HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
3.3 Corporate Liability A “person” is defined under Section 3 of the Interpretation and General Clauses Ordinance (Cap 1) as “any public body and any body of persons, corporate or unincorporate”. The brib - ery offences under POBO therefore apply to indi - viduals and companies alike. However, in prac - tice, it is rare for companies to be prosecuted for bribery offences. Therefore, although it is technically possible for a successor entity to be held liable for offences under POBO committed by the predecessor entity prior to a merger or acquisition, it is the individuals involved who are typically prosecuted. For bribery offences under Sections 4 to 9 of POBO, it shall be a defence for the accused to show that they had lawful authority or rea- sonable excuse to offer, solicit or accept the advantage in question. Pursuant to Section 24 of POBO, the accused shall bear the burden of proving a defence of lawful authority or reason - able excuse. Further, specifically in relation to Sections 4 and 9 of POBO (dealing with bribery of civil servants and the catch-all offence), it shall also be a defence for the accused to show that they have written permission from the relevant public body or their principal (as applicable) to solicit or accept the advantage granted prior to it being offered, solicited or accepted or as soon as reasonably possible after its offer or accept - ance. 4. Defences and Exceptions 4.1 Defences For the bribery offence under Section 3 of POBO (dealing with prescribed officers), a common law defence of honest and reasonable mistake of fact is available such that a defendant will not be liable if they can show, on the balance of prob -
There is no limitation period for indictable offences. For offences that may only be pros - ecuted summarily, prosecution should generally be brought within six months from the time when the underlying events occurred. However, the time limit for summary prosecution of Section 3 of POBO is extended to two years from the time when the underlying events occurred. Further, in relation to the financial record-keeping offences referred to in 2.3 Financial Record-Keeping , the time limit for offences under the CO that can only be prosecuted summarily is extended to (i) within three years after the commission of the offence; and (ii) within 12 months after the date on which the supporting evidence came to the Secretary for Justice’s knowledge. 3.2 Geographical Reach of Applicable Legislation Section 4 of POBO, relating to the bribery of Hong Kong civil servants, is the only provision in the ordinance that has extraterritorial effect, as it imposes criminal liability regardless of wheth - er the operative conduct takes place “in Hong Kong or elsewhere”. Thus, the offering of any advantage to a public servant, or the soliciting or accepting of such advantage by the public servant, as inducement or reward for doing or not doing an act or showing favour or disfavour is an offence under Section 4 of POBO, even if the offering, soliciting or accepting occurs out - side Hong Kong. On the other hand, although Section 9 of POBO does not have extraterritorial effect, as explained in 2.1 Bribery, bribery of a foreign public official can be caught by Section 9 in circumstances where “a substantial measure of the activities constituting a crime” takes place in Hong Kong.
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