NOTHING TO BE WRITTEN IN THIS MARGIN
W(B)L 51-7406
CONFIDENTIAL
silent, even though there was no evidence of his having committed any act of a criminal nature.
5. Moreover, the clause does not state what
test the court is to apply in deciding whether
an accused's explanati on is satisfactory. In certain cases English law casts the burden of proof on to the accused, but only in relation to a specific issue of fact. If the burden of proof is to be cast on to the defendant, he
is entitled to know what he must prove to secure an acquittal. It is very doubtful
whether it would be right that a person, in
order to defend himself against a charge under
clause 10, should be forced to admit, perhaps,
the commission of some other offence.
6. I appreciate that the clause gives a public servant under investigation an opportunity of making representations to the Attorney-General; but in any event no prosecution would be instituted without preliminary enquiries in the course of which it would be open to the person under investigation to make a statement
if he wished to do so.
7. It is my view that possession of unexplai- ned property should not be made a criminal off- ence, but should be dealt with under discipli- nary regulations. However, you may wish to consider introducing, in place of clause 10, a clause on the lines of Section 17 of the Malaysian Prevention of Corruption Act, 1961. That Section provides that the unexplained possession of pecuniary resources or property (although not constituting a criminal offence in itself) may be taken into consideration by the court as corroborative evidence in support of the charge against the accused. I would see no objection to the introduction of such a clause which would act as a useful supplement
to clause 25. For example, if there were a dispute as to whether the accused had or had
/ not been
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