PRIORITY
CYPHER CAT A
GRPS 290
FM FCO 141215Z
CONFIDENTIAL
LARI
CONFIDENTIAL
NEXT
REF.
12
(HK)
TO PRIORITY HONG KONG TELNO 172 OF 14 FEBRUARY 1974
1
MY TELNO $9 AND YOUR TELNO 139: PREVENTION OF BRIBERY ORDINANCE.
FROM STUART,
1. THE AMENDMENTS PROPOSED IN EXCO PAPER XCC(74)4 AS AMENDED BY
YOUR TEL. UNDER REFERENCE ARE ACCEPTABLE TO US AT OFFICIAL LEVEL. WE ASSUME THAT THE NEW 12(3) IS INTENDED TO REPLACE 12(3) AND 12(4)
IN THE ORIGINAL DRAFT CIRCULATED TO EXCO. WE ALSO TAKE IT THAT THE
INTENTION OF THE NEW 12(3) IS STILL TO PERMIT CONFISCATION OF THE
VALUE OF PROPERTY IN THE POSSESSION OF THIRD PARTIES, BUT BY MEANS OF ORDERS ENFORCEABLE ONLY AGAINST THE CONVICTED FERSON. THIS IS
BECAUSE THE NEW 19(2) PROVIDES THAT A CONVICTION UNDER 10 1(B)
CAN BE FOUNDED ON THIRD PARTY PROPERTY IN THE PRESCRIBED
CIRCUMSTANCES, AND THE NEW 12(3) APPEARS TO APPLY TO ALL THE PROPERTY WHICH CAN BE BROUGHT WITHIN 10 1(B) (ASSUMING THAT QUOTE ACQUISITION UNQUOTE ALSO MEANS QUOTE ACQUISITION OF CONTROL UNQUOTE).
2. IF THIS IS NOT SO AND IF YOU INTEND TO EXCLUDE NOT ONLY THE
PROPERTY OF THIRD PARTIES, BUT ALSO ALL PROPERTY IN THE POSSESSION OF THIRD PARTIES, FROM CONFISCATION ORDERS, THEN THE NEW 14(B)
WOULD APPEAR TO BE UNNECESSARY.
3. IF OUR FIRST ASSUMPTION IS CORRECT, THE AMENDMENT WOULD SEEM TO
BE LEGALLY RESPECTABLE, SINCE NO ORDER AGAINST A THIRD PARTY WOULD BE INVOLVED, BUT THERE MIGHT BE PRACTICAL DIFFICULTIES IN ENFORCING
THE JUDGMENT. A CONVICTED PERSON COULD PRESUMABLY CLAIM THAT
HE HAD NO CONTROL OVER THE FUNDS CONCERNED, ALLOW HIMSELF TO BE BANKRUPTED IN HONG KONG, AND THEN RETIRE ELSEWHERE TO SHARE IN THE
MONEY. WE TAKE IT, HOWEVER, THAT THE IMMEDIATE PRESENTATIONAL
POINT OF BEING SEEN TO TAKE WHAT ACTION IS POSSIBLE AGAINST ALL
THE FUNDS DEEMED IN THE CRIMINAL CASE TO HAVE BEEN RECEIVED CORRUPTLY, IS OVERRIDING IN HONG KONG.
CONFIDENTIAL
/. HOWEVER,