TNAG-0198-FCO40-234-Prevention-of-bribery-bill-1969 — Page 77

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XCC(69)32

The Bill in Outline

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Honourable Members may particularly wish to note the

following in the bill.

16 Part I

Clause 2.

"Advantage" (which has been preferred to the word "bribe") is defined widely, to cover all the means by which corrupt gifts etc. may be offered.

17 Offences, Part II

Clause 3 prohibits a public servant from soliciting or accepting any advantage without having some lawful authority or reasonable excuse for so doing. The advantage does not have to be solicited or accepted as an inducement to a reward for or otherwise on account of the doing or not doing of anything by the public servant. The definition of public servant includes such persons as employees of statutory bodies such as the Hong Kong Telephone Company. This is also the position under the existing legislation,

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No attempt has been made to define lawful authority or reasonable excuse, which depends on the particular circumstances of each case and it is, therefore, left to the courts to decide.

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Clause 9 deals with dishonest transactions by and with agents. The definition of agent (in clause 2) extends the application of this clause to persons employed in private concerns. similar to section 4 of the existing legislation.

This clause is

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Clause 10 makes it an offence for a public servant to maintain a standard of living not commensurate with, or to possess property disproportionate to, his official emoluments. The burden of proving that the public servant is or has been maintaining such a high standard of living or possesses or has possessed property disproportion- ate to his official emoluments will lie upon the prosecution. Once this is established, the public servant will have to satisfy the court, on a balance of probabilities, as to how he has been able to live beyond his official means or as to how he came by so much property, and failing this he will be liable to be convicted of the offence created by this clause. Under Establishment Regulations, living beyond one's official means or having property disproportionate to those means without being able to give a satisfactory account has long been a disciplinary offence (E. R. 444), Clause 10 will make this a criminal offence.

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Clause 11 provides that, if a bribe is offered for a partic- ular purpose, it is immaterial whether or not that purpose could be carried out or, even if it could, whether or not the person to whom the bribe is offered intends to carry it out in any way.

CONFIDENTIAL