By Mini vandePol. Gary Seib, Cynthia Tang, Susan Kendall, Bryan Ng
Primary anti-bribery legislation and enforcement agencies
Prevention of Bribery Ordinance (Cap 201) (POBO)
- Criminalizes bribery and corrupt transactions in both the public and private sectors
- Investigating agency: Independent Commission Against Corruption (ICAC)
- Prosecuting agency: Prosecutions Division of the Department of Justice (empowered through the Secretary for Justice)
Independent Commission Against Corruption Ordinance (Cap 204)
- The ordinance provides powers for ICAC to investigate, search and seize property, as well as arrest, detain and grant bail to persons accused under the POBO (ss10, 10A and 10C). ICAC works with foreign authorities to enforce international anti-corruption legislations and the POBO (see Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525)).
Offenses
POBO[1]
Bribery (ss4 and 8)
Any person shall be guilty of an offense if:
- he or she offers any advantage to a public servant as an inducement/reward for performing/abstaining from performing/expediting/delaying any act or assisting/favoring any person (s4); or
- he or she offers any advantage to any public servant while having dealings of any kind with that government or public body (s8).
Likewise, a public servant who solicits or accepts such an advantage as an inducement/reward in the abovementioned circumstances shall be guilty of an offense.
Bribery for giving assistance in regard to contracts; for procuring withdrawal of tenders; and in relation to auctions (ss5, 6 and 7)
Any person shall be guilty of an offense if:
- he or she offers any advantage to a public servant as an inducement/reward for assistance or influence in (a) promoting/ executing/procuring a contract with a public body or subcontract (under a contract with a public body), or (b) payment in that contract or subcontract (s5);
- he or she offers any advantage to any person as an inducement/reward for withdrawal of a tender / refraining from making a tender with a public body (s6); or
- he or she offers any advantage to any person as an inducement/reward for refraining from bidding at any auction conducted by / on behalf of a public body (s7).
Likewise, any person who solicits or accepts such an advantage as an inducement/reward in the abovementioned circumstances shall be guilty of an offense.
Corrupt transactions with agents (including employees) (s9)
Any person who offers any advantage to any agent as an inducement/reward for doing/forbearing to do an act or showing favor/disfavor in relation to his principal’s affairs or business shall be guilty of an offense.
Likewise, an agent who solicits or accepts such an advantage as an inducement/reward in the abovementioned circumstances shall be guilty of an offense.
Corporate Liability exists, as the definition of “person” in offenses includes any body of persons, corporate or unincorporated (s3 Interpretation and General Clauses Ordinance (Cap 1)). However, in practice, bribery prosecutions are normally made against individuals.
Director’s liability for company actions – Yes, where offense was committed with consent or connivance of a director or officer concerned in the management of the company (s101E Criminal Procedure Ordinance (Cap 221))
Extraterritorial application
- For public sector bribery (s4), it applies to all acts whether in Hong Kong or elsewhere;
- For private sector bribery (s9), the POBO lacks extra-territoriality where the offer, solicitation or acceptance does not take place in Hong Kong even though the planning of the offer might have taken place in Hong Kong.
Defenses
- The accused has the burden of proof to show the defense of lawful authority or reasonable excuse (s24). This often revolves around whether there is consent from the principal.
- In cases concerning certain public servants, the accused may rely on the Chief Executive’s permission under the Acceptance of Advantages (Chief Executive’s Permission) Notice 2010 for certain low-value gifts or loans, among others.
Penalties – Criminal and/or Civil liability
POBO
Criminal liability (ss12)
Bribery for giving assistance in regard to contracts; and for procuring withdrawal of tenders (ss5 and 6) – Imprisonment for up to 10 years, a fine of up to HKD500,000 and payment of the amount of the advantage received.
For all other bribery offenses (ss4, 7, 8 and 9) – Imprisonment for up to seven years, a fine of up to HKD500,000 and payment of the amount of the advantage received.
Civil Liability
Civil proceedings are often taken to recover the amount of a bribe and/or proceeds flowing from it.
[1] There are also separate offenses relating to bribery at elections, which are not considered within this document.