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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Prevention of Bribery Ordinance
Generally speaking, the offer, solicitation or acceptance of an advantage as a reward or inducement for or otherwise on account of someone (not) doing an act or showing (dis)favour constitutes an offence (subject to certain exceptions).
Public sector bribery offences
Undertaking the following acts without lawful authority or reasonable excuse is an offence:
- offering an advantage to a public servant (or, as a public servant, soliciting or accepting an advantage) as an inducement or reward or otherwise on account of the public servant (not) performing or influencing the performance of any act in his or her capacity as a public servant, or influencing any business transaction between any person and a public body (Section 4);
- soliciting or accepting an advantage as an inducement or reward or otherwise on account of the public servant giving assistance in connection with a contract with, the withdrawal of a tender for or an auction conducted by or on behalf of a public body (Sections 5, 6 and 7); and
- offering an advantage to a prescribed officer (a type of public servant) while having dealings with the relevant government department (Section 8).
A number of offences are not remedied by lawful authority or a reasonable excuse. These concern public sector bribe recipients only.
Private sector bribery offences
These are found in Section 9 and address the bribery of ‘agents’. In a business context, the principal is regarded as the employer and the agent is regarded as the employee. Section 9 is intended to prohibit conduct that may undermine the integrity of the principal-agent relationship – in particular the receipt by an agent of advantages from third parties without the principal's knowledge and secret attempts by third parties to corrupt or influence an agent.
Offences include, without lawful authority or reasonable excuse, offering an advantage to an agent (or, as an agent, soliciting or accepting an advantage) as an inducement or reward or otherwise on account of the agent (not) performing an act or (dis)favouring any person in relation to his or her principal’s affairs or business.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Three particular features of the Prevention of Bribery Ordinance affect the offer and receipt of gifts, entertainment, travel and training:
- Where the recipient is duly authorised, usually no offence is committed by either the offeror or recipient.
- The Prevention of Bribery Ordinance specifically carves out the provision of food and drink-based entertainment as a permissible exception.
- If given in a purely private or personal context (ie, not on account of the recipient's role or office), the benefit is unlikely to contravene the Prevention of Bribery Ordinance.
Outside these circumstances, offering such benefits as a direct reward or to develop goodwill and retain a general favourable disposition has the potential to violate the Prevention of Bribery Ordinance.
The surrounding circumstances must always be assessed to determine whether gifts, hospitality, travel and training are in fact bribes. The Prevention of Bribery Ordinance and the Banking Ordinance provide no de minimis exceptions and it is unlikely that the 'triviality' of a benefit would prevent it from being judged to be an advantage. Factors to take into account in determining whether an advantage constitutes a bribe include:
- the purpose of the benefit;
- the value and frequency of the benefit (lavish or extravagant benefits are red flags);
- whether the benefit is equally offered to others or just the recipient in question;
- the relationship between the offeror and the recipient – in particular, if there are official dealings between them (in the public sector, gifts, hospitality and other benefits should not be accepted or authorised in such circumstances); and
- the recipient's position and role (eg, gifts from subordinates in particular are often discouraged or not permitted in the public sector).
In relation to the public sector, further rules and guidance apply. The Hong Kong Civil Service Bureau (CSB) has published a number of civil service regulations which set out relevant anti-bribery provisions and disciplinary actions arising for public servants in breach. Civil Service Regulation 444 states that advantages offered to an officer (or his or her spouse) by virtue of the officer's official position or on an occasion attended in the officer's official capacity are regarded as advantages to the officer's department and must be dealt with in accordance with civil service regulation protocols (usually polite rejection of the advantage). A number of CSB circulars set out further principles for public servants, notably Civil Service Bureau Circular 4/2007 (which deals with advantages offered when acting in an official capacity).
Prescribed officers are also subject to the Acceptance of Advantages (Chief Executive’s Permission) Notice 2010. Prescribed officers are prohibited under Section 3 of the Prevention of Bribery Ordinance from soliciting or accepting advantages without the general or special permission of the Hong Kong chief executive. The notice addresses four restricted advantages (gifts of money or in kind, discounts, loans and travel) and contains certain permissions in this regard. Outside these categories, prescribed officers can accept all other advantages in a private capacity. Acceptance of advantages in an official capacity is usually prohibited, but may be approved in certain circumstances under Circular 4/2007.
Finally, the Civil Service Code and the Civil Servant's Guide to Good Practices contain core values of conduct, integrity and impartiality, as well as specific provisions on the acceptance of advantages by public servants.
Although these regulations, circulars, notices and codes are not binding on those who offer advantages, they nevertheless provide helpful guidance on how the government and the CSB interpret the Prevention of Bribery Ordinance and the restrictions under which public servants operate. This in turn provides guidance on the type of benefits that it may be acceptable to offer.
There is limited external guidance on bribery in the private sector. However, most companies have internal anti-bribery guidelines with which their employees must comply. The Independent Commission Against Corruption has made available a non-binding Sample Code of Conduct for private companies to adopt. This includes carve-outs for the acceptance of specific benefits recognised by law and, outside this, a procedure for seeking permission from an appropriate principal. The Sample Code of Conduct states that permission should be declined if acceptance could "affect his/her objectivity in conducting the company's business or induce him/her to act against the interest of the company, or acceptance will likely lead to a perception or allegation of impropriety".
What are the rules relating to facilitation payments?
The Prevention of Bribery Ordinance does not permit facilitation payments and does not provide a statutory defence on a de minimisbasis. The ordinance prohibits advantage to 'expedite' the performance of a public function.
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