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21.
Mr K C CHAN asked whether there was any way of implementing the two schemes together, so that the judge had the choice of ordering either automatic indebtedness or a confiscation order. Mr Findlay replied that in his view this was not possible because the schemes were mutually inconsistent. The two schemes represented different ways of achieving the same end: the automatic indebtedness scheme was a very blunt instrument, while the confiscation order scheme might be compared to an expensive rapier. In reply to
Mr Martin LEE, Mr Findlay acknowledged that one of the main aims of either scheme was to show that Hong Kong was taking steps to tackle the problem.
22.
Mr David LI said that the Chief Justice's reservations were understandable, but in his view those who made profits from drug trafficking did not deserve much sympathy and deserved to be treated harshly for all the misery they caused. The existing maximum five of $5 million for the more serious offences was not enough: a figure of $100 million would be more appropriate. Mrs TAM and Dr CHIU agreed with Mr LI's views. Dr CHIU said that the automatic indebtedness scheme would probably be very effective; he asked whether such a scheme existed elsewhere. Mr Mortimer replied that he knew of no other similar scheme elsewhere.
23.
Mr Martin LEE said that one of the functions of the courts was to provide checks and controls on executive power. For this reason the punishment of an offender had always been left to the discretion of the Court. Sometimes judges had been unfairly criticized by the public for passing lenient sentences because the mitigating factors that had determined a sentence had not been adequately reported. The public often saw only one side of a case in the newspaper reports: to obtain a complete picture of a particular case it was necessary to read the full court record. Mr LEE said that the power to punish should be left with the judges: this was usual in common law countries, though there were some exceptional mandatory sentences, which were distasteful both to judges and lawyers alike. Mr LEE said that, in considering the present proposals, it had to be borne in mind that the objective was not to let the criminal profit from ill-gotten gains. In most drugs cases judges already awarded long prison sentences even for first offenders; but if a first offender had only just begun to be involved in drug trafficking and had not yet made much profit from it, how could he possibly be expected to pay off the enormous debt that would be imposed on him by the automatic indebtedness scheme? The scheme was in effect a system of mandatory sentences: if the offender did not pay the debt he would be given a prison sentence of up to 10 years in addition to the original sentence. Even though there was a provision in the scheme for the offender to prove that he did not have the means to pay the debt, the onus of proof in such cases was on the defence: experience in cases in which the onus of proof was on the defence had shown that the defendant could be very clumsy in cross examination, and it would be very difficult for him to prove that he had no assets.
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