147. However, apart from over-caution as regards the grant of authorizations under section 13, it may be that the phraseology of the opening words of the section are unduly restrictive. As I have said, at present the Attorney General (or his delegate) must be "satisfied that there are reasonable grounds for suspecting that an offence... has been committed." There is an objective as well as a subjective aspect to such phraseology. In any particular case, it might well be open to a suspect to seek a ruling from the courts as to the reasonableness of the grounds on which the Attorney General exercised his discretion. To my mind, the mere possibility that a successful investigation might be stifled in this way at its very inception is not in the public interest; and I therefore recommend that section 13 begin thus:
"Where it appears to the Attorney General that an offence under this Ordinance may have been com-
mitted, by any person, he may" etc.
Or, better still,
"Where it appears to the Director that an offence under this Ordinance may have been committed" etc. Or, better still,
"The Attorney General [or Director] may" etc.
Section 14
148. This section empowers the Attorney General to issue a notice to a suspect and to any other person whom the Attorney General believes to be acquainted with the facts relevant to an investigation, requiring them all to submit information to the Director of the A.C. Office. As I have said earlier in this report, as originally drafted it was to be an offence under sub-section (4) for any person (including the suspect) to neglect or fail to comply with the Attorney General's notice. I have scrutinized the Attorney General's legislation files; and I am satisfied that there was no objection locally to this draft provision. However, the legal advisers to the Secretary of State objected on the ground that, in complying with the notice, the suspect might be forced to incriminate himself. The reaction of the ordinary man "on the Shamshuipo omnibus", so to speak, might well have been: "And why not?" However, sub-section (4) was amended so as to make it an offence for any person, other than the suspect, to neglect to comply with the notice; and a new provision [now section 20(b)] was added. That simply says that if the suspect is ever brought to trial the prosecution and the court may com- ment on his failure to comply with the Attorney General's notice.
149. Of course, the result of the amendment to subsection (4) of section 14 was that the whole section looked somewhat ridiculous. The Attorney General does not need statutory power to address a suspect in the manner envisaged by subsection (1) of the section. He can do that anyway; and experience has shown that, in the absence of a penal sanction, suspects do not comply with notices of this kind. The section is a dead letter so far as they are concerned.
150. I do not propose to go into the history of the so-called "right of silence and privilege against self- incrimination." From a purely evidential point of view, given proper safeguards designed to ensure that the suspect, or accused, is not subjected to pressure of any sort, the effect of which might be to cause him to say something which is untrue, self-incriminatory evidence is probably the best form of evidence. A suspect may be "framed" by others. Provided he is not subjected to pressure from any quarter, he does not usually “frame” himself. Nevertheless, the so-called right of silence is something dear to the heart of every criminal. Jeremy BENTHAM, whose common sense has always appealed to me, once said:
"If all the criminals of every class had assembled, and framed a system after their own wishes, is not this rule the very first which they would have established for their security? Innocence never takes advantage of it: innocence claims the right of speaking, as guilt invokes the privilege of silence."
Elsewhere, BENTHAM gives a number of reasons for the rule, one of which undoubtedly accords with one aspect of the British character. He says:
"This consists in introducing upon the carpet of legal procedure the idea of 'fairness' in the sense in which the word is used by sportsmen. The fox is to have a fair chance for his life: he must have . . . leave to run a certain length of way for the express purpose of giving him a chance for escape ... In the sporting code these laws are rational . . .”
No doubt they are. But do they merit any place at all in a serious inquiry designed to establish the guilt or innocence of a person suspected of having committed a crime? They may not merit a place; but they certainly do have a place in our system of criminal justice.
151. However, my point is that the so-called right of silence is not, and never was, a basic human right under the law. In olden times those who had an interest in the outcome of court proceedings were incompetent to act as witnesses in them. It was not until 1898 in England (and 1906 in Hong Kong) that the incompetency of an accused person to testify in his own defence was finally removed. He was made a competent witness for
31
No comments yet.
Private notes are available after approval.