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CONFIDENTIAL
a standard of living or the control of resources disproportionate
to his official emoluments. If he fails or refuses to do so, he
can be convicted of an offence.
possession is therefore on him.
The onus of proof of innocent
This can be explained in the
circumstances of Hong Kong where corruption is widespread and
notorious, and even the civil service are not exempt, but where it
is still extremely difficult to get anyone to give direct evidence
of bribery. However, it does depart to some extent from a
fundamental principle of English law, that it is the duty of the
prosecution to prove the case against the accused. The Hong Kong
provision has never yet been questioned in Parliament.
It might
be criticised on grounds of general legal principle; but,
particularly after the Godber episode, it should be defensible
in the context of the colony's problem of corruption.
9.
Given the existence of Section 10, it is obviously
undesirable that a corrupt public officer should be able to avoid
its operation by putting the property in the name, for example, of
a close relative. It was therefore considered that the extension
of Section 10 as now proposed was appropriate.
10.
A second important proposal, in Section 4(c) of the amending
Ordinance, is that property which has led to a conviction under
Section 10 should be liable to forfeit. Again this is logical,
but we said that we could not agree to extend such forfeiture
provisions to property in the possession of third persons not
parties to the case. The Governor agreed (Hong Kong telegram no.130)
and the relevant provision of the amending bill was changed
accordingly.
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/11.