Hong Kong

Reviewed April 2015
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PUBLIC OFFICIALS
    What is the relevant test for each offence?
    • Bribing of prescribed officers

      Under the Prevention of Bribery Ordinance (Cap. 201), section 3, prescribed officers are prohibited from soliciting or accepting any advantage in their capacity as prescribed officers, without the Chief Executive’s1 approval.

      It is also an offence for prescribed officers to maintain a standard of living above that which is commensurate with their present or past remuneration or to be in possession of unexplained property or assets disproportionate to their present or past remuneration.

      Bribing of public servants

      Under the Prevention of Bribery Ordinance (Cap 201), sections 4(1) & (2A), it is an offence for any person, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, to offer any advantage to a public servant, including the Chief Executive, as an inducement to or reward for or otherwise on account of that public servant:

      performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant
      expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of an act, whether by that public servant or by any other
      public servant in his or that other public servant's capacity as a public servant, or
      assisting, favouring, hindering or delaying, or having assisted, favoured, hindered or
      delayed, any person in the transaction of any business with a public body. 

      Bribing of public servants in relation to contracts

      Under the Prevention of Bribery Ordinance (Cap 201), section 5(1) & (3), it is an offence for any person, without lawful authority or reasonable excuse, to offer an advantage to a public servant, including the Chief Executive, as an inducement to or reward for or otherwise on account of the public servant giving assistance or using influence in:

      the promotion, execution or procuring of:

      any contract with a public body for the performance of any work, the providing of any service, the doing of anything or the supplying of any article, material or
      substance, or
      any subcontract to perform any work, provide any service, do anything or supply any article, material or substance required to be performed, provided, done or supplied under any contract with a public body, or  

      the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract or subcontract.  

      Bribery for procuring withdrawal of tenders

      Under the Prevention of Bribery Ordinance (Cap 201), section 6(1) & (2), it is an offence for any person, without lawful authority or reasonable excuse, to solicit or accept or offer any advantage to any other person as an inducement to or a reward for the withdrawal of a tender, or the refraining from the making of a tender, for any contract with a public body for the performance of any work, the providing of any service, the doing of anything or the supplying of any article, material or substance.

      Bribery in relation to auctions

      Under the Prevention of Bribery Ordinance (Cap 201), section 7(1) & (2), it is an offence for any person, without lawful authority or reasonable excuse, to solicit or accept or offer any advantage to any other person as an inducement to or reward for or otherwise on account of that other person's refraining or having refrained from bidding at any auction conducted by or on behalf of any public body.

      In accordance with the Prevention of Bribery Ordinance (Cap 201), section 2:

      “Advantage” means:

      (a) any gift, loan, fee, reward or commission consisting of money or of any valuable security or of other property or interest in property of any description

      (b) any office, employment or contract

      (c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part

      (d) any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted

      (e) the exercise or forbearance from the exercise of any right or any power or duty; and any offer, undertaking or promise, whether conditional or unconditional, of any advantage within the meaning of any of the preceding paragraphs (a), (b), (c), (d) and (e),

      (f) but does not include certain donations given in connection with elections.

      “Entertainment” means 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.


      1. The “Chief Executive” is the head of the Hong Kong Special Administrative Region and leads the government of Hong Kong.
    Can corporates and individuals commit the offence?
    • Under the Interpretation and General Clauses Ordinance (Cap 1), section 3, the word “person” used in the relevant legislation includes individuals, any public body and any body of persons, corporate or unincorporated. Corporates can in theory commit the offence although there is no specific corporate offence of failing to prevent bribery. In practice, companies have not been pursued for bribery offences, and there is no evidence of an intention by prosecutors to pursue this avenue.

    Does the offence have extra-territorial effect?
    • Yes. The relevant legislation states that “any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement … shall be guilty of an offence.” 

      The Hong Kong Court of Appeal recognised that the legislative intention in including the phrase “whether in Hong Kong or elsewhere” was to encompass all forms of extra-territorial breaches as a reflection of a legitimate policy of the legislature to impose stricter controls over the conduct of public servants (HKSAR v Loi Hong Quan [2004] 3 HKC 497).

      If there is a “pre-existing meeting of minds within Hong Kong’s jurisdiction”, such agreement would amount to an offence even though the actual advantage is offered or accepted outside of Hong Kong (HKSAR v Loi Hong Quan [2004] 3 HKC 497 at 513I – 514B).  

      Furthermore, the offence of corrupt transactions with agents under section 9 of the Prevention of Bribery Ordinance (Cap 201) (see question 8) has been held to apply to foreign public officials.

      The Hong Kong Court of Final Appeal has held that it is an offence under section 9(2) of the Prevention of Bribery Ordinance (Cap 201) where an advantage is offered in Hong Kong to a foreign public official in relation to the performance of that official’s public duties outside of Hong Kong. It was also held that an agreement made in Hong Kong to offer an advantage in such circumstances is a conspiracy to carry out corrupt transactions with agents and so may be tried in Hong Kong (B v The Commissioner of The Independent Commission Against Corruption [2010] HKCFA 4).

    Are there any exceptions or defences?
    • If a public servant solicits or accepts an advantage with the permission of the public body of which he is an employee, then neither he nor the person who offered the advantage will be guilty of an offence. There is no similar defence available to prescribed officers.

      However, for the public body’s consent to be a defence, it must be in writing and given before the advantage is offered, solicited or accepted. Where an advantage has been offered or accepted without prior permission, the permission must be applied for and given as soon as reasonably possible after the offer or acceptance is made and will only be effective if the permission is given after the public body has regard to the circumstances in which it is sought.

    What are the penalties?
    • Under the Prevention of Bribery Ordinance (Cap 201), section 12(1), the Government has authority to order a person guilty of an offence under the Ordinance to pay the amount or value of any advantage received by him, the pecuniary resources, or the value of the property (a "disgorgement order").

      A person who offers any advantage to a public servant without lawful authority or reasonable excuse (section 3 of the Prevention of Bribery Ordinance) is liable on summary conviction to a fine of HK$100,000, imprisonment for one year and shall be subject to a disgorgement order.

      A person guilty of bribing public servants in relation to contracts or procuring withdrawal of tenders (sections 5 and 6 of the Prevention of Bribery Ordinance) is liable on summary conviction to a fine of HK$100,000, imprisonment for 3 years and a disgorgement order; and on conviction on indictment is liable to a fine of HK$500,000, imprisonment for 10 years and a disgorgement order.

      A prescribed officer maintaining a standard of living above that which is commensurate with his present or past official remuneration; or who is in control of pecuniary resources or property disproportionate to his present or past official remuneration (section 10(1) of the Prevention of Bribery Ordinance) is liable on summary conviction to a fine of HK$100,000, imprisonment for three years and shall be subject to a disgorgement order; and on conviction on indictment is liable to a fine of HK$1,000,000, imprisonment for ten years and a disgorgement order.

      A person guilty of other bribery offences under Part II of the Prevention of Bribery Ordinance is liable on summary conviction to a fine of HK$100,000, imprisonment for 3 years and a disgorgement order; and on conviction on indictment is liable to a fine of HK$500,000, imprisonment for 7 years and a disgorgement order.

    This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.