are substantially greater than those to be found in Chapter 215, under which the maximum punishment, on conviction on indict- ment, is imprisonment for 5 years and a fine of $10,000. This is, I suggest, inadequate to deal with offences which may involve very large sums of money. Clause 12 therefore imposes a general maximum penalty of a fine of $100,000 or 7 years' imprisonment for offences under Part II. Offences under clause 5 or 6, however, will carry a slightly greater punishment of 10 years' imprisonment, since they deal with public contracts and tenders. As these transactions involve huge sums it is thought that the penalty for bribery relating to them should reflect this. The maximum penalty for an offence under clause 3, however,