I should be grateful if Sir Arthur would re- consider this objection
that either view was unreasonable.
It does not seem to me right that the
question whether a person is guilty or innocent of a criminal offence should depend
upon so uncertain a test. In discussion with Mr. Roberts on 23 July I pointed
out the difficulty of deciding what standard of living was commensurate with
a particular salary; he took the point and said that for that reason it would
probably only be possible for the Attorney-General to authorise a prosecution in,
as he put it, a blatant case. This does not, of course, entirely answer the
objection that an accused's guilt or innocence is going to depend upon a rather
uncertain test. A similar difficulty arises, though possibly in a less acute
form, if the charge is one of being in control of resources disproportionate to
one's official emoluments, for an officer who is thrifty or clever at investing
his savings will build up more capital than a colleague on the same salary who
is not.
4.
Paragraph 12(b) and (c) of Mr. Laird's submission of 7 July mention two
further objections to clause 10 that have been raised by legal advisers. The
first is that an accused person is entitled to know what he must prove to secure
his acquittal but that, under clause 10, he will not be sure what explanation a
court will regard as satisfactory. This criticism has some validity but it
would have to be developed more fully if it were to be used in argument with the
Governor and I should be grateful if Sir Arthur Grattan-Bellew would consider
this. The second objection questions whether it would be right for a person, in
order to defend himself against a charge under clause 10, to be forced to admit the commission of some other criminal offence./with a view to stating more particularly why a person who has obtained funds by committing an offence (say theft or fraud) should be regarded as having a legitimate grievance if he can
escape conviction under clause 10 only by confessing to the other offence.
Though the case is not exactly the same, it seems to me that persons on trial
must from time to time find themselves in this position, e.g. a man who wishes
to establish an alibi but is unable to do so except by proving that he was
elsewhere committing another offence at the relevant time.
5. I sounded Mr. Roberts on the suggestion that clause 10 might be replaced by
a clause on the lines of section 17 of the Malaysia Prevention of Corruption
Act 1961. He thought that, if offered quick approval of the Bill with that
substitution, the Government of Hong Kong might agree on condition that, the
Bill having become law, they could come back to us and ask us to approve the reinsertion of clause 10 if experience showed that it was required.
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