HONG KONG Law and Practice Contributed by: Gareth Hughes, Emily Lam, Philip Rohlik and Tiffany Wu, Debevoise & Plimpton LLP
Other Penalties A person who, without reasonable excuse, fails to comply with the requirements of Section 51C of the Inland Revenue Ordinance to keep suffi - cient records of income and expenditure is liable on conviction to a maximum fine of HKD100,000. The Court may further order the person to per - form the act that they failed to perform within a specified period of time. The offence of false accounting under Section 19 of the Theft Ordinance is punishable on con - viction upon indictment to imprisonment for up to ten years. Regulatory Consequences Where any person regulated by the SFC com - mits any of the foregoing offences, such person is likely to be regarded as having engaged in misconduct and/or to be viewed by the SFC as being not a fit and proper person to be – or to remain – a regulated person, which may result in the SFC taking the following disciplinary action: • revocation of licence; • suspension of licence; • revocation of approval granted to act as a responsible officer; • public or private reprimand; • prohibition to be, or to apply to be, licensed/ registered as a responsible officer; and/or • a pecuniary penalty of up to HKD10 million, or three times the amount of profit gained or loss avoided as a result of the misconduct. 5.2 Guidelines Applicable to the Assessment of Penalties When imposing a sentence on a person convict - ed of bribery or corruption under POBO, Hong Kong courts are generally guided by the follow - ing sentencing principles derived from case law.
• Distinguish between the culpability of offend - ers and award discounts where they are warranted, having regard to the maximum penalty. • Treat the giver and receiver of a bribe as equally culpable in ordinary cases unless the circumstances justify different treatments. • No distinction is made in principle between the culpability of private and public sector corruption. • It is a norm to impose an immediate custo - dial sentence unless there are special cir - cumstances for imposing some alternative sentence. • For minor cases of corruption, the starting point is 12 months’ imprisonment, which can be reduced on mitigation. • Suspension of a custodial sentence and the making of a community service order are alternatives to a sentence of immediate imprisonment, and they will only be imposed in a corruption case if exceptional circum - stances exist. • Higher sentences may be imposed for multi - ple or repeated offences. There is no general legal duty to disclose or report known or suspected corruption or brib - ery to law enforcement bodies in Hong Kong. However, financial institutions and their direc - tors, staff and auditors may be required under particular local legislation or regulations to dis - close corrupt activities to the relevant regulators. Further, under Section 25A of the OSCO, any person who knows or suspects that any prop - erty, in whole or in part, directly or indirectly rep - resents any person’s proceeds of, or was used 6. Disclosure Processes 6.1 Disclosure Obligations
197 CHAMBERS.COM
Powered by FlippingBook