Lex Mundi Global Anti-Corruption Compliance Guide |
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Hong Kong |
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| (Asia Pacific) Firm Deacons Updated 09 Feb 2020 | |
| What is the key anti-bribery and corruption legislation in your jurisdiction? | The key legislation covering bribery and corruption is the Prevention of Bribery Ordinance (Cap. 201) (the “Ordinance”), which targets two main types of behavior:
The Ordinance also incriminates the solicitation or acceptance of advantages. The common law offense of misconduct in public office also covers bribery or corrupt behavior of public servants. |
| Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years? | No. Bribery has been an offense in Hong Kong since 1898. The Ordinance was enacted, largely in its current guise, in 1971. |
| Is a bribe payment to domestic government officials prohibited by the legislation? | Yes. The Ordinance contains specific offenses targeting bribery in relation to public servants. According to Sections 4 and 5 of the Ordinance, it is an offense for any person to, without lawful authority or reasonable excuse, offer any advantage to a public servant as an inducement to or reward for or on account of his:
A government official is also an agent of the Hong Kong Government. Therefore the provision incriminating corrupt transactions with agents also apply to this scenario. |
| Is a bribe payment to foreign government officials prohibited by the legislation? | The Ordinance does not contain specific provisions targeting bribery in relation to foreign government officials and foreign government officials do not fall within the definition of “public servant” under the Ordinance. However, foreign government officials may be deemed as an agent for the foreign government. In such circumstances, bribery of foreign government officials may be governed by the relevant provision incriminating corrupt transactions with agents. |
| Is requesting or accepting a bribe prohibited by the legislation? | Yes. The Ordinance also prohibits passive bribery or passive corruption. Section 3 specifically prohibits government officials from soliciting or accepting advantage, regardless of whether he is doing so with the expectation that he should return any favor. |
| Who is subject to the legislation? | The Ordinance applies to both natural and legal persons. |
| Is there criminal liability for corporate entities who have either paid or accepted a bribe payment? | Yes, a company can be held criminally liable for paying or accepting bribes. |
| What is the penalty for individuals violating the law? | Depending on the provision breached, the maximum penalty is a fine of HK$1,000,000 and imprisonment for ten years. The court may also order the individual to pay to such person or public body the amount or value of any advantage received by him. The court may further make a prohibition order against the individual in relation to his employment. For example, an individual who was previously employed by a corporation or public body may be prohibited from being employed as a director or manager of that corporation or any public body. Any such prohibition order can at most last for seven years. |
| Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law? | The Ordinance does not distinguish between a corporate entity and an individual. Therefore a corporate entity is subject to a maximum fine of HK$1,000,000. Further, pursuant to Section 101E of the Criminal Procedure Ordinance (Cap. 221), if the offense is committed with the company’s director’s consent or connivance, the director will be guilty of a like offense and he will therefore also be subject to a maximum fine of HK$1,000,000 and imprisonment for ten years. |
| Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense? | The Ordinance does not recognize such defense. |
| Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities? | The Ordinance is enforced by the Hong Kong Independent Commission Against Corruption. There is currently no published guideline or policy regarding deferred prosecution agreement or leniency agreement. An early guilty plea will usually warrant a one-third discount in penalty. |
Lex Mundi Global Anti-Corruption Compliance Guide
The key legislation covering bribery and corruption is the Prevention of Bribery Ordinance (Cap. 201) (the “Ordinance”), which targets two main types of behavior:
- Bribery, which refers to the offering of advantage to a person as an inducement to or reward for, or on account of his performance of or abstention of performance from a particular act; the Ordinance only targets bribery of public servants or bribery in relation to public tenders or auctions; (see Sections 4 to 8 of the Ordinance).
- Corrupt transactions with agents, which refers to the offering of advantage to an agent as an inducement to or reward for or on account of his action or inaction in relation to his principal’s affairs or business. (see Section 9 of the Ordinance).
The Ordinance also incriminates the solicitation or acceptance of advantages.
The common law offense of misconduct in public office also covers bribery or corrupt behavior of public servants.
No. Bribery has been an offense in Hong Kong since 1898. The Ordinance was enacted, largely in its current guise, in 1971.
Yes. The Ordinance contains specific offenses targeting bribery in relation to public servants.
According to Sections 4 and 5 of the Ordinance, it is an offense for any person to, without lawful authority or reasonable excuse, offer any advantage to a public servant as an inducement to or reward for or on account of his:
- performing or abstaining from performing any act in his capacity as a public servant;
- expediting, delaying, hindering or preventing the performance of an act;
- assisting, favoring, hindering or delaying any person in the transaction of any business with a public body;
- giving assistance or using influence in the promotion, execution, or procuring of any contract with a public body; or giving assistance or using influence in the payment of the price or other money under such contracts.
A government official is also an agent of the Hong Kong Government. Therefore the provision incriminating corrupt transactions with agents also apply to this scenario.
The Ordinance does not contain specific provisions targeting bribery in relation to foreign government officials and foreign government officials do not fall within the definition of “public servant” under the Ordinance.
However, foreign government officials may be deemed as an agent for the foreign government. In such circumstances, bribery of foreign government officials may be governed by the relevant provision incriminating corrupt transactions with agents.
Yes. The Ordinance also prohibits passive bribery or passive corruption. Section 3 specifically prohibits government officials from soliciting or accepting advantage, regardless of whether he is doing so with the expectation that he should return any favor.
The Ordinance applies to both natural and legal persons.
Yes, a company can be held criminally liable for paying or accepting bribes.
Depending on the provision breached, the maximum penalty is a fine of HK$1,000,000 and imprisonment for ten years. The court may also order the individual to pay to such person or public body the amount or value of any advantage received by him.
The court may further make a prohibition order against the individual in relation to his employment. For example, an individual who was previously employed by a corporation or public body may be prohibited from being employed as a director or manager of that corporation or any public body. Any such prohibition order can at most last for seven years.
The Ordinance does not distinguish between a corporate entity and an individual. Therefore a corporate entity is subject to a maximum fine of HK$1,000,000.
Further, pursuant to Section 101E of the Criminal Procedure Ordinance (Cap. 221), if the offense is committed with the company’s director’s consent or connivance, the director will be guilty of a like offense and he will therefore also be subject to a maximum fine of HK$1,000,000 and imprisonment for ten years.
The Ordinance does not recognize such defense.
The Ordinance is enforced by the Hong Kong Independent Commission Against Corruption. There is currently no published guideline or policy regarding deferred prosecution agreement or leniency agreement.
An early guilty plea will usually warrant a one-third discount in penalty.