The police felt frustrated and inhibited. To them the information in their possession was quite sufficient to make it "appear" to the Director that there was reasonable cause to believe etc. After a delay of some months, the Director decided to act on the powers conferred on him by section 17. The warrant was executed; and a mass of incriminating documents were in fact discovered.
157 It appears that the reason why the Assistant to the Attorney General refused to act under section 17(1) was that he took the view that the Director, or A.G. "must have some specific document or thing in mind” before signing a search warrant and that the section did not “allow a general fishing expedition".
158. I agree that powers of search should not be used for the purpose of a general fishing expedition. But there is a world of difference between a general fishing expedition based on nothing and a genuine belief that there are in the premises to be searched documents of some sort which contain evidence of the commission of an offence under the Ordinance. It appears that what troubled the Assistant to the Attorney General was the word "is" in the 4th line of section 17(1) and because he took the view that the Director should be able to say that in the premises there were specific documents capable of being described with precision, he did not think it proper to sign a warrant.
159. With the greatest respect, it seems to me that this is taking a very narrow view of the section, and that the legislature never intended that the Anti-Corruption Office and the Attorney General should act with such extreme caution.
160. The whole thing is most unsatisfactory. Firstly, if the legislature considers that the Director may, without reference to the Attorney General, execute a warrant of this nature, then the section should be amended by the delection of all reference to the Attorney General. Secondly, section 17, like section 13, is a most important investigatory section; and it seems to be utterly wrong that the hands of the police should be tied, and a successful prosecution stifled at birth, so to speak. The Director is not a junior officer. He is a responsible police officer of Assistant Commissioner rank; and the public are entitled to expect that he will act with care and discretion. I see no reason at all why the section should not read:
"If it appears to the Director that in any place... there may be any document or thing containing any
evidence of the commission of an offence under this Ordinance, he may, by warrant" etc.
Section 26
161. As in the case of section 14(1), this section as it now stands, is rather superfluous. A court always has had the power to comment on the failure of an accused person to give evidence, although, in a number of cases, appeals have been allowed because the Court of Appeal considered that the judge went too far and that he may have given the jury the impression that there was some sort of burden on the accused to prove his innocence.
162. Section 26, as originally drafted, gave the prosecution the power to comment on the failure of an accused to give evidence, a power which they never had at Common Law; and that appears to have been the reason why it was drafted in the first place. The only logical reason for leaving the section as it is now is that it might possibly be argued that the words "notwithstanding any law or practice to the contrary" are intended to abrogate the effect of the various Court of Appeal decisions on the subject, and that, so far as bribery trials are concerned, the judge can express himself in any way he likes.
163. I do not think that was the intention.
Apparently, the section was simply left in, despite the fact that it had lost all its purpose as a result of the amendment.
164. I recommend that it be restored to its original form, that is to say that, in bribery cases, both the pros- ecution and the court may comment on the failure of the accused to give evidence "notwithstanding any law or practice to the contrary". This accords in every way with the views of the Criminal Law Revision Committee. Paragraph 110 of their 11th Report, which was published in June 1972, reads in part:-
"In our opinion the present law and practice are much too favourable to the defence. We are convinced that, when a prima facie case has been made against the accused, it should be regarded as incumbent on him to give evidence in all ordinary cases. We have no doubt that the prosecution should be entitled, like the judge, to comment on his failure to do so.”
165. But I go further. The Criminal Law Revision Committee say (paragraph 111):-
"Similar considerations in our view apply to corroboration. At present the failure of the accused to give evidence is not allowed to be treated as corroboration. We disagree with this rule. It seems to us clearly right that, when the prosecution have adduced sufficient evidence of a fact to be considered by the jury or magistrate's court, the failure of the accused to give evidence denying the fact should be capable of corroborating the evidence of it.”
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