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4
7.
Such provision is made by clause 4 of the Bill,
which inserts a new section 12(3A) in the Ordinance.
The
new section further provides that the value of confiscated
assets must not exceed the value of the "unexplained"
disproportion between assets and emoluments, and states
that where the assets are held by a third party, that party
must be given reasonable notice that an order is sought,
and an opportunity to show cause why it should not be made.
8
Such powers of confiscation exist in many
countries, including the U.S.A. and Australia, with respect
to the proceeds of drug-trafficking, and in the U.S.A.
with respect to organized crime. The Civil Law countries
of Europe have, in general, wider powers of confiscation,
with some countries (e.g. Italy) extending the power to the
property of third parties.
9.
In England, the Hodgson Committee Report on
the Profits of Crime and Their Recovery (1984) has
recommended that general powers of confiscation be available
to U.K. courts. It also recommended that the power should
extend to such of the property of third parties as can be
traced to proceeds of the offence, with certain limitations
and with a right to be heard and to oppose an order. The
amendments proposed by clause 4 are generally in line with
those recommendations, but are a little more stringent.
As is recognized by the Hodgson Committee (at pp 82-83 of
the Report) it is felt that the circumstances in Hong Kong
justify such special measures.