Hong Kong Snapshot

TopicSummary
Governing legislationThe primary legislation governing corruption is the Prevention of Bribery Ordinance (Cap. 201) (“POBO”).
Prohibited conductThe POBO prohibits bribery which takes place when a person either offers to another person (an agent/public servant) or an agent or public servant solicits or accepts, without lawful authority or reasonable excuse, an advantage either as an inducement to do something, or as a reward after having done or abstaining from doing something in relation to the affairs or business of a principal or public body.
Public sector briberyCivil servants and employees of public bodies cannot solicit or accept any advantage as an inducement or reward for performing duties or for giving assistance or using influence in matters relating to a contract.
Private sector briberyIn the private sector, agents (usually employees) are prohibited from soliciting or accepting any advantage without the permission of their principal when conducting their principal’s affairs or business.
Extraterritorial effectThe prohibition against public sector bribery applies to acts taking place in Hong Kong or elsewhere. For the private sector, the POBO lacks extra-territoriality where the offer (also applied to solicitation and acceptance) does not take place in Hong Kong even though the planning of the offer might have taken place in Hong Kong (HKSAR v Lionel John Krieger and Another (06/08/2014, FAMC1/2014)). Note that although the POBO does not expressly cover bribery of foreign public officials, bribes offered within Hong Kong to a foreign public official for acts or forbearance outside Hong Kong are liable to be prosecuted under Hong Kong law (B v The Commissioner of the Independent Commission Against Corruption (28/01/2010, FACC6/2009))
Penalties or sanctionsThe maximum punishment applicable for a person guilty of a bribery offence could be up to a fine of $500,000 and imprisonment for ten years. The court may also order the confiscation of any pecuniary resources or property, and limit or prohibit employment by a public body in a management capacity.

Who can be prosecuted?

Both offerors and recipients of bribes may be prosecuted under the POBO. The POBO imposes liability on a “person” which can include corporate entities. Prosecution against companies may occur where the company’s senior management was directly involved in the decision to employ corruption to benefit the company, although such cases are less common.

What constitutes an advantage?

“Advantage” includes gifts, loans, favours, services and release from obligations but does not include entertainment. Gifts and favours in the form of preferential share allocation, tea money, and payments disguised as job fees or compensation could all fall within the definition of an advantage.

Are facilitation payments exempt?

There are no exemptions for facilitation payments in Hong Kong. Any form of advantage would be assessed according to the elements of the offence under the POBO.

What are some red flags to be aware of?

Entertainment

  • This refers to the provision of food or drink, for consumption on the occasion when it is provided, and of any other entertainment connected with, or provided at the same time.  While entertainment falls outside the definition of an advantage, this area could be a potential red flag where it may put a person in a conflict of interest or be part of a “sweetening process”.
  • Hong Kong civil servants are subject to regulations and guidelines which prescribe against entertainment that may lead to embarrassment of the officer in discharging his duties or bring the officer or the public service into disrepute.
  • The Hong Kong Independent Commission Against Corruption (“ICAC”) has also published a guide for listed companies and recommends that a listed company’s code of conduct should include guidelines advising the staff to avoid offers of meals or entertainment that are excessive or frequent.

Gifts and “Lai See”

  • In Hong Kong, it is a tradition to give red packets known as “lai see” (lucky money) during the Lunar Chinese New Year or on special occasions. Mooncakes are also popular gifts during the mid-autumn festival. These activities could fall foul of the POBO if offered as an advantage.
  • In the public sector, a government servant is permitted to accept (but not solicit) a gift not exceeding in total HK$3,000 from a “close personal friend” or HK$1,500 from any other person under traditional gift-giving occasions and not exceeding HK$500 or HK$250 in total  from a close personal friend and any other person respectively on each other occasion.
  • In the private sector, while there is no monetary threshold, an acceptor of gifts must obtain prior or retrospective approval from a principal if the gifts are related to the acceptor’s principal’s business dealings.

Are there any defences?

Under the POBO, it is not a defence that the advantage is customary in any profession, trade, vocation or calling.  There is a limited defence in relation to certain employees of public bodies or those employed or acting for another if permission is obtained from the public body or the agent’s principal. This permission needs to be in writing and given either before or as soon as reasonably practicable after the offer or acceptance of the advantage.

Who is the enforcement body and what are their powers?

The ICAC is vested with wide powers such as investigation, arrest, detention and  search and seizure. Amongst other things, the ICAC may by compulsion require the inspection and production of bank accounts; information as to property, expenditure and liabilities; the appearance before an officer to answer questions relevant to an investigation; and the surrender of travel documents of an individual reasonably suspected to have committed an offence under the POBO.

Is there any reporting or disclosure obligation?

There is no disclosure or reporting obligation on a person who is aware of corruption-related offences.