HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
• to disclose with reasonable accuracy, at any time, the company’s financial position and financial performance; and • to enable the directors to ensure that the statements comply with the CO. In particular, the accounting records must con - tain daily entries of all sums of money received and expended by the company – and the mat - ters to which they relate – and a record of the company’s assets and liabilities. Further, Section 51C of the Inland Revenue Ordi - nance (Cap 112) requires every person and com - pany carrying on a trade, profession or business in Hong Kong to keep sufficient records of their income and expenditures for not less than seven years after completion of the relevant transac - tion, act or operation to enable the assessable profits of the trade, profession or business to be ascertained. In addition, there is the offence of false account - ing under Section 19 of the Theft Ordinance (Cap 210), which provides that a person who dishonestly, with a view to gain for themself or another or with intent to cause loss to another, (i) destroys, defaces, conceals or falsifies any account, record or document made or required for any accounting purpose; or (ii) in furnishing information for any purpose, produces or makes use of any account, record or document made or required for any accounting purpose that they know is or may be materially misleading, false or deceptive, shall be guilty of an offence. 2.4 Public Officials There are no specific offences under POBO covering any act of misappropriation of public funds, unlawful taking of interest, embezzle - ment of public funds or favouritism by a public official. However, such acts may constitute theft
under Sections 2 and 9 of the Theft Ordinance (Cap 210) if the public official dishonestly appro - priates property belonging to another with the intention to permanently deprive the other of it. A public official is also subject to the common law offence of misconduct in public office, which targets all forms of serious wilful misconduct by the public official in the course of or in relation to their public office, even if no bribery is involved. Such misconduct includes the situation where the public official uses their discretionary power improperly or shows favour to a particular con - tractor for personal interest. 2.5 Intermediaries Pursuant to Section 2(2) of POBO, a person offers, solicits or accepts an advantage if they themself, or “any other person acting on [their] behalf”, engage in the relevant conduct. There - fore, a person who offers, solicits or accepts an advantage through a third party or intermediary would still be exposed to liability under the brib - ery offences outlined in 2.1 Bribery . The inter - mediary, on the other hand, would only be liable if they aided, abetted, counselled or procured the offence, or conspired with the person who offered, gave, solicited or accepted the bribe. 2.6 Lobbyists Lobbying activities are not regulated by POBO.
3. Scope of Application 3.1 Limitation Period
Under Hong Kong law, criminal offences are tri - able either (i) on indictment or (ii) summarily. Broadly speaking, summary offences are less serious than indictable offences (ie, offences that may or must be tried on indictment).
193 CHAMBERS.COM
Powered by FlippingBook