TNAG-0259-FCO40-295-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 72

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the bribe shall not be regarded as an accomplice, by reason only of the fact that he paid money to, or received money from, the accused.

30. Clause 23 empowers a court, at the request of the Attorney General, to inform a person who has committed an offence under Part II, that if he gives full and true evidence of the matter he will not be prosecuted. It is not uncommon, in cases where offences are committed by several persons, to call some of them as witnesses against the others. However, they may be deterred from giving full and true testimony by the fear of providing evidence against themselves on which they, in turn, could be prosecuted. Moreover, at common law a witness cannot be compelled to answer any question which might incriminate him. An assurance granted under this clause will by-pass this rule of evidence. No such assurance will, however, debar a prosecution for perjury if such a witness should commit perjury.

31. Clause 24 provides that the burden of establishing lawful authority or reasonable excuse will be upon the accused. It is probable that this provision is merely declaratory of the position at common law, since, if the subject-matter of a particular allegation is peculiarly within the knowledge of the accused, it lies upon him to rebut the allegation. However, it is thought desirable to put the matter beyond argument. The clause will not relieve the prosecution of establishing that the accused actually solicited, accepted, offered or gave a bribe, as the case may be.

32. Clause 25 provides that, in a prosecution under clause 4 (which deals with bribery affecting a public servant's official duties) or clause 5 (which deals with bribery affecting public contracts and allied subcontracts), once it is proved that the accused gave or accepted an advantage there will be a rebuttable presumption that he gave or accepted the advantage for the reason alleged in the charge. This clause is not dissimilar to the existing section 11 of Cap. 215, save that the presumption of corruption raised by that section is limited to cases involving public contracts.

33. Clause 26 will enable the prosecution, in the course of addressing the court or jury, as the case may be, to comment on the failure of the accused to give evidence on oath, which comment is at present forbidden by law. If the accused fails to give an explanation, it is not unreasonable to permit the prosecutor to call attention to the fact.