HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
• any person holding an office of emolument, wheth - er permanent or temporary, under the government; • any principal official of the government appointed under the Basic Law; • the HKMA; • the chairperson of the Public Service Commission; • any member of the ICAC staff; and • any judicial officer and any member of staff of the judiciary. To soften the impact of Section 3, the chief execu - tive has issued the Acceptance of Advantages (Chief Executive’s Permission) Notice, which gives pre - scribed officers general permission to accept advan - tages that fall outside the four restricted categories of gift, discount, loan of money and passage, as well as permission to accept advantages that fall within the restricted categories in limited circumstances. With regard to public servants who are not prescribed officers, Section 4 of the POBO imposes criminal liability on any public servant who, whether in Hong Kong or elsewhere, solicits or accepts without lawful authority or reasonable excuse any advantage as an inducement to, or a reward for or otherwise: • performing or abstaining from performing any act in their capacity as the chief executive or a public servant; • expediting, delaying, hindering or preventing the performance of an act, whether by themself or by any other public servant in their – or that other public servant’s – capacity as the chief executive or a public servant; or • assisting, favouring, hindering or delaying any per - son in the transaction of any business with a public body (collectively, the “Stipulated Acts”). It is also an offence for any person, whether in Hong Kong or elsewhere, without lawful authority or rea - sonable excuse, to offer any advantage to the chief executive or any public servant as an inducement to – or a reward for or otherwise – the chief executive or public servant (as applicable) performing any of the Stipulated Acts. The exception is where the recipient of the advan - tage is a public servant (not being a prescribed officer)
who had written permission to solicit or accept the advantage, granted by the public body that employs them, prior to the advantage being offered, solicited or accepted or as soon as reasonably possible after offer or acceptance of the advantage. There is no exception for “facilitation payments”, gen - erally understood to mean payments made to secure or speed up performance by a public official of a duty that he or she was in any event obliged to perform unless the recipient is duly authorised to accept the payment. Sections 5 to 8 of the POBO set out other public sec - tor offences. Under these Sections, it is an offence if, without lawful authority or reasonable excuse: • any person offers any advantage to the chief executive or any public servant, or the chief execu - tive or any public servant solicits or accepts any advantage, as an inducement to – or a reward for or otherwise – the chief executive or the public servant (as applicable) assisting or influencing (i) the promotion, execution or procuring of any con - tract or subcontract to conduct work for a public body; or (ii) the payment of moneys under any such contract or subcontract (Section 5); • any person offers, solicits or accepts any advan - tage as an inducement to – or a reward for or otherwise – the withdrawal of a tender, or refrain - ing from making a tender, for any contract with a public body (Section 6); • any person offers, solicits or accepts any advan - tage as an inducement to – or a reward for or otherwise – refraining from bidding at any auc - tion conducted by or on behalf of any public body (Section 7); and • any person who, while having dealings with the government, offers any advantage to any pre - scribed officer employed in the relevant depart - ment, office or establishment of the government; or while having dealings with any other public body, offers any advantage to any public servant employed by that public body (Section 8). Further, Section 10 of the POBO makes it an offence for any person who is – or has been – the chief execu - tive or a prescribed officer to maintain a standard of
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