HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
• revocation of licence; • suspension of licence; • revocation of approval granted to act as a respon - sible officer; • public or private reprimand; • prohibition to be, or to apply to be, licensed/regis - tered as a responsible officer; and/or • a pecuniary penalty of up to HKD10 million, or three times the amount of profit gained or loss avoided as a result of the misconduct. 5.2 Guidelines Applicable to the Assessment of Penalties When imposing a sentence on a person convicted of bribery or corruption under the POBO, Hong Kong courts are generally guided by the following sentenc - ing principles derived from case law. • Distinguish between the culpability of offenders and award discounts where they are warranted, having regard to the maximum penalty. • Treat the giver and receiver of a bribe as equally culpable in ordinary cases unless the circumstanc - es justify different treatments. • No distinction is made in principle between the culpability of private and public sector corruption. • It is a norm to impose an immediate custodial sen - tence unless there are special circumstances for imposing some alternative sentence. • For minor cases of corruption, the starting point is 12 months’ imprisonment, which can be reduced on mitigation. • Suspension of a custodial sentence and the mak - ing of a community service order are alternatives to a sentence of immediate imprisonment, and they will only be imposed in a corruption case if excep - tional circumstances exist. • Higher sentences may be imposed for multiple or repeated offences.
cial institutions and their directors, staff and auditors may be required, under particular local legislation or regulations, to disclose corrupt activities to the rel - evant regulators. Where a company is a listed issuer in Hong Kong, it is subject to the mandatory disclosure requirements under the Environmental, Social and Governance Code set out in Appendix C2 of the Listing Rules of Hong Kong to disclose, on a “comply or explain” basis, information on compliance with relevant laws and regulations that have a significant impact on the listed issuer relating to bribery, and the number of concluded legal cases regarding corrupt practices brought against the listed issuer or its employees during the reporting period and the outcomes of the cases. For completeness, under Section 25A of the OSCO, any person who knows or suspects that any property, in whole or in part, directly or indirectly represents any person’s proceeds of, or was used or is intended to be used in connection with, an indictable offence is required to report that knowledge or suspicion as soon as reasonably practicable to a police officer or the Customs and Excise Department. In practice, sus - picious transaction reports (STRs) are made to the Joint Financial Intelligence Unit (JFIU), which is jointly run by the Hong Kong Police Force and the Customs and Excise Department. The timely making of an STR triggers a defence to money laundering. A person who makes an STR before dealing in the property in ques - tion with the consent of the JFIU, or who makes an STR voluntarily as soon as reasonable after dealing in the property, shall not be liable for the offence of dealing in criminal proceeds under Section 25 of the OSCO. 6.2 Voluntary Disclosure Incentives Apart from the disclosure requirements that are appli - cable to listed companies in Hong Kong described in 6.4 Protections Afforded to Whistle-Blowers , self- disclosure of potential violations of anti-bribery and anti-corruption provisions are significant mitigating factors that could lead to a decision not to prose - cute, or provide a basis for seeking a reduced sen - tence in mitigation if the person is prosecuted and
6. Disclosure Processes 6.1 Disclosure Obligations
Save for the disclosure requirements described below, there is no general legal duty to disclose or report known or suspected corruption or bribery to law enforcement bodies in Hong Kong. However, finan -
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