HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
• any person holding an office of emolument, whether permanent or temporary, under the government; • any principal official of the government appointed under the Basic Law; • the HKMA; • the Chairman of the Public Service Commis - sion; • any member of the staff of the ICAC; and • any judicial officer and any member of staff of the judiciary. To soften the impact of Section 3, the chief executive has issued the Acceptance of Advan - tages (Chief Executive’s Permission) Notice, which gives prescribed officers general permis - sion to accept advantages that fall outside the four restricted categories of gift, discount, loan of money and passage, as well as permission to accept advantages that fall within the restricted categories in limited circumstances. With regard to public servants who are not pre - scribed officers, Section 4 of POBO imposes criminal liability on any public servant who, whether in Hong Kong or elsewhere, solicits or accepts without lawful authority or reasonable excuse any advantage as an inducement to, or a reward for or otherwise: • performing or abstaining from performing any act in their capacity as the chief executive or a public servant; • expediting, delaying, hindering or preventing the performance of an act, whether by them - self or by any other public servant in their – or that other public servant’s – capacity as the chief executive or a public servant; or • assisting, favouring, hindering or delaying any person in the transaction of any business with a public body (collectively, the “Stipulated Acts”).
It is also an offence for any person, whether in Hong Kong or elsewhere, without lawful author - ity or reasonable excuse, to offer any advantage to the chief executive or any public servant as an inducement to – or a reward for or otherwise – the chief executive or public servant (as appli - cable) performing any of the Stipulated Acts. The exception is where the recipient of the advantage is a public servant (not being a pre - scribed officer) who had written permission to solicit or accept the advantage, granted by the public body that employs them, prior to the advantage being offered, solicited or accepted or as soon as reasonably possible after offer or acceptance of the advantage. There is no exception for “facilitation payments”, generally understood to mean payments made to secure or speed up performance by a public official of a duty that he or she was in any event obliged to perform unless the recipient is duly authorised to accept the payment. Sections 5 to 8 of POBO set out other public sector offences. Under these sections, it is an offence if, without lawful authority or reasonable excuse: • any person offers any advantage to the chief executive or any public servant, or the chief executive or any public servant solicits or accepts any advantage, as an inducement to – or a reward for or otherwise – the chief executive or the public servant (as applica - ble) assisting or influencing (i) the promo - tion, execution or procuring of any contract or subcontract to conduct work for a public body; or (ii) the payment of moneys under any such contract or subcontract (Section 5); • any person offers, solicits or accepts any advantage as an inducement to – or a reward
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