HONG KONG
LEGAL REPORT
Enclosure No. 2
THE PREVENTION OF BRIBERY (AMENDMENT) ORDINANCE 1974.
(No. 9 of 1974)
2.
This Ordinance has two main purposes.
Firstly, it gives effect to recommendations made by Sir Alastair Blair-Kerr in his Second Report for changes in the law relating to corruption.
3. Section 3 introduces a rebuttable presumption, the effect of which is that in specified circumstances a Court should in proceedings against a person for an offence under section 10(1)(b) of the Prevention of Bribery Ordinance regard pecuniary resources or property in the hands of another person as being in the control of the accused. The Court will be required to have regard to the closeness of the relationship between the other person and the accused and to other circumstances. Mere closeness of relationship will not raise the presumption.
4.
Section 4 increases the maximum penalty which may be imposed on conviction of an offence against section 10 of the Prevention of Bribery Ordinance so that it is the same as the maximum penalty on conviction of bribery. It also confers on the Courts power to forfeit to the Crown monies not exceeding the amount or value of any advantage received by a convicted Crown servant or of any resources or property the acquisition of which a Crown servant has not explained satisfactorily.
5. The new sections 14A to 14E of the principal Ordinance, introduced by section 7, are related to the power of forfeiture. Their object is to prevent a suspect or an accused person from disposing of his assets or removing them from Hong Kong while the investigation is being carried out or pending the determination of criminal proceedings. The provisions are flexible and either the Commissioner or the District Court, as the case may be, will be able to authorise dealings with property, on such terms as may be appropriate, if for example it seems proper to do so in order to avoid loss.
6. The amendment made by section 5(a) to section 13 of the principal Ordinance relaxes to some extent the test which must be satisfied before an authorisation may be given under that section. It is the section under which, among other things, bank accounts may be inspected. The former test was such that it might frustrate a proper investigation and the new test, which requires the Commissioner to be satisfied that an offence under the Ordinance has been committed, is considered more realistic in the context of corruption.