TNAG-0259-FCO40-295-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 189

Clause 3

FOREIGN AND COMMONWEALTH OFFICE COMMENTS ON

REVISED PREVENTION OF BRIBERY BILL, 1970

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The amendment to this clause does not meet the objections previously raised, and the phrase "without lawful authority or excuse"

is likely to cause difficulties of construction.

The clause as worded would cover not only true cases of

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corruption but cases where there was no element of corruption, such

as the soliciting of an advantage in circumstances quite unconnected with the public servant's duties or the acceptance of a voluntary Christmas box or its equivalent. We consider that the latter class

of case should constitute a different, and lesser, offence and this

could be achieved if clause 3 were reworded.

"Soliciting or

accepting an

advantage.

3. Any public servant who, without the

general or special permission of the Governor,

solicits or accepts an advantage shall be guilty of an offence."

If this were done then an Establishment Regulation could be issued on

the lines of Colonial Regulation No.51, and Clause 12 amended to

prescribe a lesser penalty for this offence.

In this event an additional sub-clause of Clause 4 would be

required to cover the more serious offences by public servants and carrying the sentence prescribed in Clause 12(a)(ii).

We see

considerable presentational advantage in distinguishing offences by public servants in this way.

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It is suggested that the marginal note to Clause 4 should read just "Bribery". The present note is misleading as the clause creates offences other than those "in respect of business with a public body".

Clause 10

The amendments do not meet the objections previously raised.

The opportunity now given to a public servant under investigation of making representations to the Attorney-General was always

available to him: no prosecution would in any event be instituted

without preliminary enquiries in the course of which it would be open to the person under investigation to make a statement if he wished to do so.

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