HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
for or otherwise – the withdrawal of a tender, or refraining from making a tender, for any contract with a public body (Section 6); • any person offers, solicits or accepts any advantage as an inducement to – or a reward for or otherwise – refraining from bidding at any auction conducted by or on behalf of any public body (Section 7); and • any person who, while having dealings with the government, offers any advantage to any prescribed officer employed in the relevant department, office or establishment of the government; or while having dealings with any other public body, offers any advantage to any public servant employed by that public body (Section 8). Further, Section 10 of POBO makes it an offence for any person who is – or has been – the chief executive or a prescribed officer to maintain a standard of living or be in control of pecuni - ary resources or property above that which is commensurate with their present or past official emoluments, unless that person is able to pro - vide a satisfactory explanation for the disparity. Bribery Between Private Parties Section 9 of POBO is the main provision therein that applies to private sector bribery. Under this section, it is an offence if, without lawful author - ity or reasonable excuse, any person offers any advantage to any agent, or any agent solicits or accepts any advantage, as an inducement to – or a reward for or otherwise – the agent perform - ing or not performing any act, favouring or disfa - vouring any person or engaging in such conduct in relation to his or her principal’s affairs or busi - ness. The exception to this is where the agent has permission from the principal to solicit or accept the advantage, and the permission was given before the advantage was offered, solic -
ited or accepted or as soon as reasonably pos - sible after offer or acceptance of the advantage. Due to its wide ambit, Section 9 also operates as a catch-all and can cover public sector conduct that falls outside Sections 3 to 8. Hospitality Expenditures, Gifts and Promotional Expenditures “Advantage” is very widely defined and includes: • any gift, loan, fee, reward or commission consisting of money, valuable security, other property or interest in property of any description; • any office, employment or contract; • any payment, release, discharge or liquida - tion of any loan, obligation or other liability, whether in whole or in part; • any other service or favour, including protec - tion from any penalty or disability incurred or apprehended or from any action or proceed - ings of a disciplinary, civil or criminal nature, whether or not already instituted; • the exercise or forbearance from the exercise of any right, power or duty; and • any offer, undertaking or promise, whether conditional or unconditional, of any of the advantages referred to in the foregoing. POBO does not provide any de minimis defence. Hospitality expenditures, gifts and promotional expenditures are therefore likely to be regard - ed as advantages. However, “entertainment”, defined as “the provision of food or drink, for consumption on the occasion when it is provid - ed, and of other entertainment connected with, provided at the same time as, such provisions”, is not regarded as an advantage under POBO. A frequent point of contention in relation to this exception is whether the entertainment offered
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