CONFIDENTIAL
(2529)
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NICK 141
1973
Elag
(45) 0(46 1kk14/18
(1970)
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6
under the new Section 12. The former question was considered by
Mr Royle at an office meeting in October (see para. 3 of Mr Youde's
minute of 16 October 1973). The problem sprang from the Law
Officers' refusal to endorse the original Section 10
(Mr Hetherington's letter of 23 September 1970), which meant that
FCO Ministers would have to defend the clause on political grounds.
At his meeting Mr Royle decided that, having agreed to the original
provision, it would be illogical to frustrate its purpose by
allowing the accused to avoid all risk by putting the property in
the name of his close relatives. He therefore agreed to the
extension.
5.
(of fortiture)
On the latter question, the Blair-Kerr report made much of
the point that the accused should not be allowed after his sentence
was complete, to enjoy his ill gotten gains. We agreed. But the
extension of this principle to property in the possession of third
parties has caused trouble. The amendments to Section 12 endorsed
by ExCo, appeared to make the third party liable. We objected
(FCO telno. 89) and the Governor has come back with a new version
(Hong Kon, telno. 130). This makes the convicted person liable
for the value of the property etc. which he is deemed to have
deposited with third parties. This is legally more respectable,
but probably will not work in practice, since unless the convicted
person has still further property which the law can lay its hands on,
there will be no way of enforcing the judgment against a third party.
Nevertheless, since the purpose of the provision is at least partly
presentational, I think we can let it go.
CONFIDENTIAL
16.