HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
solicited or accepted or as soon as reasonably pos - sible after its offer or acceptance. For the bribery offence under Section 3 of the POBO (dealing with prescribed officers), a common law defence of honest and reasonable mistake of fact is available, such that a defendant will not be liable if they can show, on the balance of probabilities, that they honestly and reasonably, but mistakenly, believed that they had the general or special permission of the chief executive to accept the advantage in question. For an offence under Section 10 of the POBO (unex - plained wealth), it is a defence for the accused to pro - vide a satisfactory explanation as to how they were able to maintain the relevant standard of living or how the relevant pecuniary resources or property came under their control. In relation to the obligation to keep accounting records pursuant to Section 373 of the CO, a director of the company in question may be liable for failing to take all reasonable steps to secure compliance with such obligation, but it is a defence for the director to estab - lish that they had reasonable grounds to, and did in fact, believe that a competent and reliable person was charged with the duty of ensuring compliance and was in a position to discharge that duty. 4.2 Exceptions There are no exceptions to the defences outlined in 4.1 Defences . 4.3 De Minimis Exceptions The POBO does not contain any de minimis excep - tion. However, according to the Prosecution Code of the Department of Justice (the “Prosecution Code”) – which is a set of statements and instructions to guide prosecutors in conducting prosecutions – in decid - ing whether to prosecute, consideration will be given to factors such as “the seriousness of the offence” and “whether or not the offence is trivial”. Therefore, in practice, prosecution may not be brought for a bribery offence that involves a bribe of a very low or nominal level, but that is not to say this would never occur. In 2024, a woman was charged by the ICAC for attempting to bribe a driving examiner with a moon - cake voucher worth over HKD400 in order to obtain
a passing result in her driving test after she failed the parking component. Bribery of any form or amount (even of a very low monetary value) is a serious crimi - nal offence in Hong Kong. 4.4 Exempt Sectors/Industries No sector or industry is exempt from the bribery offences under the POBO. Further, Section 19 of the POBO specifically states that it shall not be a defence for a bribery offence under the POBO to show that the advantage in question is customary in any profession, trade, vocation or calling. 4.5 Safe Harbour or Amnesty Programme There is no safe harbour or amnesty programme for bribery offences under the POBO based on self- reporting, adequate compliance procedures or reme - diation efforts. In practice, self-reporting and volun - tary co-operation with the authorities are significant mitigating factors that could lead to a decision not to prosecute. If the decision is made to prosecute and the person is convicted, they could rely on such con - duct in mitigation to seek a reduced sentence. Further, pursuant to the Prosecution Code, in excep - tional circumstances, a witness or informer may be granted immunity from prosecution. Ordinarily, this would require that the evidence given by the witness or informer be necessary to secure the conviction of a person with a higher level of involvement in the rele - vant offence (as compared with the witness or inform - er), and that such evidence is not available elsewhere. Finally, Section 23 of the POBO stipulates the circum - stances in which a suspect of a corruption offence may be granted immunity from prosecution. Where a written request is made by the Secretary for Justice, the court may inform any person accused or suspect - ed of a corruption offence that, if they give full and true evidence or are lawfully examined in such pro - ceedings, they will not be prosecuted for the offence disclosed by their evidence.
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