TNAG-0260-FCO40-296-Legislation-for-prevention-of-bribery-in-Hong-Kong-1970 — Page 94

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Preliminary Matters (Part 1).

4. This Part contains, in clause 2, definitions of the more important words and expressions used throughout the Bill. References to these definitions are made in the comments on individual clauses.

Offences (Part 11).

5. This Part creates all those offences which come under the general description of corruption or bribery.

6. Clause 3 prohibits a Crown servant from soliciting or accepting any advantage (which is widely defined) without the general or special permission of the Governor for so doing. Unlike the position under the existing legislation, the advantage, under this clause, does not necessarily have to be solicited or accepted as an inducement to, or reward for or otherwise on account of, the doing or not doing of anything by the public servant. A mere indication of willingness to receive an advantage amounts to soliciting and a mere agreement to take, receive or obtain an advantage amounts to accepting the advantage within the meaning of this and the other clauses, by reason of the definitions in clause 2(2).

7. The term "public servant" is generally defined widely, so as to include not only persons employed by the Government, but also employees of those bodies listed in the Schedule (which list may be amended from time to time by order of the Governor in Council under clause 36). However, clause 3 applies only to "Crown servants", which term is restricted to officers of the Hong Kong Government.

8. Clause 4 deals with the person who, without any lawful authority or reasonable excuse, offers (which includes gives, by clause 2(2)(a)) any advantage to a public servant to induce him to abuse his official position, or as a reward for his having abused his official position, in any of the ways indicated in the clause; and with the public servant who, without any lawful authority or reasonable excuse, solicits or accepts any advantage as such an inducement or reward.

9. No attempt has been made to define "lawful authority or reasonable excuse" since this must depend on the particular facts and circumstances of each case. It will be for the courts to decide whether, in the circumstances of each case, this defence has been established; the phrase is to be found in other legislation.