TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 146

CONFIDENTIAL

It is clear that the Governor. I ce.10 were dripped

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without the personal consent of the Attorney-General (or Solicitor- General), Hong Kong, who would have to give a prior opportunity to the person concerned of making written representations to him.

5. It is felt by the Legal Adviser that this clause violates

the principle that a man shall not be convicted of a criminal

offence unless a Court is satisfied beyond reasonable doubt that

he has committed the offence - a principle which is basic to our whole approach to criminal law. (Though technically Clause 10 creates an offence separate and distinct from that of corruption, a person convicted under that clause would in reality be convicted because the circumstances raised a suspicion that he had been guilty of corruption).

6.

Another objection to the clause is that the test by which the

Attorney-General decides to institute a prosecution or the Courts

decide on a conviction, is necessarily a subjective judgment on

which two persons may take different views without it being possible to say that either view is unreasonable this seems too

uncertain a test on which to decide the question whether a person is or is not guilty of a criminal offence.

7.

The Legal Adviser has suggested, as an alternative to the clause, the substitution of a provision based on Malaysian legislation to the effect that the unexplained possession of pecuniary resources or property (though not constituting an offence in itself) may be taken into account as corroborative

evidence in support of a charge of bribery. This could tip the scale in favour of the prosecution where, for instance, there was dispute as to whether the accused had or had not taken a bribe.

wanty 8.

The Governor has argued very strongly for the retention of

Clause 10 on the following grounds :-

(i)

Corruption in Hong Kong is a much greater problem than

it is in Britain and consequently tougher measures than

those which have been effective in Britain are imperative

to deal with it.

CONFIDENTIAL

/ (ii)