TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 231

Argument

CONFIDENTIAL

Clause 10

10.

This clause makes the unexplained possession of property by any

public servant a criminal offence, although no prosecution can be

instituted without the consent in writing of the Attorney-General who

is required, before instituting proceedings, to give any person against whom prosecution is under consideration an opportunity of making

representations in writing.

11.

TheGovernor attaches particular importance to the retention of

this clause and he so informed Mr. Michael Stewart when he visited

Hong Kong as Secretary of State in April. He considers it to be an essential part of the Bill, both because it constitutes a valuable

deterrent and because its existence is avidence of a determination to

tackle corruption vigorously. He argues that corruption in Hong Kong is a considerable problem, that severe measures are required to deal

with it, that the existing Public Service disciplinary provisions are

inadequate and cannot in any case be applied to the employees of public utility companies (who are included in the definition of "public servant" for the purposes of the Bill), that the clause has been

generally accepted by the public and that the Bill containing it has been approved by his Executive Council.

12. The department's legal advisers are opposed to the retention of

the clause. They feel strongly that the unexplained possession of

wealth should not be made a criminal offence but should be dealt with

under disciplinary regulations. Their objections to the clause are

also based on the following considerations:-

(a)

Although under Clause 10 the prosecution would first have to

show that the accused had been maintaining a high standard

of living or 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 act of a criminal nature.

(b) If the burden of proof is to be placed on the accused in this

manner, he is entitled to know what he must prove to secure

his acquittal. But the clause does not state what test the court is to apply in deciding whether an explanation is

satisfactory.

CONFIDENT IAL

/ (c) ...