TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 189

CONFIDENTIAL

11.

In order to meet criticism in Hong Kong that the clause,

if not used with care, could constitute an objectionable

intrusion into the private affairs of government officers, no

prosectuion would be instituted under this Clause without the

personal consent of the Attorney-General (or Solicitor-General)

who would have to give a prior opportunity to the person

concerned to make written representations to him.

12. It is felt here 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 and one on which we have insisted

in all overseas territories for which we are responsible.

(Though technically Clause 10 credits an offence separate and

distinct from corruption, a person convicted under that clause

would in reality be convicted because the circumstances raise

a suspicion that he has been guilty of corruption).

13.

Objections have also been raised here to Clause 10 on

the grounds that

(i)

(11)

the test by which the Attorney-General decides to institute a prosecution or the Courts to decide on a conviction, are necessarily subjective judgments on which two percons might take different views

without it being possible to say that either view is

unreasonable this seems too uncertain a test to

decide the question whether a person is or is not guilty of a criminal offence.

an accused person is entitled to know what he must

prove to receive his acquittal but under Clause 10

cannot be sure what explanation the Court would regard as satisfactory.

/[(iii)...