Associations and from the Secretary of State) to relax and simplify these Colonial Regulations with a view to dealing with staff on a more master/servant basis. What members of the public see is a number of corrupt officers retained in the public service. They conclude that Government is unwilling to bring them to trial, unwilling to dismiss them, unwilling to retire them compulsorily; and the public concludes that Government connives at, indeed approves of, corruption in the public service. Anyone who knows how the Hong Kong courts, and Government disciplinary procedures operate, also knows that Government does not deserve to be criticised in this way. But the attitude of the public is perfectly understandable.
118. It appears from Mr. Law's report on his visit to Singapore in 1968 that the Singapore authorities never take a corruption case before the courts unless the evidence is such that they feel absolutely certain that there will be a conviction. I think that the Singapore approach is sound. On the other hand, the Hong Kong public feel that corrupt officers should be punished by the courts whenever possible, although there is also universal agreement that if court action is impossible, and that disciplinary proceedings with a view to dismissal is also impracticable, then Government should have the power, in appropriate cases, to retire officers com- pulsorily, irrespective of their age.
119. However, to return to the Ordinance. It is, of course, desirable that persons who are alleged to be corrupt should be tried and, if found guilty, punished by the courts; and in my view the Ordinance should be amended in a number of respects in order to facilitate investigation and lighten the burden of proof which ordinarily lies upon the prosecution. The amendments which I have in mind will no doubt result in protests from certain members of the legal profession who may find it more difficult to defend, and obtain the acquittal of, persons charged with corruption. But such protests should be put into proper perspective. It is the old story of balancing the interests of the accused with the interests of society. It is certainly in the interests of persons charged with bribery and corruption that they be acquitted. It cannot be in the public interest that an unduly large number of guilty men should go scot free; and, in my view, none of the amendments which I am about to recommend for the consideration of the legislature, infringe basic human rights under the law.
Section 10
Suggested amendments to the Ordinance
120. As this section stands at the moment, it is only if the prosecution can show that the Crown servant himself is maintaining a standard of living not commensurate with his official emoluments, or if he is in control of pecuniary resources or property disproportionate to those emoluments, that the suspect may be called upon to give an explanation to the court. In 1971, the legislature recognized that, in a great many cases, it was simply impossible to get witnesses to come forward and say that they gave the Crown servant a bribe and it was decided that, in appropriate cases, the onus should shift to the accused to satisfy the court that he came by his wealth honestly. But, the fundamental reason for an enactment of this kind is the fact that in Hong Kong witnesses, for the most part, simply refuse to give evidence in support of charges laid under sections 4(2), 5(2) and other sections creating offences of a similar nature in Part II of the Ordinance. In other words the rationale for section 10 is that the unexplained wealth was obtained by the accused by corruption.
121. Indeed, this is evident from section 21(1). That section says that in cases where the accused is charged with accepting a bribe and a witness testifies that he paid money to the accused, and the court is looking for corroboration of that fact, it may accept as corroboration any evidence which the prosecution may bring to the effect that, at about the time of the alleged offence, the accused was in possession, for which he cannot satisfac- It is a torily account, of pecuniary resources or property disproportionate to his known sources of income. rather strange provision in that all the elements necessary to establish an offence under section 10(1)(b) are given probative value in proceedings where the object is to establish a bribery charge under another section of Part II of the Ordinance. The legislature clearly had in mind a situation in which the prosecution could prove that the officer had a great deal of money but it might only be able to lay a bribery charge which involved a comparatively small sum. The charge sheet need not contain a charge under section 10 as well as the charge under another section in Part II of the Ordinance.
122. It is not only evidence of the accused's excessive, and unexplained, pecuniary resources which may be tendered for purposes of corroboration. Under section 21(2), an accused is presumed to be in possession of excessive resources where any person whom, having regard to his relationship to the accused or to any other circumstances, is believed to be holding resources on behalf of the accused, or as a gift from the accused. In other words, on a prosecution for an offence under, say, section 4(2), the prosecution is not only entitled to tender evidence that the accused himself is in control of excessive pecuniary resources. It may tender evidence that the wife or mother of the accused has suddenly acquired great wealth in some unexplained way.
123. The enactment of section 21(2) showed, if I may say so, a true appreciation of the criminal mind. A corrupt officer seldom leaves his ill-gotten gains in his own bank account. The Anti-Corruption Office has
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