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should be exempt from the operation of Clause 15. But they consider
the clause might be accepted if amended to provide that its provisions
will not apply to any information which a solicitor considers may be
required in defence of his client in any criminal proceedings. Such an amendment would, in fact, largely nullify the provisions of
the clause and it is accordingly considered that before a final
conclusion is reached on this clause, the Governor should be asked
to state specifically the extent to which he would expect the clause
as it stands to meet with opposition from professional bodies in
the Colony.
Clause 25.
25. This clause provides that where, in any proceedings for an
offence under clauses 4 or 5, it is proved that the accused gave or
accepted an advantage, then there is a rebuttable presumption that that advantage has been given or received for corrupt purposes.
26. The clause did not appear in the original Bill as published.
It has since been inserted in Hong Kong as a consequence of other amendments introduced at our request.
27. The Governor states that the clause is similar in its effect to
section 2 of the United Kingdom Prevention of Corruption Act, 1916. However, the department's legal advisers have pointed out that it goes considerably further than the latter provision. Under that provision, if it is proved that an advantage has been given to or received by a person in Crown Service by or from a person or agent
holding or seeking to obtain a contract from Her Majesty etc., then
it is presumed that the advantage has been paid or given and received corruptly as such inducement or reward as is mentioned in the Act
unless the contrary is proved. But under Clause 25, all that needs
to be proved is that the accused gave or accepted an advantage and all the rest is presumed. However, since in practice the real issues at stake would be proof of payment and whether payment was made or
received with lawful authority or reasonable excuse, then the legal advisers agree that in the particular circumstances in Hong Kong, the clause might be accepted (although it is likely that some lawyers may object to it). See also paragraph1⁄4 above.
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/ Conclusion
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