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Bribery and Corruption Law in Hong Kong, 4th Edition

Bribery and Corruption Law in Hong Kong, 4th Edition

  • Author:
  • Publisher: LexisNexis Hong Kong
  • ISBN: 9789888600649
  • Published In: December 2019
  • Format: Paperback
  • Jurisdiction: Hong Kong ? Disclaimer:
    Countri(es) stated herein are used as reference only

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  • Contents 
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    Bribery and Corruption is a detailed and expansive guide to bribery and corruption law in Hong Kong. The jurisprudence relating to the common law offence of misconduct in public office continues to grow as the offence is more frequently employed by prosecutors against abuses of their office by public officials. Recent case law which helps to define the parameters of the offence is discussed. In order to make the book a more practical tool for legal professionals, the Prevention of Bribery Ordinance (Cap 201) and the Independent Commission Against Corruption Ordinance (Cap 204) are included.

  • CHAPTER 1 THE HISTORICAL DEVELOPMENT OF HONG KONG’S ANTI-CORRUPTION LAW

    1. 1841–1898: The Imported Common Law

    2. 1898: The Misdemeanours Punishment Ordinance

    3. 1948–1971: The Prevention of Corruption Ordinance

    4. 1948–1968: Years of Growing Public Concern

    5. 1968–1970: Review of the Existing Law

    6. 1970: The Prevention of Bribery Bill

    7. The Prevention of Bribery Ordinance

    8. The Godber Scandal and the Blair-Kerr Inquiry

    9. The ICAC and the Prevention of Bribery Ordinance:  A New Anti-Corruption Regime for Hong Kong

    10. 1974–1991

    11. The Introduction of the Hong Kong Bill of Rights

    12. The Dismissal of the ICAC’s Deputy Director of Operations

    13. The Report of the ICAC Review Committee

    14. The United Nations Convention Against Corruption (UNCAC)

    15. Application of the Prevention of Bribery Ordinance to the

    Chief Executive

    16. The Code for Officials under the Political Appointment System

    17. The Civil Service Code

    CHAPTER 2 THE ICAC OF THE HONG KONG SAR – PART I: ESTABLISHMENT AND STRUCTURE

    1. Predecessors of the ICAC
    2. The Structure of the ICAC
    3. The Operations Department: 1974 to the Present Day

    CHAPTER 3 THE ICAC OF THE HONG KONG SAR – PART II: JURISDICTION AND OPERATIONS

    1. Establishment of the ICAC and Appointment of the Commissioner
    2. The Investigative Jurisdiction of the ICAC
    3. The Commissioner’s Right to Investigate Non-Corruption Crime
    4. The Right of ICAC Officers to Lay Informations for Non-Corruption Offences
    5. Offences Impeding the Work of the ICAC

    CHAPTER 4 POWERS OF ARREST AND DETENTION

    1. The Nature of Arrest

    2. The Process of Arrest

    3. Reasonable Suspicion

    4. Powers of Arrest

    5. Procedure After Arrest

    6. Detention in ICAC Custody

    CHAPTER 5 PART I OF THE PREVENTION OF BRIBERY ORDINANCE

    1. Overview of the Prevention of Bribery Ordinance

    2. Interpreting the Prevention of Bribery Ordinance

    3. The Interpretation and General Clauses Ordinance

    4. The Definition of Advantage

    5. Category (a) in the Definition of Advantage

    6. Category (b) in the Definition of Advantage

    7. Category (c) in the Definition of Advantage

    8. Category (d) in the Definition of Advantage

    9. Category (e) in the Definition of Advantage

    10. Category (f) in the Definition of Advantage

    11. Agent

    12. Prescribed Officer

    13. Public Servant

    14. Definition of Offers

    15. Definitions of Solicits and Accepts

    CHAPTER 6 THE MENS REA OF PART II OFFENCES

    1. Mens Rea (1): The General Principles

    2. Mens Rea (2): The Relevance of the State of Mind of the Offeror on an Accepting Charge

    3. Mens Rea (3): Soliciting and Accepting Accused Denying a Corrupt Intent

    4. Mens Rea (4): Accused Offerors and Post-Offer Conduct

    5. Mens Rea (5): Section 11 of the Prevention of Bribery Ordinance

    6. “As an Inducement to or Reward for or Otherwise on Account of”

    7. Lawful Authority or Reasonable Excuse

    CHAPTER 7 SECTIONS 3 AND 8, PREVENTION OF BRIBERY ORDINANCE: THE OFFER AND ACCEPTANCE OF ADVANTAGES WITHOUT A CORRUPT PURPOSE

    1. Section 3: Prescribed Officer Soliciting or Accepting an Advantage

    2. The Framework of Section 3

    3. The Role of Section 3

    4. Acceptance of Advantages (Chief Executive’s Permission) Notice 2010

    5. Section 8: Bribery of Prescribed Officers and Public Servants by Persons Having Dealings with the Government and Public Bodies

    6. The Framework of Section 8

    7. The Role of Section 8

    CHAPTER 8 SECTIONS 4 TO 7, PREVENTION OF BRIBERY ORDINANCE: CORRUPTION INVOLVING PUBLIC BODIES

    1. Public Sector Corruption

    2. Section 4: Bribery of Public Servants

    3. Paragraphs (a) and (b) of Section 4

    4. Paragraph (c) of Section 4

    5. The Role of Section 4

    6. Section 5: Bribery in Regard to Public Body Contracts

    7. The Role of Section 5

    8. Section 6: Bribery for Procuring the Withdrawal of Tenders for Public Contracts

    9. Section 7: Bribery in Relation to Auctions

    10. The Roles of Sections 6 and 7

    CHAPTER 9 SECTION 9, PREVENTION OF BRIBERY ORDINANCE: CORRUPT TRANSACTIONS WITH AGENTS

    1. Section 9(1) and (2): Bribery of Agents

    2. The Elements of the Definition

    3. Section 9(4) and (5): Principal’s Consent

    4. The Role of Section 9(1) and (2)

    5. Section 9(3): Corrupt Transactions with Agents

    6. The Role of Section 9(3)

    CHAPTER 10 SECTION 10, PREVENTION OF BRIBERY ORDINANCE: EXPLAINING UNDUE WEALTH

    1. Section 10

    2. Penalties for Section 10 Offences

    3. The Historical Background to Section 10

    4. Section 10: An Overview

    5. The Reversal of the Burden of Proof and the Bill of Rights

    6. The Status of “Being or Having Been

    a Prescribed Officer”

    7. Official Emoluments

    8. The Operation of the Burden of Proof on the Trial of Section 10 Offences

    9. Incommensurateness and Disproportion

    10. Meaning of Satisfactory Explanation

    11. Section 10(1)(a): Maintaining an Incommensurate Standard of Living

    12. Section 10(1)(b): Controlling Disproportionate Pecuniary Resources or Property

    13. Section 10(2): Presumption of Control by the Accused of Third Party Property

    14. Aiding and Abetting a Section 10 Offence

    15. Proving a Section 10 Offence by Evidence Suggesting the Accused Might be Corrupt

    16. Section 12(3)–(5): Restitution Provisions for Section 10(1)(b)

    17. Confiscation of Assets

    CHAPTER 11 SENTENCING FOR CORRUPTION OFFENCES

    1. Section 12: Penalties for Part II Offences

    2. Sentencing Policy

    3. Sentencing Principles (1): General Principles

    4. Sentencing Principles (2): Sentencing for Multiple Offences

    5. Sentencing Principles (3): The Length of the Prison Term

    6. Sentencing Principles (4): Suspension of a Custodial Sentence

    7. Community Service Orders

    8. The Cautioning Procedure

    9. Sentencing in Magistrate’s Courts

    10. Restitution Orders under Section 12(1) and (2

    11. The Different Types of Criminality in Corruption Cases

    12. Section 3 Sentencing Cases

    13. Section 4 Sentencing Cases

    14. Section 8 Sentencing Cases

    15. Section 9 Sentencing Cases

    16. Section 9(3) Sentencing Cases

    17. Section 10 Sentencing Cases

    CHAPTER 12 POWERS OF INVESTIGATION

    1. Introduction

    2. Section 13(1) ICACO: The Commissioner’s Power to Authorise Others

    3. Compulsive Powers and Human Rights Law

    4. Legal Professional Privilege and POBO and ICACO Powers

    5. Dissemination of Investigative Materials Other Than for Prosecution

    6. Common Features of the Part III POBO Powers

    7. Procedures for Part III Applications

    8. Powers in Respect of Prescribed Officers, Public Servants and Public Bodies

    9. Part III POBO: Powers of General Application

    10. Search and Seizure Powers

    11. Section 17A–17C: Surrender and Return of Travel Document

    CHAPTER 13 PROSECUTING OFFENCES UNDER THE PREVENTION OF BRIBERY ORDINANCE

    1. The Offences

    2. The Charges

    3. The Evidence

    4. The Trial

    CHAPTER 14 THE COMMON LAW OFFENCE OF MISCONDUCT IN PUBLIC OFFICE

    1. The Common Law and Abuse of Public Office

    2. The Importance the Common Law Attaches to Public Office

    3. The Common Law Offence of Misconduct in Public Office

    4. The Elements of the Offence of Misconduct in Public Office

    5. Element (1): Being a public official

    6. Elements (2), (3) and (5): The Actus Reus of the Offence

    7. Elements (3) and (4): The Mens Rea of the Offence

    8. Sentencing Principles

    9. Conclusion

    APPENDIX

    Organisation of the Independent Commission Against Corruption

    Prevention of Bribery Ordinance (Cap 201)

    Independent Commission Against Corruption Ordinance (Cap 204)

    Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap 204A)

    Index

  • Mr Ian McWalters SC

    Mr Ian McWalters SC was until 2009 the Deputy Director of Public Prosecutions. He became a Government Counsel in 1985. He was promoted to Senior Government Counsel in 1988, to Deputy Principal Government Counsel in 1994, and to Principal Government Counsel in 2006.
     

    Andrew Bruce SC

    Andrew Bruce, SC has been a barrister in private practice in Hong Kong since 2001. From 1982 to 2001 he was a prosecutor with the Hong Kong's Department of Justice. Prior to that from 1977 to 1982 he was in private practice in Adelaide in Australia as a Barrister and Solicitor. He was a member of the Bar Council of the Hong Kong Bar Association between 2002 and 2006, including as vice-chairman of the Council. Andrew is the author either in his own right or with others of Bruce & McCoy Criminal Evidence in Hong Kong (loose-leaf service) and Criminal Procedure: Trial on Indictment (loose-leaf service). He is also the editor of the forthcoming 4th Edition of Bribery and Corruption Law in Hong Kong. He sits from time to time as a Deputy Judge of the High Court.

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