TNAG-0198-FCO40-234-Prevention-of-bribery-bill-1969 — Page 71

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40 We are very doubtful whether the making of the possession of unexplained property a criminal offence can be justified, even in the circumstances in Hong Kong, and certainly not making it an offence carrying a maximum penalty of $ 20,000 or seven years imprisonment. There may be legitimate reasons why an officer would not wish to explain in public how he has acquired or has access to means other than his official emoluments; although he might not have any objection to giving an explanation to the Head of Establishments. It seems thesefore sufficient to make possession of unexplained property a disciplinary offence.

5. Clause 14 will give the Attorney-General power to require a person accused of an offence under the Bill to give a statement as to certain specified matters and if the accused person fails to comply with the Attorney-General's request he may be prosecuted. This runs contrary to a fundamental principle of English law that an accused person is not obliged to incriminate himself and has the right if he so wishes of remaining silent. It seems to us that this provision could not be justified even in the circumstances existing in Hong Kong.

6. It seems to us that sub-sections (3) and (4) of Clause 15, requiring Legal Advisers to give information, go too far and should be omitted.

7. We incline to the view that paragraph (b) of Clause 20(1) goes too far in relieving the Prosecution of the burden of proof.

8. Clause 25 will bar an accused person from electing to make an unsworn statement from the dock.

The purpose behind this provision would seem to be to force the accused person either to remain silent or to submit to cross examination. In our view such a provision is objectionable and one cannot justify, even in the circumstances in Hong Kong, taking away from the accused person one of his basic rights.

9. Clause 31 would appear to take away the Court's discretion where it is proved that the accused is guilty not of the offence charged but of some other offence or where there any material variances between the parti- culars of the offence charged and the evidence produced in support thereof. It seems to us it would be preferable to substitute "may" for "shall" in sub-sections (1) and (2) of this Clause.

(A. Grattan-Bellew)

20 August, 1969