TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 34

HONG KONG LEGISLATIVE COUNCIL 21st October 1970.

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14. Clause 10 makes it an offence for a public servant to maintain a standard of living not commensurate with, or possess property disproportionate to, his official emoluments. No prosecu- tion may, however, be instituted for this offence without the personal consent of the Attorney General (which, by reason of the Legal Officers Ordinance, includes the Solicitor General) who, before deciding whether or not a prosecution should be instituted, is required to give the person concerned an opportunity of making written representations in the matter to the Attorney General (or, as the case may be, the Solicitor General). Where a prosecu- tion is instituted, the prosecution will have to prove that the public servant is or has been maintaining a high standard of living, or possesses or has possessed property, disproportionate to his official emoluments. If this is done, the burden will then lie on the public servant to satisfy the court that he has a satis- factory explanation as to how he has been able to live beyond his official means or as to how he came by so much property; if he fails to do so, he would be convicted of the offence.

15. At present, it is a disciplinary offence, under Establish- ment Regulations, for a public officer to live beyond his official means or to possess property disproportionate to those means without being able to give a satisfactory account. (E.R. 444). Clause 10 will make this a criminal offence.

16. Clause 11 emphasizes that where a bribe is offered for a particular purpose, e.g. to induce a public servant to use undue influence in the promotion of a public contract (see clause 5), then it is immaterial whether or not that purpose could, in fact, be carried out or, if it could, whether or not the person to whom the bribe is offered intends to carry it out in any way.

17. Clause 12. Under Cap. 215 the maximum general penalty for corruption is a fine of $5,000 and imprisonment for 2 years on summary conviction or, on conviction on indictment, a fine of $10,000 and imprisonment for 5 years. Under clause 12, the maximum general penalty will be a fine of $50,000 and imprisonment for 3 years on summary conviction or, on convic- tion on indictment, a fine of $100,000 and imprisonment for 7 years. However, for offences under clauses 5 and 6 the maximum punishment will be 10 years. The provisions in Cap. 215 for compelling an accused, convicted of corruptly receiving a bribe, to pay up the same are retained, save that under this clause the power of the court to order him to do so will be mandatory and no longer discretionary. The offence under clause 3, however, attracts lower penalties because that clause does not deal with public servants abusing their official position; clause 4(2), which attracts the higher general penalty, deals with this.