HONG KONG LEGISLATIVE COUNCIL -- 21st October 1970. 141
Clause 24 places on accused person the burden of proving the defence of lawful authority or reasonable excuse, a defence available under clauses 4, 5, 6, 7, 8 and 9. This provision, though the matter is not free from doubt, probably reproduces the present position at common law, the general principle being that if the subject matter of an allegation is peculiarly within the knowledge of an accused, it is for him to rebut it. A similar provision is already to be found in the Criminal Procedure Ordinance.
By clause 25, where it is proved, in a prosecution under clause 4 or 5, that an accused gave or accepted a bribe, there is a presumption, which it is open to him to rebut, that the advantage was accepted for the reason alleged in the charge. This provision is similar to the presumption which is contained in section 11 of Chapter 215, though that section is limited to offences connected with public contracts.
Perhaps I should make it clear that the effect of these two clauses is not, as has been suggested, to place an accused in the position of having to prove himself innocent. Before these presumptions are of any effect it will be for the prosecution to establish the various elements of the offence. Only when it has done to the satisfaction of the court will it be necessary for the accused to put forward his defence that he had lawful authority or reasonable excuse for receiving the advantage, or that he did not accept it for the reason which is alleged in the charge.
Clause 26 will enable the prosecution and the court to comment on the failure of the accused to give evidence on oath. Such comment by the prosecution is, at present, generally prohibited though it may be made by the court. In corruption cases if the accused fails to give any explanation at all it is surely not unreasonable to permit attention to be called to this fact.
Clause 28, which permits costs to be awarded by the Supreme Court and District Courts to a person acquitted on a charge of bribery, was not in the 1969 bill. It is thought that the nature of some of the provisions of the bill is such that prosecutions might be brought more freely than in regard to other offences and that, consequently, the courts should be able to award costs to a person acquitted of charges under the bill in an appropriate case.
Clause 27 enables a court to report to me cases of malicious allega- tions which come before it, so that I can study the record and decide what action, if any, should be taken. Clause 29 makes it an offence to render a false report of an offence under the bill or otherwise to mislead a police officer or other person acting under clause 13. The object of these clauses is to discourage unfounded reports of corruption to which public officers will inevitably be vulnerable.
Page 30Page 31
No comments yet.
Private notes are available after approval.