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it should be made absolutely clear in the clause that before giving his consent to a prosecution under this clause, the Attorney General personally must be dissatisfied with the public servant's explanation."
And so, in a subsequent attempt to make section 10 more palatable to the critics, the draftsman inserted what is now sub-section (2) of section 10, namely:
"No prosecution for an offence under sub-section (1) shall be instituted without the consent in writing of the Attorney General, who shall, before consenting to the institution of a prosecution against a person for such an offence, inform that person that a prosecution against him for such an offence is under consideration and give him an opportunity of making representations in writing to the Attorney General."
In other words, a pre-requisite to any prosecution was to be the Attorney General's consent; but he was not to be permitted to consent simply upon reading the police file, no matter how strong the police case was. He was to be forced, no matter what the circumstances, to write a letter to the suspect giving him “an opportunity of making representations", even although, from an examination of the police evidence, it might appear to him to be practically impossible for the suspect to give a credible explanation of any sort. And so, section 10(2) was eventually put on the statute book.
From an examination of the police evidence as it stood on the morning of 4th June i.e. before GODBER'S flat was searched, it seems highly probable that, in any event, he would have been arrested on 11th June and brought before the court to give his explanation. But what may have been a matter of probability prior to 4th June, must surely have been converted to a matter of certainty after the police had had an opportunity of examining the mass of documents seized in the raid. But GODBER had committed no offence. The police were, and, so far as I know, still are, not in a position to prove that he has ever accepted a bribe. They could not, at any time prior to his departure, have charged him with an offence under sections 3 or 4 of the Ordinance. It was section 10, or nothing; and they were powerless to arrest him prior to 11th June-i.e. upon the expiry of the 7 days which he was allowed by the Attorney General's letter.
Mr. HOBLEY said to me in evidence:-
"During that week commencing on 4th June, I never felt so frustrated in my life."
I can well understand that. He could not possibly write to GODBER and say:
"I do not care what the law says, or what you may say. In the light of all the evidence now before me, I have decided that you must tell your story to the judge. So, I am cancelling my letter of 4th June, and I have told the police that, so far as I am concerned, they are at liberty to arrest you as soon as they like"!
It has been suggested that the Attorney General should have fixed some lesser period than 7 days. I do not think that there is anything in that argument. After all, the police had shown that GODBER was in possession of tremendous financial resources. If the law says that a suspect must be given an opportunity of explaining, the suspect can argue (and with a grain of reason) that the more resources one has, the more time one needs to concoct one's explanation. Tuesday 5th June was the Dragon Boat Festival. GODBER was legally represented. It was essential that Mr. GUNSTON should be given copies of all documents seized. Photostating of the documents took time; and it was not possible to give copies to Mr. GUNSTON till the afternoon of Wednesday 6th June. The word "opportunity" in section 10(2) must mean reasonable opportunity. That is the way Mr. HOBLEY interpreted the section; and I see no reason to differ from him.
I shall, in due course, be reviewing the Ordinance as a whole in accordance with my second term of reference; but I strongly recommend now that sub-section (2) of section 10, as it stands at present, be repealed. So far as I can see, it serves no useful purpose of any kind. It is no argument at all to say that wealthy, but honest, officers should not be forced to go through the ignominious experience of having to appear in court to explain their wealth or lavish way of life. A properly conducted investigation should prevent such a situation ever arising. It is very important that we should retain a provision to the effect that no prosecution be instituted without the consent of the Attorney General; but I strongly recommend that this community does not continue to tie the hands of its Attorney General, and its police force, by permitting section 10(2), in its present form, to remain on the statute book.
Turning now to the Royal Hong Kong Police Force. They were very conscious of the inhibiting effect of section 10(2). Mr. DAWSON said in evidence something to this effect:—
"I wanted to arrest GODBER as soon as there was evidence to justify this; but I regarded this 7-day period
in the Attorney General's letter as a sort of moritorium during which our hands were tied.”
Generally, the attitude of those senior police officers when testifying before the Commission might be summed up in these words:
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