CO129-616-3 Prevention of Corruption Ordinance- 1948 7-8-1948 - 21-10-1948 — Page 18

54384/36/48.

COLONIAL OFFICE,

The Church House,

Gt. Smith Street,

Westminster, S.W.1.

20th September, 1948.

2

18

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My dear Griffin,

The Hong Prevention of Corruption Ordinance, 1948, has some

to me for examination.

Evidence of accomplice.

2.

Section 9 of the Ordinance reads as follows i-

Notwithstanding any rule of practice or procedure to the contrary in the event of a person being charged with an offence against section 3 or section 4, a judge shall not be required to direct the jury that it is dangerous to convict on the evidence of an accomplice without corroboration in a material particular implicating the acoused, but in every such case the jury shall be directed to convict if they are satisfied beyond reasonable doubt that the evidence of such accomplice is worthy of belief.

In the first place you will notice that, if strictly and literally construed, this section requires a judge to direct a jury to convict if they believe the evidence of the accomplice regardless of whether that evidence, if true, is sufficient to uphold the charge. This is not so in clause 9 of the Bill where the words "if the evidence of such accomplice, if believed, would warrant a conviction" appear immediately after the words

"in every such case". Unfortunately these words were deleted in Legislative Council and the reason for this deletion, according to Strickland's covering report, was that it was arguable that their effect might be to make it necessary for the judge to come to such a conclusion (i.e. that the accomplice's evidence if true would warrant a conviction) before leaving the case to the jury. The way to avoid this difficulty would have been not to delete the words in question altogether but to modify them slightly and insert them at the end of the section which would then have read something like this .....but in every such case the jury shall be directed to convict if they are satisfied beyond reasonable doubt that the evidence of such accomplice is worthy of belief and is sufficient to establish that the accused committed the offence wherewith he is charged for such other offence as he my properly be convicted of upon the charge preferred_7": The words in brackets would be to cover a case where, for example, the accused was charged with the full offence and only an attempt was proved.

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3.

In the second place I am not very happy about the general merits of section 9. Paragraph 3 of the Objects and Reasons, which is signed by yourself, reads as follows:-

"3.

The

Corruption is by no means an easy charge to bring home as those who practise it are normally skilful in covering up their traces. task is rendered more difficult by the fact that it is the practice for the judge to direct the jury where the prosecution evidence is that of an accomplice and his evidence is not corroborated that it is dangerous to convict. The practice follows English law and has the obvious common sense foundation that such evidence should not lightly be accepted. It is, however, believed that the word "dangerous" has an unfortunate effect on the minds of juries in the Colony who tend to treat it as equivalent to a direction to acquit. Clause 9 of the Bill seeks to readjust the balance by substituting a direction which is still fair to the accused without giving the jury a wrong impression.

I quite appreciate that in some cases the use of the word "dangerous" by a judge might erroneously be taken by a jury as the equivalent of a direction to acquit. I see, too, that for your purpose it would not be enough for the judges to agree informally among themselves not to use the

J. B. GRIFFIN ESQ.

/word