TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 213

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Sir Leslie Monson

2.

Hong Kong Prevention of Bribery Bill

Thank you for your minutes of 17 and 20 July.

I have read with interest the Press interview with the Lord Chancellor

attached to your minute of 20 July, but it does not seem to me to be really

relevant to our problem. What the Lord Chancellor envisages is the possibility

of a change in the law that would allow the prosecution at the trial to comment

on the fact that an accused had declined to make a statement to the police or to

give evidence in court. Such comment, however, would be merely an invitation

to the jury to take the accused's silence as some corroboration of other evidence

of his guilt adduced at the trial. Clause 10 of the Hong Kong Bill goes far

beyond that. As I said in my minute to you of 16 July, what the clause in

effect does is to allow a public servant to be convicted on suspicion of

and be it noted that corruption where evidence of corruption is not obtainable

the maximum penalty that can be imposed on a person so convicted is the same as

in the case of a public servant who is actually convicted of corruption under

clause 4(2), viz. a fine of 100,000 dollars and imprisonment for seven years (clause 12(1)(a)(ii)). I remain of the opinion that clause 10 is so offensive

in principle that it ought to be omitted.

3.

G

In addition, I think that clause 10 raises certain problems for the

Attorney-General and for the Judges that might make the operation of the clause

difficult as well as exposing the accused to the risk of being judged according

to standards which, because they must be subjective, are liable to be uncertain.

The essence of an offence under clause 10 is maintaining a standard of living

higher than is commensurate with, or being in control of resources

disproportionate to, one's official emoluments. Consequently, the Attorney- General (for the purpose of deciding whether to authorise a prosecution and for

the purpose of drawing up the particulars of the offence where he does authorise a prosecution) and the court (for the purpose of deciding whether or not to

convict) will have to formulate for themselves some theoretical norm according

to which persons on particular grades of salary are to be judged. No doubt the

Attorney-General and the court would both do their best but the question of what

amounts to living above the standard that is commensurate with a particular

salary is one that can be answered only by making a subjective judgment and on

which two people might take different views without its being possible to say