Colonial Office,
The Church House,
сол
Your Ref. AGO.L.56/48 Our Ref. 54384/36.
My dear Strickland,
Great Smith Street,
S.W.1.
21st October, 1948.
Many thanks for your letter of the 12th October. It was very good of you to reply so quickly but even so I am afraid that we had al- ready had our discussion with Griffin before your letter arrived.
We agreed with Griffin that section 5 (1) (a) and (f), section 5 (2) (c) and the words "to be forever incapable of holding any public office, and" in section 5 ̊ (1) (e) should be repealed.
We discussed section 9 at great length from every possible point of view and eventually de- cided in favour of the amendment suggested in paragraph 3 of my letter to Griffin of the 20th September. Griffin will no doubt give you our reasons at length when he returns. The modifi- cation which you suggest in paragraph 3 of your letter seems to me to be too tight as it appears to overlook the fact that, though the accomplice's evidence may supply a vital link, it is most un- likely that it will of itself be such as to establish all the elements of the charge which will, therefore, have to be proved by the evidence of other witnesses.
Yours sincerely,
The Honourable G.E. Strickland.
J. McPetrie,
Page
Page
BY AIR MAIL
age 9
q
6.
TELEPHONES:
ATTORNEY GENERAL 39255
G
AL OFFICE
(3)
39269
My dear McPetrie,
ATTORNEY GENERAL'S OFFICE.
SUPREME COURT,
HONG KONG,
12th Oct.,
REF. NO AGO L.56/48
DEFENCE & GENERAL Your Ref: 54384/36
19 OCT 1948 RECISTRY
1948.
I am much obliged for your letter of the 28th September, 1948. Although the Bill was "vetted" by Griffin, I was responsible in the first instance for the drafting and for moving the amendment to section 9.
2.
I am in general agreement with the points made by you but the following observations may assist in your discussion with Griffin if this reaches you in time.
3.
I very much doubt whether the strict construction suggested by you would be adopted by the Courts. I think the Courts would limit section 9 to cases where the judge was prepared to leave the case to the jury and would but for the section have warned them of the danger of convicting upon the uncorroborated evidence of an accomplice. As we are embarking upon a revision of the laws it will, however, be possible to put the matter beyond doubt in the not too distant future and the question arises how can this best be achieved. We are, I think, faced with this difficulty. Local juries contain only a sprinkling of Europeans and the prevalence of corruption in the East, coupled with the consequences of a conviction, lead to the jury being only too ready to grasp the way out offered by any direction from the Bench as to the danger or unreliability of accomplice evidence. This makes me a little hesitant to accept the solution offered by your paragraph 3, which I would otherwise consider admirable. No doubt judges who have experience of Hong Kong juries would model their direction accordingly but this might well lead to uncertainty as to what is a proper direction and give rise to appeals on the ground of misdirection. I would, therefore, prefer to adopt in a modified form the solution advocated in the first paragraph of your letter to Griffin. The modification, I suggest, is "but in every such case it shall suffice if the jury are directed, etc." This would, in my view, not deprive a judge of his discretion of adding a warning if he thought fit, but has the advantage of giving a lead as to what will normally be a proper direction.
4.
I agree with your views on interpretation and as to ultra vires and regret that these points escaped me. On the whole, I think the best course would be to amend section 5 by deleting paragraphs (a) (e) and (f) from subsection (1) and paragraph (c) from subsection (2)*. I certainly do not think it would be wise in Hong Kong to draw a distinction between Crom employees and servants of other public bodies such as the Municipal Council. Moreover, in practice disqualification from public office and dismissal would, in any event, be practically automatic and there is not a great deal to be gained by express provision. The question was not really seriously considered by either Executive or Legislative Council, possibly because the provisions were modelled on section 2 of the Fublic Bodies Corrupt Practices Act, 1889, but from an informal talk with His Excellency since the receipt of your letter, I think he would be agreeable to the course suggested above. This solution would avoid the apparent incongruity of excepting appointments to Legislative and Executive Council from the provisions of the Ordinance relating to disqualification and dismissal. If, however, the Letters Fatent were amended there would be no question of ultra vires and then it might be preferable to amend to remove doubts as to interpretation and by deleting paragraph (f) of subsection (1) of section 5.
J.C. McPetrie, Esq.
Yours sincerely,
Georg Wtrickland
age 9
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