There can be no doubt whatsoever that but for the fact that the Attorney General was compelled to comply with the provisions of section 10(2) of the Prevention of Bribery Ordinance, GODBER would have been arrested on 4th June, immediately after the raid on his flat. So far as I am aware, this is the first occasion the section was invoked. The police found it most confusing; and as I am, in this report, recommending that it be repealed forth- with, it may not be out of place for me to say a word or two about how it ever came to be enacted in the first place.
There is no provision equivalent to section 10 in the law of England, nor, for that matter, in the laws of Ceylon, Singapore or Malaysia. It was enacted in Hong Kong because experience had shown that it was extremely difficult to obtain convictions in the courts on ordinary corruption charges. And that is perhaps understandable. A corrupt bargain involves two persons—the “giver” and the “receiver". The receiver is usually the public servant; and, normally, efforts are made to bring him to justice. But to obtain a conviction, the prosecution must satisfy the court beyond reasonable doubt that the person accused is guilty.
Even if the "giver” is willing to testify (which is seldom) he is usually a satisfied party and, consequently, an unwilling witness. But worse. In the process of giving, he too commits a criminal offence. He is what is known to lawyers as "an accomplice”. No matter how one legislates for a situation of this kind, the normal human being (he be juryman or judge) of necessity views with suspicion the tainted evidence of a man who, for all the court knows, may be buying his immunity (or at least believes that he may be doing so) in consideration of his advancing the prosecution case against his accomplice. A clever defence lawyer can usually make a prosecution witness of this class look rather silly.
Of course, the prosecution may adopt other means of bringing offenders to justice, such as adducing evidence of police traps, marked money, statements by the accused in the nature of a confession (another favourite field for attack by defence lawyers), and so on. But, experience has shown that, for one reason or another, it is very difficult in Hong Kong to bring home guilt to a corrupt Government servant.
The history of what is now section 10 of the Ordinance goes back many years. I remember in the early 1950's, it was suggested that, as regards a Government servant, proof of the fact that he was maintaining an unduly high standard of living or that he was in control of excessive pecuniary resources, should be sufficient for him to be called upon for an explanation. In those days, no one was brave enough to suggest that a provision of that sort should be written into the criminal law. But it was agreed that it should be made a disciplinary offence which, if proved, could result in dismissal from the public service with loss of pension rights. And so, Establishment Regula- tion 444 was introduced in much the same form as it is today.
Broadly, that regulation says that when it appears to the Governor that any officer is maintaining a standard of living above that which is commensurate with his official emoluments, or is in control of pecuniary resources in excess of those emoluments, he may be called upon for an explanation; and if that explanation fails to satisfy the Governor, then a Tribunal is appointed to inquire into the matter; and the Tribunal then reports to the Governor.
In 1968, a Working Party was set up to consider amendments to the then Prevention of Corruption Ordinance Cap. 215; and this Working Party recommended that a new criminal offence on the lines of Establishment Regula- tion 444 be created. It was to run like this:-
"(1) Any public servant who is or has been-
(a) maintaining a standard of living above that which is commensurate with his official emolu-
ments; or
(b) in control of pecuniary resources or property disproportionate to his official emoluments, shall be guilty of an offence.
(2) It shall be a defence to a charge under sub-section (1) if the accused gives a satisfactory explanation as to how he is or has been able to maintain such a standard of living or how such pecuniary resources or property came under his control.”
It was agreed that there should be a new Ordinance; and the draftsman of what is now the Prevention of Bribery Ordinance Cap. 201 began his labours. In his first draft, he prepared a provision which was basically what was recommended above by the Working Party. This met with a certain amount of mild opposition locally; but that was nothing to what emanated from the Legal Advisers to the Secretary of State who were quite unable to see why the law of Hong Kong should be made to differ from the law of England as regards corruption. One argument was that there may be many Chinese civil servants who come from well-to-do families and whose standard of living reflects (and perfectly legitimately) the financial standing of the family rather than their own salaries. It was argued that there may be many reasons why an officer would not wish to explain in public how he had acquired, or had access to, means other than his official emoluments, although he might have no objection to giving an explanation to the head of his department. A local critic came up with this suggestion. He said:-
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