HONG KONG
LEGISLATIVE COUNCIL 香港立法局———————————一九八九年七月十二日
12 July 1989
45
report the matter to an authorized officer but had a reasonable excuse for not doing so.
It is true that these defences are not designed specifically for bank transactions. But the clause is not directed solely at banks. Nevertheless, recognizing that banks and deposit-taking companies will be a major group of institutions to be affected, the Hong Kong Association of Banks and the Hong Kong Deposit-taking Companies Association, working closely with the Administration, have drawn up model guidelines which they will recommend to their member institutions. These guidelines aim to ensure that internal procedures are in place for individual staff members to report to the management transactions which are suspected or believed to be drug related. If the suspicion or belief is shared by the management, as represented by compliance officers, it will be further reported to the authorities. Where such guidelines are in place in an institution and an employee has followed them in good faith, but a tainted transaction has nevertheless not been relayed to the authorities, there would be a good case for him, if indeed he was prosecuted at all to invoke the defence that he had reasonable excuse for failing to report to the authorities. In fact, it is highly unlikely that under such circumstances an employee would be prosecuted. The Attorney General has indicated that he will have regard to the existence and content of the model guidelines when considering whether to prosecute in individual cases. But it is, of course, not possible to fetter the discretion of the Attorney General whether or not to prosecute.
While still on this subject of guidelines for financial institutions, Sir, I wish to address Mr. LI's third point, which is, that the model guidelines drawn up by the two associations should be referred to in the legislation. Bearing in mind that the Bill is not directed solely at the banks, and that it would be entirely voluntary for any person or institution to draw up any guidelines for their staff, it would be very difficult to devise a legislative scheme having reference to such guidelines which could apply to all parties that may be affected by clause 25 of the Bill, and which would not significantly impair the effectiveness of the legislation.
Mr. LI has also referred to the need for specific defences for compliance officers and the banks themselves. I do not think it is necessary to provide any statutory defence for the compliance officer because he is not a person who would enter into an arrangement as such and hence would not attract any liability, unless complicity could be proved on his part. Furthermore, to give blanket immunity to banks which might be tainted by any offences committed by compliance officers would be unsatisfactory, as this would create a major loophole, having regard to the fact that a compliance officer is designated by the
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