GRS 783A
PRIORITY
CYPHER CAT 'A'
FM FCO 241255Z
CONFIDENTIAL
RICEVED IN
REGISTRY-No.51
23 JAN197
INKK 14/8 HICK
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CONFIDENTIAL
TO PRIORITY HONG KONG TELNO 89 OF 24 JAN 1974.
PREVENTION OF BRIBERY ORDINANCE: PROPERTY OF THIRD PARTIES.
1981. IN PARAGRAPH 13 OF OUR TELNO 938 OF 21 SEPTEMBER 1973 WE
COMMENTED THAT IT WOULD BE WRONG TO ORDER THE CONFISCATION OF
THE PROPERTY OF THIRD PERSONS, NOT PARTY TO THE CASE. IN YOUR 204 TELNO 1890 OF 27 SEPTEMBER 1973 YOU AGREED.
(204)
2. WE TAKE IT THAT THE NEW SECTION 12(4) (SECTION 4 OF THE.
AMENDMENT BILL) IS INTENDED TO AVOID THIS PROBLEM BY RESTRICTING
FORFEITURE TO PROPERTY HELD BY THIRD PARTIES FOR OR ON BEHALF
OF THE ACCUSED, BUT THE NEW PROVISIONS APPEAR TO BE 30.DRAFTED
THAT, LEAVING ASIDE GIFTS FROM THE ACCUSED, THE FORFEITABLE
PROPERTY WILL BE THE SAME AS THAT ON WHICH A CONVICTION UNDER SECTION 18 MAY BE BASED. IF THIS IS SO, THE BURDEN OF PROOF WOULD SEEM TO BE ON THE DEFENCE AGAINST A FORFEITURE ORDER, SINCE THERE WOULD BE THE SAME PRESUMPTION ARISING FROM THE CLOSENESS OF THE RELATIONSHIP OF THE THIRD PARTY HOLDING THE
PROPERTY. IN THE ABSENCE OF AN EXPLANATION BY THE ACCUSED, THIS PRESUMPTION WOULD HAVE TO BE REBUTTED BY THE THIRD PARTY WHO
WOULD NOT EVEN BE A PARTY TO THE CASE. IN SUCH CIRCUMSTANCES,
SEIZURE WOULD SEEM TO BE MORE OR LESS AUTOMATIC.
3. MOREOVER, EVEN IF THE BURDEN OF PROOF UNDER SECTION 12 WAS HELD TO HAVE SHIFTED BACK TO THE PROSECUTION, IT IS DIFFICULT TO SEE HOW THE THIRD PARTY COULD DEFEND HIS POSSIBLY LEGITIMATE
INTEREST IN THE PROPERTY WITHOUT BEING A PARTY TO THE PROCEEDINGO.
CONFIDENTIAL
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