HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
living or be in control of pecuniary resources or prop - erty above that which is commensurate with their pre - sent or past official emoluments, unless that person is able to provide a satisfactory explanation for the disparity. Bribery Between Private Parties Section 9 of the POBO is the main provision therein that applies to private sector bribery. Under this sec - tion, it is an offence if, without lawful authority or rea - sonable excuse, any person offers any advantage to any agent, or any agent solicits or accepts any advan - tage, as an inducement to – or a reward for or other - wise – the agent performing or not performing any act, favouring or disfavouring any person or engaging in such conduct in relation to his or her principal’s affairs or business. The exception to this is where the agent has permission from the principal to solicit or accept the advantage, and the permission was given before the advantage was offered, solicited or accepted or as soon as reasonably possible after offer or acceptance of the advantage. Due to its wide ambit, Section 9 also operates as a catch-all and can cover public sector conduct that falls outside Sections 3 to 8. Hospitality Expenditures, Gifts and Promotional Expenditures “Advantage” is very widely defined and includes: • any gift, loan, fee, reward or commission consisting of money, valuable security, other property or inter - • any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part; • any other service or favour, including protection from any penalty or disability incurred or appre - hended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted; • the exercise or forbearance from the exercise of any right, power or duty; and • any offer, undertaking or promise, whether condi - tional or unconditional, of any of the advantages referred to in the foregoing. est in property of any description; • any office, employment or contract;
The POBO does not provide any de minimis defence. Hospitality expenditures, gifts and promotional expen - ditures are therefore likely to be regarded as advan - tages. However, “entertainment”, defined as “the provision of food or drink, for consumption on the occasion when it is provided, and of other entertain - ment connected with, provided at the same time as, such provisions”, is not regarded as an advantage under the POBO. A frequent point of contention in relation to this exception is whether the entertainment offered was solely for consumption “on the occasion when it was provided”. In light of the foregoing, offering, giving, soliciting or accepting gifts, travel, hospitality, etc is likely to con - travene the POBO unless: • the recipient is duly authorised to accept the advantage; • the advantage falls within the entertainment excep - tion; and/or • the advantage is given in a private or personal con - text and not for the purpose of securing any benefit or facilitating any process. Bribery of Foreign Public Officials The POBO does not contain any provision that specifi - cally governs bribery of foreign public officials. Fur - ther, as a “public servant” is not defined in the POBO to include foreign public officials, the provisions that apply to bribery of public officials in Hong Kong do not apply in the context of bribery of foreign public officials. However, it was held by the Hong Kong Court of Final Appeal in B v Commissioner of the Independent Com- mission Against Corruption [2010] 3 HKC 118that the definition of the term “agent” used in Section 9 of the POBO is non-exhaustive and could cover foreign public officials. In these circumstances, Section 9 can apply to the bribery of foreign public officials, but only if “a substantial measure of the activities constituting a crime” takes place in Hong Kong, as (unlike Section 4) Section 9 does not expressly apply to acts done “whether in Hong Kong or elsewhere” and therefore does not have extraterritorial effect ( HKSAR v Krieger [2014] 3 HKLRD 404).
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