139. As regards section 3, consideration should also be given to the enactment of a provision either requiring the court to make an order in respect of the advantage which the Crown servant has accepted, or at least giving the court a discretion in the matter, that is to say an order which would operate in the same way as the order I recommend in respect of section 10.
Section 13
140. One of the most important investigatory sections in the Ordinance is section 13. Experience has shown that the police seldom obtain clear-cut information of corrupt transactions from persons whom they are in a position to call as witnesses. For the most part, their information is of the most nebulous nature. It has therefore been recommended to the Commission that the Attorney General should be given the power to authorize the investigation and inspection of bank, and other, accounts referred to in section 13 operated by Crown servants, or their relatives, quite irrespective of any question of a suspected offence.
141. I strongly support this recommendation. There must be very few honest Crown servants who would object to this. It has been suggested that there should be periodic "spot checks" based on nothing except the fact that the Crown servant's name has been drawn out of a hat. For myself, I would certainly have no objection to that; and I am sure the majority of Crown servants, who have nothing to fear, would feel the same way. But, it may not be necessary to go as far as that. What frequently happens is this: The head of a Department may believe that certain officers in his department are corrupt. He may have no direct information to prove this. His belief may be based on the officer's general reputation, or on an intimate knowledge of the working of the department and the officers in it, coupled with an assessment of the suspected individual-for example the individual's reaction to a proposal that he be transferred to another appointment. There may be hundreds of small matters which mean little or nothing to lawyers and which could not possibly influence a court, but which are of significance to the head of that particular department and which may well play a part in creating in the mind of the head, a belief that the officer in question is corrupt.
142. Beliefs based on material of this kind are sometimes brushed aside as little more than "hunches" and therefore worthless-although if the manager of a commercial firm were to hold the same beliefs and were to dismiss an employee in consequence thereof, society would think nothing of it and the employee would have no redress against his employer if reasonable notice of termination, or salary in lieu, were given.
143. Such material may fall short of what would cause a magistrate to issue a search warrant.
It may fall short of what the Assistant to the Attorney General attached to the Anti-Corruption Office may insist upon getting before he exercises his statutory powers under section 13, as that section is phrased at present. Never- theless, anyone who has worked closely with experienced and responsible senior police officers and heads of executive departments must surely have the highest respect for their "hunches" based as they are on direct experience of the day-to-day workings of departmental procedures.
144. In my view, where suspicion of corruption exists, that should be sufficient to enable an investigation of the kind envisaged by section 13 to be commenced.
145. At present the Attorney General is required to be:
"satisfied that there are reasonable grounds for suspecting that an offence . . . has been committed.”
What is sufficient to "satisfy" one person may not be sufficient to satisfy another; and the Commission was informed that since the Ordinance came into force in May 1971, the Director has, on a number of occasions, felt frustrated because the information available to him was not sufficient to satisfy the Principal Crown Counsel attached to the Anti-Corruption Office to whom the Attorney General had delegated his powers under section 13. The result has been that, in those cases, no authorization under section 13 was sought or granted; and, as a result, the investigation never got "off the ground”, so to speak. I can not discount the possibility—indeed probability—that some corrupt officers have not been brought to trial as a result of the investigation having been "still born".
146. I would not wish this statement to be taken as criticism of any person. One only has to glance at the Attorney General's legislation files to appreciate how much criticism was levelled at the draft Prevention of Bribery Bill prior to its enactment in 1970. Much of that criticism emanated from the legal advisers to the Secretary of State; but there were also some misgivings locally. The Attorney General gave Legislative Council solemn assurances that his new powers would not be abused; and there can be no doubt that all concerned in the operation of the Ordinance since it came into force have been acting cautiously-in my view over- cautiously.
30
No comments yet.
Private notes are available after approval.