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Anti-Bribery and Corruption: Hong Kong

 

What is the governing legislation?

The Prevention of Bribery Ordinance (Cap 201) (“POBO”).

What is the definition of ‘bribery’?

The POBO prohibits the solicitation or acceptance of advantages by persons in the public sector and private sector.

An ‘advantage’ includes gifts, money, commissions, offices, employment, contracts, services or favours, discharges of liability in whole or in part, the exercise or forbearance from exercise of any right or any power or duty. It does not include entertainment by way of food and drink if consumed on that occasion.

The following acts will amount to an offence if committed in the public sector:

  • Solicitation or acceptance of advantages by a prescribed officer, without the Chief Executive’s permission.
  • Offering of any advantage to a public servant, or the acceptance by a public servant of any advantage, by a person whether in Hong Kong or elsewhere, in connection with performing or not performing public duties, or for expediting, delaying, hindering or preventing a public servant from performing public duties or in respect of any business transaction with a public body.
  • Offering, soliciting or accepting any advantage for procuring a withdrawal of a tender, or refraining from making of a tender, or for any contract with a public body for the performance of any work or provision of any service or the doing of any thing.
  • Offering, soliciting or accepting any advantage in relation to bidding or refraining to bid at auctions.
  • Possession of unexplained property by a current or former Chief Executive or a prescribed offer.

In the context of the private sector, the POBO prohibits corrupt transactions with agents. An agent is prohibited from soliciting or accepting, any advantage when conducting its principals affairs without the principal’s permission.

What are the defences/ exceptions?

It is a general defence to provide that they have offered, accepted or solicited the advantage with lawful authority or reasonable excuse. In the context of agents, if an agent solicits or accepts an advantage with the permission of the relevant principal, neither the agent nor the person offering the advantage, will be guilty of the offence of corruption transactions with agents.

It is not a defence or excuse to show that the giving or accepting of an advantage is customary practice.

What are the sanctions?

The maximum penalty is a fine of up to HK$1,000,000 and imprisonment of up to 10 years. Anyone convicted of a bribery offence may be prohibited for a period of not exceeding 7 years from taking up or continuing employment as either a professional, a self-employed businessman, or a manager of a corporation or public body.

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