HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
5. Penalties for Violations 5.1 Penalties on Conviction For bribery offences under the POBO, the following penalties apply. • An offence under Sections 3 to 9 is punishable on summary conviction by a maximum fine of HKD100,000 and imprisonment for up to one year. A person convicted under Section 3 may also be ordered to pay the amount or value of the advan - tage received by them (or any part of that advan - tage that the court may specify). • An offence under Section 10 is punishable on sum - mary conviction by a maximum fine of HKD500,000 and imprisonment for up to three years. • An offence under Section 4, 7, 8 or 9 is punishable on conviction upon indictment by a maximum fine of HKD500,000 and imprisonment for up to seven years. • An offence under any Section 5 or 6 is punishable on conviction upon indictment by a maximum fine of HKD500,000 and imprisonment for up to ten years. • An offence under Section 10 is punishable on conviction upon indictment by a maximum fine of HKD1 million and imprisonment for up to ten years. Where a person has been convicted under Section 10 of the POBO on the basis that they are in control of pecuniary resources or property disproportionate to their present or past official emoluments, they may, in addition to receiving the penalty referred to in the foregoing, be ordered to pay to the government – or be subject to an order for confiscation of – a sum not exceeding the amount of the pecuniary resources or the value of the property for which they do not have a satisfactory explanation. Anyone convicted of a bribery offence under the POBO may be prohibited for a period of up to seven years from taking up or continuing employment as either a professional, a self-employed businessperson or a manager of a corporation or public body (Section 33A of the POBO).
Penalties for Non-bribery Offences Applicable to Public Servants Where a public servant misappropriates or embez - zles public funds or engages in any other conduct that constitutes theft under Sections 2 and 9 of the Theft Ordinance, they shall be liable on conviction to imprisonment for ten years. A public servant who is convicted of the common law offence of misconduct in public office is liable to a maximum penalty of seven years’ imprisonment and a fine. Penalties Under the CO In relation to the obligation to keep accounting records pursuant to Section 373 of the CO: • where a director of the company in question fails to take all reasonable steps to secure compliance with such obligation, they shall be liable on convic - tion to a maximum fine of HKD300,000; and • where a director of the company in question wilfully fails to take all reasonable steps to secure compli - ance with such obligation, they shall be liable on conviction to a maximum fine of HKD300,000 and to imprisonment for up to 12 months. Other Penalties A person who, without reasonable excuse, fails to comply with the requirements of Section 51C of the Inland Revenue Ordinance to keep sufficient records of income and expenditure is liable on conviction to a maximum fine of HKD100,000. The court may further order the person to perform the act that they failed to perform within a specified period of time. The offence of false accounting under Section 19 of the Theft Ordinance is punishable on conviction upon indictment to imprisonment for up to ten years. Regulatory Consequences Where any person regulated by the SFC commits any of the foregoing offences, such person is likely to be regarded as having engaged in misconduct and/or to be viewed by the SFC as being not a fit and proper person to be – or to remain – a regulated person, which may result in the SFC taking the following dis - ciplinary action:
128 CHAMBERS.COM
Powered by FlippingBook