136 HONG KONG LEGISLATIVE COUNCIL 21st October 1970.
M
[THE ATTORNEY GENERAL] Prevention of Bribery Bill-second
reading
Clause 9, which deals with corrupt transactions with agents, is substantially the same as section 4 of Chapter 215, which is itself based on an English Act. Although the section has been little used, I think that I should point out the fact, which is perhaps not generally realized, that the term "agent" is defined in clause 2 as including not only a public servant but any other person employed by or acting for another. Thus an employee or agent of a firm, a partnership or a company is an "agent" for the purpose of clause 9. Accordingly if, without lawful authority or reasonable excuse, he solicits or accepts any advantage or reward for doing any act, or for showing or not showing favour or disfavour to any person, in relation to his employer's affairs, he will be guilty of an offence for which the maximum punishment will be 7 years' imprisonment and a fine of $100,000. If payments, which are sometimes called "kick-backs", are solicited or accepted by, or offered to, an agent as an inducement or reward for his help in relation to his employer's business, they may fall within the terms of this clause, if given to an agent without the knowledge and consent of his employer.
Clause 10 makes it an offence for a public servant to live at a higher standard, or to be in control of more money or property, than is justified by his salary, unless he gives a satisfactory explanation to the Court as to how he is able to do this or how he acquired the money or property. This clause imposes a criminal liability for something which has in the past rendered a Crown servant liable only to disciplinary proceedings. It has naturally aroused some criticism, since it introduces a novel crime.
I should however point out that the effect of this clause is not, as has been alleged by some critics, to relieve the Crown of all burden of proof. In prosecutions under this clause, as in other criminal offences, an initial burden of proof of certain facts lies on the prosecu- tion and until these facts have been proved the accused has no case which he is obliged to answer. Under clause 10, it will be necessary for the Crown to prove that the public servant is living above his means or is in control of money or property beyond that which he might reasonably be expected to have in view of his salary. It is only after the Crown has done this that the accused will be obliged to give a satisfactory explanation to the Court.
Subclause (2) of clause 10, which was not in the 1969 bill, introduces a new safeguard, which is modelled on a similar provision in the Employment Ordinance. It obliges the Attorney General, before any prosecution is instituted under clause 10, to inform the suspected person that a prosecution against him is being considered and to give him an opportunity of making representations in writing. If, for example, there
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