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Hong Kong law should target bribery of foreign officials

The importance of specifically targeted legislation to prohibit bribery of foreign officials was well-illustrated by a recent Hong Kong Court of Appeals decision, HKSAR v. Krieger (2013) HKCA 639.

In the absence of such legislation, prosecutors of bribery offenses have to tackle difficult issues of agency, conspiracy and the absence of any corporate liability offense for bribery.

The appeal arose from a conspiracy conviction of offering advantages to an agent (the foreign official), contrary to section 9(2)(a) of the Prevention of Bribery Ordinance Cap. 201 (POBO) and section 159A of the Crimes Ordinance, Cap. 200.

The central issue was whether or not various officers of a Hong Kong subsidiary of the Swire Group of companies had conspired with a Macao businessman to bribe the secretary of transport and public works of the Macao government. The purpose of the bribe was to assist a joint-venture company, formed between the subsidiary and the businessman’s company, to obtain lucrative waste contracts with the Macao government.

For the purposes of the appeal, there was not dispute that monies had been paid by way of bribes to the official in connection with the contract, but there was a dispute about whether the substantive bribery offense took place in Hong Kong or Macao.

The Macao businessman, having been granted immunity, was the main prosecution witness. His evidence, accepted by the court, was that he was not acting as an agent for the public official. So the prosecution was faced with a number of difficulties.

First, and for reasons that are unclear, the substantive s.9(2) bribery offense was not specified as an offense under the Criminal Jurisdiction Ordinance Cap 461. This would have deemed as the commission of an offense the dispatching of monies or communications through Hong Kong.

Secondly, although s.4 of POBO expressly provides that bribery of a Hong Kong public official has extra-territorial effect, the substantive bribery offense under s.9(2) does not.

Thirdly, to establish the conspiracy it was necessary to establish that the offer of a bribe was made in Hong Kong.

The Court of Appeal highlighted the principle that, in the absence of clear and specific words to the contrary, a statutory offense was not intended to make conduct outside the jurisdiction triable within a national court.

The court stated:

The principle offense is a single element offense: the making of an offer; whereas the acts of writing and handing the letter to the emissary, Nolasco, were acts preparatory to the making of an offer. THey were evidence of the conspiracy; yet the offer was to be made and was made in Macao. If that construction of the statutory provisions leaves a perceived lacuna int he law, that does not warrant a strained construction.

As the Macao business man, who was present in Hong Kong, was not treated as an agent of the public official, the offer was treated as having been made in Macao and not in Hong Kong. Consequently, the conspiracy could not be tied to the indictable offense and the convictions were overturned.

Most countries in Asia, but by no means all, have passed stand-alone legislation specifically prohibiting the bribery of foreign officials. Curiously, the two jurisdictions that have not yet done so are Hong Kong and Singapore, neither of whom could be described as under-criminalized or lax on domestic anti-bribery enforcement.

Hong Kong has sought to pursue bribery of foreign officials on the basis of the decision of B. v. ICAC, FACC No. 6 which decided that the term ‘agent’ applied to foreign officials.

As was belatedly recognized by the UK authorities in the form of the Bribery Act 2010, however, statutory offenses based on agency, conspiracy and the identification principle for corporate liability have serious shortcomings. The 2010 Act, which doubtless can be improved as the circumstances require, should provide a useful template for jurisdictions considering stand-alone anti-bribery legislation in the future.

In the meantime, the s.9(2) bribery offense should probably be added to the Criminal Jurisidiction Ordinance as a matter of some urgency to try and plug the gap revealed by the Krieger case.

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Alistair Craig is a commercial barrister practicing in London.

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