TNAG-0259-FCO40-295-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 76

CONFIDENTIAL

Reference......

12

act of a

Crimmal

natue

LEGAL OBJECTIONS TO CLAUSE 10 POSSESSION OF UNEXPLAINED PROPERTY) OF THE PREVENTION OF BRIBERY BILL

1970 OF HONGKONG

Although the prosection would first have to show that the accused had been maintaining a high standard of living or possessed or had possessed property disproportionate to his financial

emoluments, the accused could then be convicted if

he remained silent even though there was no evidence of his having committed any offence. Acts or behaviour which are in no way of a criminal

nature should not be made the subject of criminal

offences. Conduct and acts of a non-criminal

nature are too frequently made criminal offences in

certain countries behind the iron curtain and

other countries which can be said to be police states, (for example, the offence of conduct pre- judicial to the State or the offence of issuing words or writings contrary to government policy). The unexplained possession of wealth should not be

made a criminal offence but should be dealt with under disciplinary regulations.

A further objection is that the clause does not state what test the court is to apply in deciding whether an explanation is satisfactory. If it means "consistent with innocence and not shown to be untrue" the court will ask, innocent of what atminal offence? In certain cases English law casts the burden of proof on the accused, but only in relation to a specific issue of fact. If the burden of proof is to be cast on the defendent, he is entitled to know what he must

prove to secure an acquittal. For instance, if the

court established that he had been able to live at a standard above that which was commensurate with his official emoluments because of his gains in gambling, or because he had borrowed money or obtained goods on credit, or if he had obtained the money by illegal means, would any of these amount to a satisfactory explanation for the purpose of an Ordinance for the prevention of bribery? Further, is it right that a person in order to defend himself of a charge under the proposed clause 10 should be forced to admit, perhaps, the commission of some other offence?

CONFIDENTIAL