jurisdiction

Hong Kong
Source of law Prevention of Bribery Ordinance (Cap. 201) (“POBO”) 
Offence 

A. Public Sector 

Soliciting or accepting an advantage (s3) 

  • any prescribed officer 1 , without the general 2 or special permission of the Chief Executive, solicits or accepts any advantage 3 .  

Bribery (s4) 

  • any person offers to a public servant 4  (or the Chief Executive), or any public servant (or the Chief Executive) solicits or accepts, an advantage as an inducement or reward for performing, abstaining from performing, delaying, hindering, expediting, etc. any act or act of another public servant; or assisting, favouring, hindering or delaying, etc any person in the transaction of any business with a public body 5.   

Bribery for giving assistance, etc re contracts (s5) 

  • any person offers to a public servant, or any public servant solicits or accepts, an advantage as an inducement or reward for assistance in relation to any contract or subcontract involving a public body  

Bribery for procuring withdrawal of tenders (s6) 

  • any person offers, solicits or accepts an advantage to/from another person as an inducement or reward for withdrawal of a tender or refraining from making a tender for any contract with a public body 

Bribery re auctions (s7) 

  • any person offers, solicits or accepts any advantage as an inducement or reward for refraining from bidding at any auction conducted by or on behalf of a public body  

Bribery of public servants by persons having dealings with public bodies (s8) 

  • any person who, while having dealings of any kind with the government or other public body, offers any advantage to any prescribed officer or public servant. 

Possession of unexplained property (s10) 

  • any prescribed officer (or the Chief Executive) maintains a standard of living or has assets not commensurate with their official emoluments.  

B. Private Sector 

Corrupt transactions with agents (s9) 

  • an agent solicits or accepts, or any person offers to an agent, any advantage as an inducement to or reward for doing or forbearing from doing any act, or favouring or disfavouring any person in relation to his/her principal’s affairs or business 
The bribe  
Is there a presumption that the advantage was given/received corruptly? 

No, but:  

  • any prescribed officer who solicits or accepts any advantage (without the general or special permission of the Chief Executive) shall already be guilty of an offence (s3).  
  • any person, while having dealings of any kind: (i) with the Government; or (ii) with any other public body, offers any advantage (i) to any prescribed officer employed in that department, office or establishment of the Government; or (ii) to any public servant employed by that public body respectively (without lawful authority or reasonable excuse) shall already be guilty of an offence (s8).  
Would facilitation payments be caught? Yes
Would corporate hospitality be caught? 

Depends 

Entertainment (defined to mean “the provision of food or drink, for consumption on the occasion when it is provided, and of any other entertainment connected with, or provided at the same time as, such provisions”) is specifically exempted from the definition of “advantage” under s2(1) concerning offences under POBO.  

Government officers should not accept lavish, or unreasonably generous or frequent entertainment, or any entertainment likely to create a  conflict of interest, compromise their impartiality or judgement, or bring them or the public service into disrepute. 6

N.B. “entertainment” is narrowly defined, e.g. ticket to a performance or sport event and hotel accommodation, would be an “advantage”, not “entertainment” under POBO. 

Is there any de minimis? No
Does the bribe have to be monetary? No 
Public officials  
Does the offence only apply to bribing public officials? No(s9 applies to bribery in private sector) 
Acts performed outside Hong Kong   
Can bribery performed outside Hong Kong be caught? Yes (for bribery of public servant/the Chief Executive under s4 
Does the act also need to be illegal in the foreign country of performance? No
Who can be liable?  
Hong Kong nationals? Yes
Hong Kong company? Yes (yes theoretically, as “any person” includes any public body and any body of persons, corporate or incorporate 7 .  In reality, investigation and charges are normally made against individuals) 
Hong Kong partnership (including limited liability partnerships) incorporated? Yes
Director of Hong Kong company? Yes 
Hong Kong company if the bribe is committed abroad by its foreign subsidiary? 

No (assuming that there is no piercing of corporate veil)  

 

Foreign subsidiary of a Hong Kong company if the bribe is committed abroad? Yes (for bribery of public servant/the Chief Executive under s4) 
Foreign national/company/partnership if bribe is committed in Hong Kong? Yes 
Foreign national domiciled or “ordinarily resident” in Hong Kong if bribe is committed outside Hong Kong? Yes (for bribery of public servant/the Chief Executive under s4) 
Foreign company/partnership if bribe is committed abroad? Yes (for bribery of public servant/the Chief Executive under s4) 
Penalties  
Penalties include: 
  1. Fine and/or imprisonment 
    1. s3 offence: up to fine of HK$100,000 and imprisonment for 1 year. 
    2. ss4, 7, 8 and 9 offence: up to fine of HK$500,000 and imprisonment for 7 years.  
    3. ss5 and 6 offence: fine of HK$500,000 and imprisonment for 10 years.  
    4. s10 offence: up to fine of HK$1,000,000 and imprisonment for 10 years
  2. Restitution orders to the amount or value of any advantage received. 
  3. Confiscation of assets (for an offence of possession of unexplained property under s10(1)(b)) 
Defences  
Are there any defences available? 

Yes (Except offences under ss 3 and 10, all the other offences under POBO are subject to the defence of “lawful authority or reasonable excuse”, e.g. permission obtained from employer / principal (s4(3) and s9(4)).  

For a s3 offence, general or special permission obtained from the Chief Executive is a defence. 

For a s10 offence, a “satisfactory explanation” as to how the prescribed officer / the Chief Executive was able to maintain such a standard of living or how such pecuniary resources or property came under his/her control constitutes a defence. 

N.B. It is no defence that: 

  • the person accused did not actually have the power, right or opportunity so to do or forbear, accepted the advantage without intending so to do or forbear; or he did not in fact so do or forbear (s11) 
  • such advantage is customary in any profession, trade, vocation or calling (s19)