HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton
convicted, as stated in 4.5 Safe Harbour or Amnesty Programme . 6.3 Self-Disclosure Procedures As stated in 6.1 Disclosure Obligations , there is no general legal duty to disclose or report known or suspected corruption or bribery to law enforcement bodies in Hong Kong, save that financial institutions and their directors, staff and auditors may be required under particular local legislation or regulations to dis - close corrupt activities to the relevant regulators. Where an obligation to file an STR arises under Sec - tion 25A of OSCO, it should be submitted in writing to the JFIU. 6.4 Protections Afforded to Whistle-Blowers Save as mentioned below, there is no legislation in Hong Kong that specifically protects whistle-blow - ers. However, Section 30A of the POBO prevents any witness in civil and criminal proceedings from being compelled to disclose, or to answer any question that may lead to the discovery of, an informer’s name or address and also requires the redaction of any docu - ment in such proceedings that may lead to disclosure of the informer’s identity. In addition, ICAC informers whose personal safety or well-being might be at risk may receive witness protection under the Witness Protection Ordinance (Cap 564). For completeness, starting 1 January 2022, all Hong Kong listed companies are required under the Corpo - rate Governance Code, which is at Appendix C1 to the Listing Rules of Hong Kong, to establish and disclose, on a “comply or explain” basis, effective whistleblow - ing and anti-corruption policies in their ESG reports. Specifically, the whistleblowing policy of a Hong Kong listed issuer is expected to cover, among other things, a description of preventative measures, the whistleblowing procedures adopted, and the manner in which these measures are implemented and moni - tored. The whistleblowing policy should emphasise the importance of keeping reports made under the policy on an anonymous and confidential basis and protecting whistle-blowers from retaliation. 6.5 Incentives Provided to Whistle-Blowers There is no statutory framework for rewarding whis - tle-blowers. However, self-reporting and co-operation
with the authorities are mitigating factors that could result in a more lenient sentence after conviction. Although not guaranteed, this could also influence the prosecutor’s decision on whether to grant immunity from prosecution. For details, see 4.5 Safe Harbour or Amnesty Programme .
7. Enforcement Trends 7.1 Enforcement
Bribery offences under the POBO are prosecuted criminally, resulting, upon conviction, in the penalties outlined in 5.1 Penalties on Conviction . 7.2 Enforcement Bodies The ICAC is the law enforcement agency responsible for preventing and investigating corruption in Hong Kong. Under the Independent Commission Against Corruption Ordinance (Cap 204) (ICACO) and the POBO, the ICAC has wide-ranging powers to investi - gate corruption, including: • the power to arrest without warrant any person who is reasonably suspected of committing an offence under the POBO and to enter and search any premises for the purpose of effecting such arrest if there is reason to believe that the person to be arrested is on the relevant premises; • the power to search (without warrant in certain cir - cumstances) any person reasonably suspected of committing any offence under the POBO and any premises in which such person was (or is to be) arrested or that is otherwise reasonably believed to contain evidence of the offence, and to seize or detain anything that is reasonably believed to be or to contain evidence of the offence; • the power to require (with leave of the court) the production of documents and disclosure of infor - mation where there is reasonable cause to believe that the documents and information are likely to be relevant to the investigation of, or proceedings relating to, an offence under the POBO; • the power to apply to the court for a restraining order, requiring any person being investigated or prosecuted for an offence under the POBO or any other person holding property on behalf of such person to refrain from disposing or dealing with any
130 CHAMBERS.COM
Powered by FlippingBook