Offering of advantages

by Susana Ng, senior associate, Allen & Overy

Article contributed by Allen & Overy

Before sending seasonal gifts to business contacts or inviting them to a lavish dinner, companies must consider the implications of the anti-corruption laws.

The Prevention of Bribery Ordinance (PBO) governs both the public and the private sectors. In the private sector it is illegal for an employee to solicit or accept an advantage when conducting the affairs or business of his employer without the employer's permission. There are a number of cases that illustrate the implications of anti-bribery law.

In Ip Ping v. R, the defendant offered a sum of money to a public servant. The defendant claimed that the money was intended to be donated to a charity and was not a bribe. The Court held that even if the defendant had offered to make a payment of money to a charity and not to the public servant in question, he committed an offence if his intention was to create a good impression in the hope that the public servant would be influenced to give him special treatment in the course of duty.

It is important to note that it is an offence under section 8 of the PBO to offer any advantage to any employee of the government or public bodies without obtaining an appropriate approval. If there are no specific dealings with the government department or public bodies when the advantage is offered it may still be an offence as the PBO includes past or future dealings.

An advantage does not have to be of value to either the offeror or the offeree. In the Hong Kong case of Lawrence, the offer of complementary ferry tickets and accommodation in Macau was construed as an advantage even though it came free to the offeror.

However, the PBO specifically excludes "entertainment" from the scope of "advantage" for the purpose of the PBO. The word "entertainment" is defined as the provision of food or drink, for consumption on the occasion when it is provided and covers ancillary "entertainment" connected with, or provided at the same time as, the provision of food and drink, such as a dancing performance linked to a dinner.

In the case of R v. Tong Hiu Ming, the defendant was the owner of a small garage. Money was offered to a vehicle tester working in a government testing centre and there was no evidence of any testing going on or about to go on in respect of the defendant's vehicles. The defendant was nevertheless convicted under section 8(1) of the PBO for attempting to give HK$2,000 to the government vehicle tester. The conviction was upheld on appeal even though the trial magistrate accepted that the money was not intended as an inducement for future favours.

When facing a charge of corruption it is not a defence to claim that it is customary for advantages to be offered in that profession or trade. In the case of HKSAR v. Kung Lung Sing (2001), the appellant was convicted of 10 offences for accepting advantages in contravention of section 3 of the PBO. The advantages accepted by the appellant included money contained in red packets (which were given to him during Chinese New Year), household items (such as shampoo and toothpaste) and moon cake coupons (which were given to him during Mid-Autumn festivals). The appellant was convicted. An attempt was made by the appellant to challenge his conviction on, among other bases, the basis that it is a custom to accept such advantages during festival times. This was specifically rejected by the Court.

Q & A on corruption
Q1 What is an "advantage" under the PBO?
A1 The word "advantage" is widely defined in section 2 of the PBO. Examples of advantages include:
  • Any gift (in kind or in cash), loan, fee reward or commission consisting of money or of any valuable security or of other property;
  • Any office, employment or contract;
  • Any payment, release or discharge of loan, obligation or other liability (whether in whole or in part);
  • Any service or favour (other than entertainment);
  • The exercise or forbearance from the exercise of any right or any power or duty;
  • Any offer, undertaking or promise of any of the above advantage

Q2 Would it make a difference if the advantage was given to family members of the government servants, public servants, or employees of private companies?
A2 Section 2(2)(a) of PBO provides that a person offers an advantage if he (or any other person acting on his behalf), gives, affords or holds out any advantage to or for the benefit of any other person. Therefore, this would also apply to "advantages" given to the family members of government servants, public servants, or employees of private companies.

Q3 Would an employer be liable for corruption if his employee offered bribes to a business partner?
A3 In general, the principal offender of a crime is the perpetrator of the offence who, by his own act, brings about the crime. However, a person may be liable as a principal even though he was not physically present when the criminal act was committed. This may occur, for instance, where the offence is committed through the medium of an innocent agent. Further, a person who aids, abets, counsels or procures the commission of an offence by any other person is guilty of that offence and is liable to be tried and punished as a principal offender. Section 101E of the Criminal Procedure Ordinance provides that where a person by whom an offence under any ordinance has been committed is a company and it is proved that the offence was committed with the consent or connivance of a director or other officer concerned in the management of the company or any person purporting to act as such director or officer, the director or other officer shall be guilty of the like offence.

Taken from Career Times 05 June 2009, p. B7

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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