TNAG-0198-FCO40-234-Prevention-of-bribery-bill-1969 — Page 8

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Page

Reference....

12.5.

اپنے

Mr. Rushford asked me to give a second opinion. I agree with all Sir Arthur Grattan-Bellew says, and I think clause 3, creating an offence which depends, not on a corrupt intention, but on

he absence of lawful authority or excuse, would be extremely difficult to administer.

2. I have a couple of points to add. Having regard to the definition of public servant in clause 2, clause 13 means that an employee of one of the corporations named in the Schedule might be given special powers of investigation. I wonder if this is intended.

3.

Clause 14 (1)(c) seems to need spcial justification, and there should surely be some provision to ensure that information disclosed under it is kept confidential.

14. The new provision in clause 18 for the surrender of a passport as a condition of bail seems to be something that should be part of the general law if it is to be enacted at all. Are public officers suspected of corruption more likely than others to abscond? The clause as a whole means that a person who is preparing to go on leave may be arrested and held to bail on a mere suspciion. This will be done publicly, but if the suspicion proves unfounded there seems no means of restoring the officer's reputation.

J. Brett

Sir L. Brett)

W 44/6

8 December, 1969

age 9

Page

age 9

Page

Page

Mr. Gaminara

Reference....

24.

8.12

Hong Kong Department

K 247

(through Mr. Ryshford) Ryshford)

In my view the revised draft of the Prevention of Bribery Bill is still unsatisfactory.

2.

The amendment to clause 3 of the Bill does not meet the

objections recorded in the note at(7). I do not think it

would be satisfactory to have clause 3 in its present form and for there to be an Establishment circular giving guidance as to the kind of advantage which an officer might properly accept. On further consideration of this clause I suggest that the phrase "without lawful authority or reasonable excuse" is not appropriate when one is considering the circumstances in which

an officer may solicit or accept an advantage. The question of lawful authority surely does not arise in accepting an advantage and I think a Court would have great difficulty in construing, in the circumstances, what was meant by "reasonable excuse". I am still of opinion that ordinary gifts from personal friends should be excluded. I therefore suggest that the clause be re- worded on the following lines and the marginal note changed:-

"Soliciting

or accepting

an advantage.

3. Any public servant who without the general or special permission of the Governor, solicits or accepts any advantage shall be

guilty of an offence."

If this were done then a general order could be issued on the

lines of Col. Reg. 51.

3. I suggest that we should continue to press that provision should be made in clause 12 for a lesser penalty for the offence

created by the new clause 3. If clause 3 was changed in this

way, then I would suggest that the marginal note to clause 4 should be just "Bribery." The present marginal note is mis-

leading as the clause creates offences other than those

"in respect of business with a public body."

4.

The amendments made to clause 10 do not meet our objections. It has already been stated that there were serious difficulties about accepting this clause and those difficulties remain. Incidentally should not the marginal note to this clause read "Unexplained possession of resources"?

5. Our points have not been met as regards clause 14. I still think it objectionable to force by penal sanctions an accused person to make incriminating statements during an investigation.

/ 6.

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