1. Bribery in the home (private to public)
1.1 The Legal Environment
Corruption and bribery are considered the same offense in Hong Kong.
Agents and/or employees of public bodies or private bodies that perform a public function (a) Civil servants of the Hong Kong government (b) Agents and/or employees of public bodies or private entities that perform a public function.
1.2 What does bribery mean?
Both private individuals and government employees are capable of committing the crime. Bribery occurs when a person, whether in Hong Kong or elsewhere, offers an advantage to a public servant as an inducement or reward for that public servant.
When public servants (including civil officials, agents, and employees of public bodies) solicit or take any advantage in the above-mentioned circumstances, whether in Hong Kong or elsewhere, they commit the offense. Civil officials who seek or accept any benefit without the consent of the Chief Executive are also breaking the law.
1.3 What does it mean to be a public official?
In the POBO, the term “public servant” is used to describe a public official. Any specified official or employee of a public body is referred to as a public servant. Employees of the government, the Executive Council, the Legislative Council, any District Council, and any board or body nominated by or on behalf of the Chief Executive of Hong Kong are all included in this description. There are 119 public bodies listed in the POBO as of this writing.
1.4 Bribery and its Consequences
Individuals who bribe public servants and public servants face the same penalties under the POBO. The following are some of the penalties:
A maximum sentence of ten years in prison and a fine of HKD 500,00015
Compensation for the value of any advantage received, as determined by the court
Prohibiting the convicted individual from working or becoming a director for a period of up to seven years
1.5 Contributions from politics
An election donation within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (Chapter 554) (“ECICO”), the details of which are submitted in an election return in compliance with the ECICO, is not included in the definition of “advantage.” Payments or contributions made to entice officials to do activities that they are normally compelled to execute, on the other hand, would be reviewed under the POBO to see if they constitute an advantage.
The Independent Commission Against Corruption (ICAC) is in charge of enforcing the ECICO, which strives to protect honesty and prohibit corrupt and illegal behaviour in public elections. When a political candidate utilizes election funds for anything other than fulfilling his election expenditures or promoting his campaign, he is guilty of corruption.
Candidates must give their contributors a receipt if the donation exceeds HKD 1,000, and they are forbidden from using the donation if the donor’s name and address are unknown.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
The POBO does not set quantitative limits on hospitality expenses, which would be evaluated to see if they qualify as a benefit under the POBO. Gifts, travel expenses, red packets, tea money, and other similar favors could all be considered advantages.
In terms of presents, the Chief Executive has given civil officials broad freedom to accept particular forms of benefits. Civil workers can accept (but not solicit) a gift from a close personal friend worth no more than HKD 3,000 on each occasion where gifts are typically presented (such as a wedding or retirement), and no more than HKD 500 on any other occasion. The restrictions for gifts from people who aren’t close friends are HKD 1,500 and HKD 250, respectively. Furthermore, such presents must be provided to the civil servant in his personal capacity, and the sender must have no official ties to the department or organization where the civil servant works. Civil servants can also seek or accept presents from family, friends, and business associates (but only in their private capacity where the advantage applies on equal terms to non-civil servants and the giver has no official dealings with the civil servant). There are no monetary restrictions when it comes to such donations. Other forms of gifts will require clearance from civil servants.
The provision of food or drink for consumption on the occasion when it is provided, as well as any other amusement related with, or supplied at the same time as, such provisions, are specifically excluded from the POBO’s definition of an advantage. Civil officials, on the other hand, are bound by rules prohibiting lavish or excessively generous or frequent entertaining that could cause embarrassment in the performance of official tasks or bring the public service into discredit.
2. Bribery in the home (private to private)
2.1 The Legal Environment
Bribery in the private sector is prohibited under Section 9 of the POBO. Section 9 lacks extraterritoriality when the benefit is not offered, solicited, or accepted in Hong Kong, even if the offer was planned in Hong Kong.
2.2 What is bribery in the private sector?
Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage without the permission of his principal as an inducement to, or reward for: (a) doing or forbearing to do any act in relation to his principal’s affairs or business; or (b) showing or forbearing to show favor or disfavour to any person in relation to his principal’s affairs or business;
In the same way, anyone who offers an agent any benefit as an enticement or incentive in the aforementioned circumstances commits a crime.
A “public servant” and “any individual engaged by or acting for another” are both considered “agents.” In a 2016 Court of Final Appeal ruling, the court held that it is not essential to have a pre-existing legal, contractual, or fiduciary obligation to act in connection to another’s affairs or company in order to become an agent of that person. It wasn’t even essential for there to be a request for action. A person who is in a position to act on behalf of another and does so freely may be assuming fiduciary responsibilities.
The question of whether the private bribery provision applied where an advantage is offered in Hong Kong but the offeree is a public official of a place outside Hong Kong, and the act or forbearance concerned his public duties in that place outside Hong Kong was addressed in a 2009 Court of Final Appeal decision. In that case, the chairman of a Hong Kong firm conspired with others to offer a public official of a foreign jurisdiction benefits in Hong Kong in exchange for the public official’s aid in that foreign jurisdiction. When exercising his public obligations in the foreign jurisdiction, the relevant public official was functioning as an agent in respect to his principal’s affairs, according to the court.
Bribery can also be performed privately without the promise of a benefit. Any agent who utilizes any receipt, account, or document with the aim to deceive his principal is in violation of section 9(3) of the POBO.
(a) in which the principal is engaged (b) that contains any statement that is untrue, erroneous, or faulty in any material particular; and (c) that is designed to deceive the principle to his knowledge.
When the defendants in the 2016 Court of Final Appeal decision29 cited above signed a false declaration in a board resolution in which the principle was involved, they were found guilty of a conspiracy to commit an offense under section 9(3).
2.3 Private bribery’s ramifications
Private individuals are subject to the following penalties under the POBO:
Up to seven years in prison and a fine of up to HKD 500,000 (b) Payment of the fair market value of any benefit obtained, as determined by the court
Prohibiting the convicted individual from working or becoming a director for a period of up to seven years.