HONG KONG LEGISLATIVE COUNCIL
香港立法局
12 July 1989
一九八九年七月十二日
38
the first of these groups, bank employees, can draw some comfort from the proposed letter to be given by the Secretary for Security, the truth is that such a letter would not be binding on the Attorney General or the Crown Prosecutor.
The argument against providing specific defences seems to turn largely on the difficulty of drafting language that gives protection without opening more loopholes. However, as in the case of the word "suspicion", the lack of protection for the financial industry could well undermine the effectiveness of this legislation. Specific defences should be made available in each of the cases just cited.
A second point of concern is the issue of criminal liability in Hong Kong. The current draft of the legislation fails to clarify what the territorial limitations of the Bill will be and whether or not persons in Hong Kong will be held liable for participating indirectly in or simply having knowledge of illegal activities outside the territory.
Under the legislation as now drafted, it is arguable that banks which receive reports from or make credit decisions for branches outside Hong Kong may inadvertently incur liability even though the illegal act took place abroad. The Government disagrees and takes the view that criminal liability can only be incurred in respect of transactions within the territory. If that is the Government's position, why will they not agree to a simple amendment stating that position?
Third, there is the question of guidelines. It would give the financial industry a far greater degree of comfort if the guidelines for the implementation of this Bill were referred to specifically in the legislation. I understand that the Government will give assurances regarding how it will operate the legislation now, with particular regard to the guidelines. But these assurances are of an informal nature. As such, they may not be binding in the future.
The financial industry would prefer to see the guidelines referred to in the legislation and specific defences tied to observance of the provisions of the guidelines.
The Government has indicated that it is prepared to review the Bill at some point in the future. Hong Kong's financial industry strongly believes that a date should be fixed now for this review.
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