HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
2.2 Influence-Peddling As explained in 2.1 Bribery , the term “advantage” is adopted in all the relevant provisions in the POBO. Whether any particular conduct constitutes an offence under these provisions depends on whether an advan - tage was offered, solicited or accepted. An advantage is widely defined as including “any other service or favour” and “the exercise or forbearance from the exercise of any right or any power or duty”, which is likely to cover any exercise of influence on decision- making. Therefore, influence-peddling for the purpose of obtaining a benefit from a public servant or private party in Hong Kong is likely to constitute an offence under the POBO. Influence-peddling for the purpose of obtaining a benefit from foreign public officials could constitute an offence under Section 9 of the POBO, depending on whether the influence-peddling occurred in Hong Kong (see 2.1 Bribery , “Bribery of Foreign Public Offi - cials”). 2.3 Financial Record-Keeping The POBO does not contain any requirement for the retention of books and records. However, Section 9 of the POBO includes a separate offence (Section 9 (3)) prohibiting an agent from using any receipt, account or other document that contains any statement that is materially false, erroneous or defective with intent to deceive their principal. Although not found in the POBO, there are broad books and records requirements and offences else - where in Hong Kong law. The Companies Ordinance (Cap 622) (CO) imposes various record-keeping obligations on Hong Kong companies. For instance, Section 373 of the CO imposes an obligation on Hong Kong companies to keep accounting records that are sufficient for the fol - lowing purposes: • to show and explain the company’s transactions; • to disclose with reasonable accuracy, at any time, the company’s financial position and financial per - formance; and • to enable the directors to ensure that the state - ments comply with the CO.
In particular, the accounting records must contain dai - ly entries of all sums of money received and expended by the company – and the matters to which they relate – and a record of the company’s assets and liabilities. Further, Section 51C of the Inland Revenue Ordinance (Cap 112) requires every person and company carry - ing on a trade, profession or business in Hong Kong to keep sufficient records of their income and expen - ditures for not less than seven years after completion of the relevant transaction, act or operation to enable the assessable profits of the trade, profession or busi - ness to be ascertained. In addition, there is the offence of false accounting under Section 19 of the Theft Ordinance (Cap 210), which provides that a person who dishonestly, with a view to gain for themself or another or with intent to cause loss to another, (i) destroys, defaces, conceals or falsifies any account, record or document made or required for any accounting purpose; or (ii) in furnish - ing information for any purpose, produces or makes use of any account, record or document made or required for any accounting purpose that they know is or may be materially misleading, false or deceptive, shall be guilty of an offence. 2.4 Public Officials There are no specific offences under the POBO cover - ing any act of misappropriation of public funds, unlaw - ful taking of interest, embezzlement of public funds or favouritism by a public official. However, such acts may constitute theft under Sections 2 and 9 of the Theft Ordinance (Cap 210) if the public official dishon - estly appropriates property belonging to another with the intention to permanently deprive the other of it. A public official is also subject to the common law offence of misconduct in public office, which targets all forms of serious wilful misconduct by the public official in the course of or in relation to their public office, even if no bribery is involved. Such misconduct includes the situation where the public official uses their discretionary power improperly or shows favour to a particular contractor for personal interest.
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