Argument
CONFIDENTIAL
Clause 10
10.
This clause makes the unexplained possession of property by any
public servant a criminal offence, although no prosecution can be
instituted without the consent in writing of the Attorney-General who
is required, before instituting proceedings, to give any person against whom prosecution is under consideration an opportunity of making
representations in writing.
11.
TheGovernor attaches particular importance to the retention of
this clause and he so informed Mr. Michael Stewart when he visited
Hong Kong as Secretary of State in April. He considers it to be an essential part of the Bill, both because it constitutes a valuable
deterrent and because its existence is avidence of a determination to
tackle corruption vigorously. He argues that corruption in Hong Kong is a considerable problem, that severe measures are required to deal
with it, that the existing Public Service disciplinary provisions are
inadequate and cannot in any case be applied to the employees of public utility companies (who are included in the definition of "public servant" for the purposes of the Bill), that the clause has been
generally accepted by the public and that the Bill containing it has been approved by his Executive Council.
12. The department's legal advisers are opposed to the retention of
the clause. They feel strongly that the unexplained possession of
wealth should not be made a criminal offence but should be dealt with
under disciplinary regulations. Their objections to the clause are
also based on the following considerations:-
(a)
Although under Clause 10 the prosecution would first have to
show that the accused had been maintaining a high standard
of living or possessed property disproportionate to his
financial emoluments, the accused could then be convicted if
he remained silent, even though there was no evidence of
his having committed any act of a criminal nature.
(b) If the burden of proof is to be placed on the accused in this
manner, he is entitled to know what he must prove to secure
his acquittal. But the clause does not state what test the court is to apply in deciding whether an explanation is
satisfactory.
CONFIDENT IAL
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