2000
20
Sir Leslie Monson
2.
Hong Kong Prevention of Bribery Bill
Thank you for your minutes of 17 and 20 July.
I have read with interest the Press interview with the Lord Chancellor
attached to your minute of 20 July, but it does not seem to me to be really
relevant to our problem. What the Lord Chancellor envisages is the possibility
of a change in the law that would allow the prosecution at the trial to comment
on the fact that an accused had declined to make a statement to the police or to
give evidence in court. Such comment, however, would be merely an invitation
to the jury to take the accused's silence as some corroboration of other evidence
of his guilt adduced at the trial. Clause 10 of the Hong Kong Bill goes far
beyond that. As I said in my minute to you of 16 July, what the clause in
effect does is to allow a public servant to be convicted on suspicion of
and be it noted that corruption where evidence of corruption is not obtainable
the maximum penalty that can be imposed on a person so convicted is the same as
in the case of a public servant who is actually convicted of corruption under
clause 4(2), viz. a fine of 100,000 dollars and imprisonment for seven years (clause 12(1)(a)(ii)). I remain of the opinion that clause 10 is so offensive
in principle that it ought to be omitted.
3.
G
In addition, I think that clause 10 raises certain problems for the
Attorney-General and for the Judges that might make the operation of the clause
difficult as well as exposing the accused to the risk of being judged according
to standards which, because they must be subjective, are liable to be uncertain.
The essence of an offence under clause 10 is maintaining a standard of living
higher than is commensurate with, or being in control of resources
disproportionate to, one's official emoluments. Consequently, the Attorney- General (for the purpose of deciding whether to authorise a prosecution and for
the purpose of drawing up the particulars of the offence where he does authorise a prosecution) and the court (for the purpose of deciding whether or not to
convict) will have to formulate for themselves some theoretical norm according
to which persons on particular grades of salary are to be judged. No doubt the
Attorney-General and the court would both do their best but the question of what
amounts to living above the standard that is commensurate with a particular
salary is one that can be answered only by making a subjective judgment and on
which two people might take different views without its being possible to say