HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
abilities, that they honestly and reasonably, but mistakenly, believed that they had the general or special permission of the chief executive to accept the advantage in question. For an offence under Section 10 of POBO (unex - plained wealth), it is a defence for the accused to provide a satisfactory explanation as to how they were able to maintain the relevant standard of living or how the relevant pecuniary resources or property came under their control. In relation to the obligation to keep accounting records pursuant to Section 373 of CO, a director of the company in question may be liable for fail - ing to take all reasonable steps to secure com - pliance with such obligation, but it is a defence for the director to establish that they had reason - able grounds to, and did in fact, believe that a competent and reliable person was charged with the duty of ensuring compliance and was in a position to discharge that duty. 4.2 Exceptions There are no exceptions to the defences outlined in 4.1 Defences . 4.3 De Minimis Exceptions POBO does not contain any de minimis excep - tion. However, according to the Prosecution Code of the Department of Justice (the “Prose - cution Code”) – which is a set of statements and instructions to guide prosecutors in conducting prosecutions – in deciding whether to prosecute, consideration will be given to factors such as “the seriousness of the offence” and “whether or not the offence is trivial”. Therefore, in practice, prosecution may not be brought for a bribery offence that involves a bribe of a very low or nominal level, but that is not to say this would never occur. In 2009, a director of a construction company was successfully prosecuted for brib -
ing police officers with 15 boxes of mooncakes, a relatively low-value gift that is customarily given to relatives, friends and clients during the
Mid-Autumn Festival in Hong Kong. 4.4 Exempt Sectors/Industries
No sector or industry is exempt from the brib - ery offences under POBO. Further, Section 19 of POBO specifically states that it shall not be a defence for a bribery offence under POBO to show that the advantage in question is custom - ary in any profession, trade, vocation or calling. 4.5 Safe Harbour or Amnesty Programme There is no safe harbour or amnesty programme for bribery offences under POBO based on self- reporting, adequate compliance procedures or remediation efforts. In practice, self-reporting and voluntary co-operation with the authorities are significant mitigating factors that could lead to a decision not to prosecute. If the decision is made to prosecute and the person is convicted, they could rely on such conduct in mitigation to seek a reduced sentence. Further, pursuant to the Prosecution Code, in exceptional circumstances, a witness or inform - er may be granted immunity from prosecution. Ordinarily, this would require that the evidence given by the witness or informer be necessary to secure the conviction of a person with a higher level of involvement in the relevant offence (as compared with the witness or informer), and that such evidence is not available elsewhere. Finally, Section 23 of POBO stipulates the cir - cumstances in which a suspect of a corruption offence may be granted immunity from pros - ecution. Where a written request is made by the Secretary for Justice, the court may inform any person accused or suspected of a corruption offence that, if they give full and true evidence or
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