HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
was solely for consumption “on the occasion when it was provided”. In light of the foregoing, offering, giving, solicit - ing or accepting gifts, travel, hospitality, etc is likely to contravene POBO unless: • the recipient is duly authorised to accept the advantage; • the advantage falls within the entertainment exception; and/or • the advantage is given in a private or personal context and not for the purpose of securing any benefit or facilitating any process. Bribery of Foreign Public Officials POBO does not contain any provision that spe - cifically governs bribery of foreign public offi - cials. Further, as a “public servant” is not defined in POBO to include foreign public officials, the provisions that apply to bribery of public officials in Hong Kong do not apply in the context of brib - ery of foreign public officials. However, it was held by the Hong Kong Court of Final Appeal in B v Commissioner of the Inde - pendent Commission Against Corruption [2010] 3 HKC 118 that the definition of the term “agent” used in Section 9 of POBO is non-exhaustive and could cover foreign public officials. In these circumstances, Section 9 can apply to the brib - ery of foreign public officials, but only if “a sub - stantial measure of the activities constituting a crime” takes place in Hong Kong, as (unlike Section 4) Section 9 does not expressly apply to acts done “whether in Hong Kong or elsewhere” and therefore does not have extraterritorial effect (HKSAR v Krieger [2014] 3 HKLRD 404). 2.2 Influence-Peddling As explained in 2.1 Bribery , the term “advan - tage” is adopted in all the relevant provisions in
POBO. Whether any particular conduct consti - tutes an offence under these provisions depends on whether an advantage was offered, solicited or accepted. An advantage is widely defined as including “any other service or favour” and “the exercise or forbearance from the exercise of any right or any power or duty”, which is likely to cover any exercise of influence on decision- making. Therefore, influence-peddling for the purpose of obtaining a benefit from a public servant or private party in Hong Kong is likely to constitute an offence under POBO. Influence-peddling for the purpose of obtain - ing a benefit from foreign public officials could constitute an offence under Section 9 of POBO, depending on whether the influence-peddling occurred in Hong Kong (see 2.1 Bribery , “Brib - POBO does not contain any requirement for the retention of books and records. However, Section 9 of POBO includes a separate offence (Section 9(3)) prohibiting an agent from using any receipt, account or other document that contains any statement that is materially false, erroneous or defective with intent to deceive their principal. Although not found in POBO, there are broad books and records requirements and offences elsewhere in Hong Kong law. The Companies Ordinance (Cap 622) (CO) imposes various record-keeping obligations on Hong Kong companies. For instance, Section 373 of the CO imposes an obligation on Hong Kong companies to keep accounting records that are sufficient for the following purposes: • to show and explain the company’s transac - tions; ery of Foreign Public Officials”). 2.3 Financial Record-Keeping
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