HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
2.5 Intermediaries Pursuant to Section 2 (2) of the POBO, a person offers, solicits or accepts an advantage if they themself, or “any other person acting on [their] behalf”, engage in the relevant conduct. Therefore, a person who offers, solicits or accepts an advantage through a third party or intermediary would still be exposed to liability under the bribery offences outlined in 2.1 Bribery . The inter - mediary, on the other hand, would only be liable if they aided, abetted, counselled or procured the offence, or conspired with the person who offered, gave, solicited or accepted the bribe. 2.6 Lobbyists Lobbying activities are not regulated by the POBO. 3. Scope of Application 3.1 Limitation Period Under Hong Kong law, criminal offences are triable either (i) on indictment or (ii) summarily. Broadly speaking, summary offences are less serious than indictable offences (ie, offences that may or must be tried on indictment). There is no limitation period for indictable offences. For offences that may only be prosecuted summar - ily, prosecution should generally be brought within six months from the time when the underlying events occurred. However, the time limit for summary pros - ecution of Section 3 of the POBO is extended to two years from the time when the underlying events occurred. Further, in relation to the financial record- keeping offences referred to in 2.3 Financial Record- Keeping , the time limit for offences under the CO that can only be prosecuted summarily is extended to (i) within three years after the commission of the offence; and (ii) within 12 months after the date on which the supporting evidence came to the Secretary for Jus - tice’s knowledge. 3.2 Geographical Reach of Applicable Legislation Section 4 of the POBO, relating to the bribery of Hong Kong civil servants, is the only provision in the ordi - nance that has extraterritorial effect, as it imposes
criminal liability regardless of whether the operative conduct takes place “in Hong Kong or elsewhere”. Thus, the offering of any advantage to a public serv - ant, or the soliciting or accepting of such advantage by the public servant, as inducement or reward for doing or not doing an act or showing favour or disfa - vour is an offence under Section 4 of the POBO, even if the offering, soliciting or accepting occurs outside Hong Kong. On the other hand, although Section 9 of the POBO does not have extraterritorial effect, as explained in 2.1 Bribery , bribery of a foreign public official can be caught by Section 9 in circumstances where “a sub - stantial measure of the activities constituting a crime” A “person” is defined under Section 3 of the Interpre - tation and General Clauses Ordinance (Cap 1) as “any public body and any body of persons, corporate or unincorporate”. The bribery offences under the POBO therefore apply to individuals and companies alike. However, in practice, it is rare for companies to be prosecuted for bribery offences. Therefore, although it is technically possible for a successor entity to be held liable for offences under the POBO committed by the predecessor entity prior to a merger or acquisition, it is the individuals involved who are typically prosecuted. For bribery offences under Sections 4 to 9 of the POBO, it shall be a defence for the accused to show that they had lawful authority or reasonable excuse to offer, solicit or accept the advantage in question. Pursuant to Section 24 of the POBO, the accused shall bear the burden of proving a defence of lawful authority or reasonable excuse. Further, specifically in relation to Sections 4 and 9 of the POBO (dealing with bribery of civil servants and the catch-all offence), it shall also be a defence for the accused to show that they have written permission from the relevant pub - lic body or their principal (as applicable) to solicit or accept the advantage granted prior to it being offered, takes place in Hong Kong. 3.3 Corporate Liability 4. Defences and Exceptions 4.1 Defences
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