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4. THE NEW SECTION 14B SEEMS TO BE MORE TIGHTLY DRAFTED, IN THAT
THE COURT IS REQUIRED TO BE SATISFIED THAT THE PROPERTY IS BEING
HELD FOR OR ON BEHALF OF OR TO THE ORDER OF THE SUSPECT.
MOREOVER UNDER SECTION 14C THE THIRD PARTY HAS A RIGHT TO APPLY FOR
REVOCATION. BUT THIS RELATES ONLY TO AN INTERIM RESTRAINING ORDER,
AND IN CASES WHERE THE PROSECUTION DO NOT APPLY FOR SUCH AN ORDER, OR THE THIRD PARTY DOES NOT APPLY FOR REVOCATION, THERE WOULD BE NO GUIDE TO THE COURT IN ORDERING FORFEITURE UNDER 12(4) AFTER
CONVICTION.
5. THERE SEEM TO BE THREE POSSIBILITIES. WE COULD DECIDE THAT FORFEITURE (AND THEREFORE PROBABLY THE RESTRAINING ORDERS),
SHOULD APPLY ONLY TO PROPERTY IN THE ACTUAL POSSESSION OF THE
ACCUSED. THIS WAS WHAT WE HAD IN MIND IN OUR ORIGINAL COMMENT. THE JUSTIFICATION OF SECTIONS 10 AND 12(3) IS THAT PUBLIC SERVANTS SHOULD SOMETIMES BE HELD SPECIALLY LIABLE. BUT NORMAL LEGAL PRINCIPLS SHOULD APPLY TO THIRD PARTIES AND PROPERTY IN THEIR POSSESSION,
6. HOWEVER WE ACCEPT THAT THIS COULD ENCOURAGE PUBLIC SERVANTS TO
DEPOSIT FORFEITABLE PROPERTY WITH THEIR WIVES ETC. WE MIGHT THEREFORE
MAKE PROVISION FOR SEPARATE FORFEITURE PROCEEDINGS IN WHICH IT WOULD BE THE DUTY OF THE CROWN TO PROVE AGAINST THE THIRD PARTY, ON THE BALANCE OF PROBABILITIES, THAT THE PROPERTY WAS ACTUALLY HELD FOR OR ON BEHALF OF THE CONVICTED PERSON IN THE CRIMINAL CASE.
7. FINALLY, WE MIGHT CONSIDER ALTERING THE EXISTING DRAFT TO GIVE THE THIRD PARTIES A RIGHT TO BE HEARD BEFORE AN ORDER OF FORFEITURE WAS MADE. BUT WE WOULD NOT WELCOME THIS, SINCE IT COULD LEAD TO CONFUSION BETWEEN SECTIONS 10 AND 12 AS TO THE IDENTITY OF THE PARTIES AND THE BURDEN AND REQUIRED QUANTUM OF PROOF.
8. GRATEFUL IF YOU WOULD ACCORDINGLY CONSIDER POSSIBLE FURTHER
AMENDMENTS BEFORE THE BILL GOES TO LEGCO. WE HAVE NO FURTHER OFFICIAL LEVEL COMMENT ON THE DRAFT, EXCEPT THAT YOU DO NOT APPEAR TO HAVE TAKEN UP THE SUGGESTION IN THE LAST SENTENCE OF 294) FARA 3 OF OUR TELNO 1148 OF 12 NOVEMBER 1973, WHICH COULD DO
SOMETHING TO MEET THE PROBLEM OF THE ACCUSED DISPOSING OF
CORRUPTLY OBTAINED PROPERTY.
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