found that, in a number of cases, money is given to a relative or nominee to be held in trust for him. One particular case file I examined illustrates this point. All the evidence pointed to the fact that the officer's family was relatively impecunious. He had no known sources of income other than his salary and that of his wife. He joined a Government Department in a relatively junior capacity in 1967. His salary was about $1,600 per month; his wife earned $100 per month. Within a matter of 2 years or so, his wife, his mistress and his mother, between them, has amassed a fortune of $357,730.27. One may well ask: where did this money come from? As usual, not one of those members of the public who, it was suspected, had bribed the officer would come forward with evidence to support charges under sections 3 or 4(2) of the Ordinance. The officer denied all knowledge of how his relatives and mistress had come by their wealth. The mother told the police a cock- and-bull story about having made $200,000 "smuggling" during the Japanese occupation; that she had kept this huge sum of money in cash in a box under her bed for over 20 years, and had then decided to invest it in the purchase of flats, etc.!
124. No court would have believed such a story. But that would not have taken a prosecution under section 10 any further. The point was: since there was not a scrap of evidence to connect the officer himself with this fortune the Attorney General could not have consented to a prosecution under section 10. Indeed, he was not asked to do so. The Target Committee agreed entirely with the police that no further action was possible as the law now stands.
125. If, however, there had been a provision in section 10 comparable to that in section 21(2), which would have enabled the court to presume (until the contrary was shown) that the officer himself was in control of his relatives' wealth, a charge under section 10 could have been laid against him. The relatives would have had to give evidence on behalf of the officer; and it would then have been a straight issue of fact. If the court had disbelieved the story about "smuggling" and keeping $200,000 “in an old sock", so to speak, for over 20 years, the effect of that would have been that the officer would have failed to displace the statutory presumption; and he would have been found guilty.
126. Therefore, I strongly recommend that consideration be given to the enactment in section 10 of a provi- sion comparable to section 21(2). The presumption should cover not only pecuniary resources and property in the name of:
"a person who (having regard to his relationship to the accused or to any other circumstances) there is reason to believe is or was holding such resources or property, or obtained such accretion, in trust for, or otherwise on behalf of, the accused, or as a gift from the accused."
If possible, the presumption should cover the maintenance of a standard of living by the officer's near relatives or a mistress or girl friend, not commensurate with the officer's emoluments. After all, he is ordinarily "the bread- winner" in the family. But, if, despite the fact that his wife and other near relatives have no known sources of income, they are nevertheless able to purchase expensive motor cars, entertain lavishly at expensive hotels, go for holidays abroad, send their children to expensive schools in Europe or America, and so on [the wife, or the mother, etc. doing all the paying, of course] the whole object of section 10 is defeated.
Section 12
127. Under section 12(1), upon conviction of a person in respect of an offence under Part II, other than an offence under section 3, the court, in addition to the other penalties prescribed, is required to order the accused to pay the amount or value of any “advantage" received by him. This relates to offences under sections 4 to 9. Unexplained wealth under section 10 could not be said to be an “advantage". In other words, under the law as it how stands, a Crown servant may retain all his ill-gotten gains, although he has been found guilty of an offence under section 3 or section 10. In my view, this is most unsatisfactory; and I recommend that the most careful consideration be given to revising the penalties at present prescribed by section 12.
128. In their 6th report dated 29th December 1961, the Advisory Committee on Corruption recommended the enactment of a provision on the lines of what is now section 10(1). The view they took was that such an offence is much more serious than any other offence in the former Cap. 215. They said:-
"The punishment on conviction of being in possession of the proceeds of corrupt transactions must be drastic... and in our opinion should be of the order of a fine of $100,000 and seven years im- prisonment. Even such a punishment provides very little deterrent to a man who may have obtained over a million dollars through corrupt practices; but it is not possible to increase this penalty without putting it out of proportion to penalties for other offences."
That was said at a time when the maximum penalty for offences under sections 3 and 4 of the former Cap. 215 was $10,000 and five years imprisonment [in those days it was 7 years in the case of improper conduct in relation to public contracts]. In fact the general penalty for offences under Cap. 201 (other than sections 5 and 6) is
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