Hong Kong anti-bribery law Prevention of Bribery Ordinance section 9

Hong Kong Anti-Bribery Law: Prevention of Bribery Ordinance Section 9

Section 9 of the Prevention of Bribery Ordinance (Cap. 201) is the primary hong kong anti-bribery law provision covering private sector corruption. It creates three distinct offences relating to corrupt transactions with agents. It sets out a limited consent defence. And it carries penalties of up to HK$500,000 and seven years' imprisonment. The Independent Commission Against Corruption (ICAC) enforces this provision and has confirmed that no exemption exists for facilitation payments. Listed issuers must also comply with Code Provision D.2.4 of the HKEX Corporate Governance Code, which requires anti-corruption policies and systems.

Prevention of Bribery Ordinance Section 9: The Three Offences

Section 9 addresses bribery in the private sector through three subsections.

Section 9(1): Agent soliciting or accepting an advantage

An agent commits an offence if, without lawful authority or reasonable excuse, the agent solicits or accepts any advantage as an inducement to or reward for doing or forbearing to do any act in relation to the principal's affairs or business, or for showing favour or disfavour to any person. "Agent" includes any person employed by or acting for another. "Principal" includes an employer.

Section 9(2): Offering an advantage to an agent

Any person who offers any advantage to an agent under circumstances that constitute an offence under section 9(1) also commits an offence. This covers the person giving the bribe as well as the agent receiving it.

Section 9(3): Agent using a false document

An agent commits an offence if, with intent to deceive the principal, the agent uses any receipt, account or other document that is false, erroneous or defective in a material particular and that the agent knows is intended to mislead the principal. This provision catches the concealment of bribes through dishonest documentation.

Hong Kong Private Sector Bribery Offence: Who Is Caught

The hong kong private sector bribery offence under section 9 applies to any person acting as an agent. That means employees, contractors, consultants and anyone else acting for a principal. The offence is not limited to commercial entities; it covers any principal-agent relationship, including those in non-profit organisations and private businesses.

For a prosecution to succeed, the prosecution must prove that the advantage was offered, solicited or accepted as an inducement to or reward for the agent acting in relation to the principal's affairs. The advantage need not have been actually received or acted upon. The offer itself is sufficient.

Section 9 contains no extraterritorial wording. The phrase "whether in Hong Kong or elsewhere" appears only in section 4, which covers bribery of public servants. A case may be pursued where any part of the act of bribery takes place in Hong Kong.

Hong Kong ICAC Facilitation Payments: No Exemption

The ICAC has stated clearly that there is hong kong icac facilitation payments no exemption under Hong Kong's anti-bribery law. Facilitation payments, sometimes called "grease payments" or "speed money", are small sums paid to secure or expedite the performance of a routine or necessary action to which the payer has a legal right. Unlike some jurisdictions that permit such payments as an exception to bribery laws, Hong Kong does not.

The ICAC confirms that there is no minimum value or threshold at which an advantage qualifies as a bribe. Any advantage, regardless of its monetary value, can constitute a bribe if given or received corruptly. A cup of coffee, a small gift or a modest meal may be caught if it is offered or accepted with corrupt intent.

The Consent Defence Under Section 9(4) and 9(5)

Sections 9(4) and 9(5) together provide a consent defence to section 9(1) and 9(2) offences. Where the agent solicits or accepts an advantage with the principal's permission that complies with section 9(5), neither the agent nor the offeror is guilty of an offence.

Section 9(5) imposes three conditions on the consent defence:

1. Permission must be given before the advantage is offered, solicited or accepted, or the agent must apply for permission and receive it as soon as reasonably possible afterwards.
2. The principal must have regard to the circumstances before giving permission.
3. The principal must give the permission.

The defence does not apply to section 9(3), the false document offence. An agent cannot rely on the principal's consent to use a false receipt or account.

In practice, a principal who learns that an agent has received an unsolicited advantage should consider whether to approve it retrospectively. The principal must genuinely consider the circumstances, including the nature and value of the advantage, the relationship between the parties and whether any obligation has been created.

Penalties: Maximum Penalty HK$500,000 and Imprisonment for 7 Years

Section 12(1)(a)(iii) of the Prevention of Bribery Ordinance sets the penalties for section 9 offences:

• On indictment: a fine of HK$500,000 and imprisonment for 7 years.
• On summary conviction: a fine at level 6, which is HK$100,000, and imprisonment for 3 years.

The court must also order payment of the amount or value of the advantage received. This mandatory disgorgement ensures that the bribe cannot be retained even after the criminal penalty is served.

Hong Kong Anti-Corruption Policy Code Provision D.2.4

Code Provision D.2.4 of Appendix C1 to the Main Board Listing Rules (effective 1 July 2025, renumbered from D.2.7) provides that the issuer should establish policies and systems that promote and support anti-corruption laws and regulations. This is a comply-or-explain requirement. The issuer must either adopt such policies or explain why it has not done so.

The hong kong anti-corruption policy code provision d.2.4 applies to all listed issuers. A typical anti-corruption policy under D.2.4 would:

• Prohibit bribery and corruption in all forms, including facilitation payments
• Require employees and agents to report any offer or solicitation of an advantage
• Establish procedures for seeking the principal's consent where an advantage might be acceptable
• Provide training on section 9 obligations
• Set out consequences for breach

The ICAC provides guidance and training to businesses on complying with anti-bribery laws and developing appropriate policies.

Practical Considerations for Businesses

Ensure that employees understand that any advantage offered or received in connection with the principal's affairs is potentially caught by section 9. What constitutes an acceptable business gift under company policy may still fall within the scope of the ordinance if the circumstances suggest corruption.

The consent defence provides a mechanism for the principal to approve an advantage after the event, but only if the principal has genuinely considered the circumstances. A blanket policy that approves all gifts of a certain value does not meet the requirements of section 9(5). The principal must have regard to the individual circumstances.

Where an employee is unsure whether an advantage is acceptable, seek the principal's permission before accepting or offering it. If that is not possible, report the matter promptly and seek retrospective approval.