Domestic bribery

Legal framework

Describe the individual elements of the law prohibiting bribery of a domestic public official.

For a definition of domestic public officials, see question 26.

Scope of prohibitions

Does the law prohibit both the paying and receiving of a bribe?

The law prohibits both the offering (paying) and accepting (receiving) of a bribe.

Definition of a domestic public official

How does your law define a domestic public official, and does that definition include employees of state-owned or state-controlled companies?

Public servant is the local term for a (domestic) public official.

POBO defines public servants as meaning (i) prescribed officers (ie, any person holding an office of emolument under the Hong Kong Special Administrative Region government and certain others including, inter alia, the Monetary Authority, Chairman of the Public Service Commission, any member of staff of the ICAC and judicial officers); and (ii) employees of public bodies, which include the government; the Executive Council; the Legislative Council; any District Council; any board, commission, committee or other body appointed by or on behalf of the Chief Executive or the Chief Executive in Council; and any board, commission, committee or organisation set out in Schedule 1 to POBO. It is important to note that the list in Schedule 1, which is amended from time to time, contains more than 100 entities and includes a number of private companies that carry out public functions.

Moreover, an employee of a ‘public body’ is taken to include, in the case of certain public bodies, a member or officer of that body, although the mere holding of shares by a person in a company that is a public body, or entitlement to vote at meetings of a club or association that is a public body, does not of itself render that person a ‘public servant’.

Gifts, travel and entertainment

Describe any restrictions on providing domestic officials with gifts, travel expenses, meals or entertainment. Do the restrictions apply to both the providing and the receiving of such benefits?

The restrictions apply to both providing and receiving such benefits.

Facilitating payments

Have the domestic bribery laws been enforced with respect to facilitating or ‘grease’ payments?

POBO does not permit facilitation payments and does not provide a statutory defence on a de minimis basis. The Ordinance prohibits providing an advantage to ‘expedite’ the performance of a public function.

Public official participation in commercial activities

What are the restrictions on a domestic public official participating in commercial activities while in office?

There are general restrictions on domestic public officials acting in office under POBO. However, there are no specific provisions under POBO restricting domestic public officials’ participation in commercial activities while in office.

As stated in the Integrity and Corruption Prevention Guide on Managing Relationship with Public Servants published by the ICAC, public officials are required at all times to avoid or declare, as appropriate, any conflict of interest that may arise or has arisen. All serving public officials are subject to outside work control. They must obtain prior permission before taking up any paid outside work, or any outside work during working hours. Unpaid outside work out of normal working hours that may constitute any conflict of interest also requires prior approval.

As a general rule, government officials are required to decline sponsorship of official visits offered by private commercial organisations.

Payments through intermediaries or third parties

In what circumstances do the laws prohibit payments through intermediaries or third parties to domestic public officials?

Indirect bribery through intermediaries is prohibited. POBO regulates the indirect offer and receipt of advantages and the person accepting them may take them ‘for himself or for any other person’. Thus, it is an offence to offer an advantage to a third party (eg, a relative) with the intention to influence a public servant or private sector employee. Associated persons, such as agents or facilitating parties, will not be liable unless they have aided, abetted, counselled or procured a principal offence.

Individual and corporate liability

Can both individuals and companies be held liable for violating the domestic bribery rules?

Yes. The definition of ‘person’ in Hong Kong legislation includes both individuals and companies. As such, companies can technically be found liable for violating POBO offences.

In practice, however, most prosecutions target individuals, whereas companies are more likely to be subject to regulatory action or enforcement action (such as search and seizure notices). This is because the offence of bribery requires human actors, and it is rather difficult to establish corporate liability for bribery without an express corporate offence or corporate penalty regime.

Private commercial bribery

To what extent does your country’s domestic anti-bribery law also prohibit private commercial bribery?

POBO specifically prohibits private commercial bribery. It is an offence for an agent to solicit or accept (or for a person to offer to the agent) any advantage without the permission of that agent’s principal when the agent is conducting his or her principal’s affairs or business (section 9, POBO). ‘Agent’ includes any person employed by or acting for another and does not necessarily require a legal, contractual or fiduciary obligation.

Defences

What defences and exemptions are available to those accused of domestic bribery violations?

Defence

With limited exceptions, a defence where a public servant is acting with ‘lawful authority or reasonable excuse’ can be used. The burden of proof lies with the accused to demonstrate that he or she has either lawful authority or reasonable excuse with respect to the offer or receipt of an advantage. Neither ‘lawful authority’ nor ‘reasonable excuse’ are defined in POBO. Lawful authority generally concerns disclosure of and permission to receive the advantage in question. Reasonable excuse has been narrowly construed by the courts and is of very limited application in practice.

Exemption

‘Entertainment’ is not an ‘advantage’ under POBO and the acceptance of entertainment does not violate POBO.

Agency enforcement

What government agencies enforce the domestic bribery laws and regulations?

The ICAC is charged with enforcement of bribery laws, both foreign and domestic.

Patterns in enforcement

Describe any recent shifts in the patterns of enforcement of the domestic bribery rules.

The ICAC continues to focus primarily on private sector cases. In 2018, approximately 66 per cent of corruption complaints received by the ICAC concerned the private sector and approximately 77 per cent of individuals prosecuted were involved in private sector corruption or related offences.

In addition, there has been increased collaboration between the ICAC and other regulatory bodies, including the SFC. For instance, six individuals, including former senior executives of Convoy Global Holdings Limited, a Hong Kong-listed company providing financial advisory services, were charged with conspiracy to defraud in May and July 2019, following a landmark joint investigation by the ICAC and the SFC into suspected corruption offences. In June 2019, a separate operation was conducted jointly by the ICAC and the SFC in which two sponsor firms were searched and employees of the Listing Department of the Hong Kong Exchanges and Clearing Limited were arrested for suspected corruption in relation to the listing application vetting process of two now-listed companies. The ICAC and the SFC have since entered into a memorandum of understanding to formalise the framework for joint investigations and sharing of information between the two authorities.

Prosecution of foreign companies

In what circumstances can foreign companies be prosecuted for domestic bribery?

See question 11 for a discussion on corporate liability generally.

Although the domestic bribery laws apply equally to both domestic and foreign companies, their extraterritorial reach do not extend beyond the geographical boundary of Hong Kong unless there are clear words to the contrary.

For example, section 4 of POBO (the main provision on the bribery of domestic public officials) expressly prohibits the bribery of a public servant by any person regardless of whether the prohibited act is carried out ‘in Hong Kong or elsewhere’. Section 9 (the main provision on private commercial bribery), on the other hand, does not have wording to that effect and on this basis the court has held in the Krieger case that section 9 prohibits only bribery that take places within Hong Kong.

Sanctions

What are the sanctions for individuals and companies that violate the domestic bribery rules?

The maximum penalties for offences in POBO are as follows (section 12, POBO):

  • for possession of unexplained property: a fine of HK$1 million and imprisonment for 10 years;
  • for bribery for giving assistance in regards to contracts or for bribery for procuring withdrawal of tenders: a fine of HK$500,000 and imprisonment for 10 years; and
  • for any other offence, including the broader offence of bribery: a fine of HK$500,000 and imprisonment for seven years.

A court can, if it is in the public interest, also order that a convicted person is prohibited from taking or continuing employment, whether paid or unpaid, for up to seven years.

The POBO contains provisions for restitution of unlawfully obtained property and a special confiscation of assets regime.

Recent decisions and investigations

Identify and summarise recent landmark decisions and investigations involving domestic bribery laws, including any investigations or decisions involving foreign companies.

The Stephen Chan case (2017): the Court of Final Appeal has provided important clarifications on scope of the private commercial bribery offence (section 9 of POBO). Stephen Chan was the general manager of TVB, a TV broadcaster, and hosted a show called Be My Guest in 2009. Chan performed a side-show of Be My Guest during a countdown event at a shopping mall for HK$112,000 without TVB’s express consent. Chan was charged with, and was convicted of, accepting an unlawful advantage under section 9 of POBO. On appeal, the Court of Final Appeal quashed Chan’s conviction on the ground that Chan’s appearance on the side-show was not an act ‘in relation to his principal (TVB)’s affairs or business’, a key element of the offence, because, on the facts, it was not intended to harm the bond of trust and loyalty between the principal and agent. It was held that conduct adverse to the principal’s interests is required in establishing an offence under section 9 of POBO.

The Convoy prosecutions (2019): the ICAC and the SFC mounted their first reported joint operation in December 2017 in which eight premises were searched and executive directors of Convoy Global Holdings Limited, a financial advisory firm listed in Hong Kong, were arrested for potential breaches under POBO. The joint investigation has resulted in the recent prosecution of six individuals for conspiracy to defraud in relation to the Convoy group’s acquisition of an investment company at a consideration of over HK$89 million and a bond offering where over HK$49.6 million was paid as commission for placement of bonds via an intermediary to a brokerage firm. Senior executives of Convoy Global Holdings Limited were alleged to have concealed their interests in these transactions from the Stock Exchange of Hong Kong Limited, Convoy Global and its board of directors and shareholders. Trial is scheduled to take place in May 2020.