HONG KONG LEGISLATIVE COUNCIL
12 July 1989
香港立法局
一九八九年七月十二日
35
unfairly prejudiced by any draconian measures of the law whilst on the other hand the law must be made effective.
The first issue to which I wish to address concerns clause 3(1) of the Bill which allows the confiscation investigations to proceed after the defendant has appeared before the High Court or the District Court. Upon closer examination the ad hoc group identified a potential loophole in that since the word "appear" will be construed as physical appearance, a drug trafficker could frustrate the confiscation investigations by absconding before he is due for appearance in the court. To remove this potential loophole, the reference to appearance will be replaced by a reference to proceedings in the High Court or the District Court.
The second issue concerns clause 3(4) of the Bill which provides that, before sentence can be imposed upon a convicted person, the court will have to determine whether he has benefited from drug trafficking and, if so, to assess the amount involved and make consequent confiscation orders. The ad hoc group shares the legal profession's concern that determination of the appropriate sentence would be unduly delayed in complex cases where lengthy investigations are necessary to ascertain the assets involved, and that the court could be influenced, or at least perceived to have been influenced, by the extent to which the defendant is determined to have benefited from drug trafficking before passing sentence on him. In this respect, it is useful to point out that for a criminal conviction, the prosecution must prove beyond reasonable doubt that an offence has been committed by the defendant whereas for a confiscation order, the court only needs to be satisfied on the balance of probabilities, that the defendant has benefited from drug trafficking.
Apart from the arguments cited by the legal profession, the ad hoc group also understand that the identification and confiscation of assets derived from drug trafficking is totally independant from the determination and imposition of sentence for the convicted drug trafficking offence which triggered off the whole process of investigation, and recognizes the common law principle that power to delay sentence should only be exercised in limited circumstances. A proposal was therefore put forward to the Administration to remove the requirement that sentencing should be held up pending the completion of confiscation investigations. An amendment will be moved at Committee stage in this connection.
The third issue, raised by the banking sector, is of a very different nature. It relates to clause 25(1) of the Bill, which creates an offence for a person who enters into or is otherwise concerned in an agreement to retain or control on