內地經濟近年進一步改革開放，促進了中港跨境貿易交流，而全球經濟一體化亦為香港的中小企業於海外市場製造了不少商機。然而為保持公平的營商環境，世界各地對反貪工作日益重視，例如中央政府近年嚴厲打擊貪污及商業賄賂，而歐美部份國家的反貪法例如英國的《反賄賂法2010》(The Bribery Act 2010) 更越見嚴格。本港中小企業除了要遵守香港的防貪法例外，凡涉及跨境營運的企業更須提醒員工遵守當地法規，以免誤墮法網，否則不但賠上商譽，更有可能令個人及企業負上法律責任。
員工在英國作出行賄行為，即向他人提供經濟或其他利益，旨在誘使他人不正當行使其職務，便有可能觸犯《反賄賂法》。如果Michael向英國零售商的高級職員提供利益(如名錶或古董)以換取訂單，他便可能觸犯法例。該法案雖然不禁止「合理和相稱」(reasonable and proportionate) 的商業應酬或接待，但如果Michael提供的接待過於豪華以至超乎常規，並且有行賄動機，他仍會面對觸犯法例的風險。
此外，任何在英國經營業務或部份業務的公司，若沒有防止其「相關人士」(associated person) (如僱員或中介人) 的賄賂行為，而該賄賂行為的目的是為該公司獲取業務上的利益，公司亦會違反《反賄賂法》；除非該公司能證明其內部擁有「足夠程序」(adequate procedures)防止其「相關人士」的賄賂行為。因此，Michael作為公司的銷售總監，若然於英國執行公司業務時作出賄賂行為，而目的是為公司獲取業務上的利益，梁老闆的公司亦有可能因沒有採取「足夠程序」阻止該賄賂行為而須負上法律責任。
縱然市場競爭激烈，梁老闆絕不應接受Michael的建議以賄賂手段獲取生意。此外，公司應參考英國司法部發出的《反賄賂法施行指導意見》（Bribery Act 2010 Guidance）所提出的原則，實施「足夠程序」來防範貪污的風險。公司亦應制定關於提供款待和利益等的清晰指引，包括對員工說明應如何招待客戶、採取甚麼規格、事前須獲公司批准、以及在每次款待完畢後向公司報告並記錄有關開支，讓員工有規可循。
本文由廉政公署香港道德發展中心提供，香港中小企業如需廉署的免費防貪服務，歡迎致電香港道德發展中心查詢 (電話: 2587 9812)。
註: 以上有關法律內容的解釋，只屬一般和概括性質，如有疑問，應參照法例原文及有關文件(連結如下)，或 參考《「守法誠信」粵港中小企業防貪指引》，並徵詢法律顧問的意見。
Integrity and Compliance with Local Laws
in Cross-Boundary Operations
Further reform and opening up of China's economy have facilitated cross-border trade and exchanges between the Mainland and Hong Kong, while globalisation has also created enormous opportunities for Hong Kong small and medium enterprises (SMEs) in overseas markets. To maintain a level playing business environment, the world has placed greater importance on anti-graft work. For instance, the Chinese Government has recently taken stern measures against corruption and commercial bribery and some countries have enforced more stringent anti-corruption legislations like the UK Bribery Act 2010. Apart from observing the anti-corruption law of Hong Kong, Hong Kong SMEs engaging in cross-boundary business have to remind their staff to abide by local laws while working in other jurisdictions to avoid inadvertent breach. Not only business reputation will be tarnished, company directors and enterprises may also be held legally liable.
This article will illustrate and explain the anti-corruption laws of the Mainland and Hong Kong and the points-to-note for enterprises having business dealings in the UK. Three case scenarios of Hong Kong SMEs engaging in cross-boundary business will be used to exemplify the laws.
Scenario 1: Shareholder’s Acceptance of Advantage from Mainland Supplier
Mr Chan started a joint-venture garment trading company along with his friends to purchase garments on the Mainland for exports to overseas markets. Mr Wong, a shareholder of the company, was familiar with the Mainland market operations, so he was tasked with the procurement of garments on the Mainland and would often have direct contacts with different suppliers. Chan discovered recently that the company had often placed large orders with a particular supplier with whom Wong was exceptionally well acquainted. During the Lunar New Year, Wong brought the expensive red wines and dried seafood offered by that supplier to Hong Kong for distribution to his relatives and friends. There were rumours that Wong received rebates from the supplier through his wife’s bank account in Hong Kong. However, neither Chan nor other shareholders had any knowledge of the matter.
Major Points of Law
According to Section 9 of the Prevention of Bribery Ordinance (PBO) of Hong Kong, an agent is prohibited from soliciting or accepting an advantage in relation to the business of his principal without his principal’s permission. Otherwise, he would commit an offence under the PBO. The offeror is also guilty of the offence.
Rebates, expensive red wines and dried seafood offered by the supplier to Wong are advantages as defined in the PBO. According to the PBO, individual shareholders or directors are agents of the company. Prior to soliciting or accepting any advantages in the course of business, Wong should have obtained the permission from the board of directors (his principal).
Moreover, if any part of the bribery act (including promising, agreeing, soliciting, offering or accepting of unauthorised advantage) can be proved to have taken place in Hong Kong, the case can be pursued under the PBO. Regardless of whether the advantage is directly or indirectly delivered to the taker of the bribe or through a third party, as long as it is proved that the bribed person is the ultimate beneficiary, the taker of the bribe can be considered to have accepted the advantage. In this scenario, if Wong did receive rebates from the Mainland supplier through his wife’s account in Hong Kong for placing orders with the supplier, he might have committed an offence under the PBO. The offering party might also be guilty of an offence.
Chan should formulate a code of conduct for his company stating clearly its stance and policy in governing acceptance of advantages by board members and staff. The procedures for declaring acceptance of advantages and the channels for enquiring about such issues should also be clearly indicated to staff for their compliance. Furthermore, Chan should not tolerate any illegal activity and should report to the ICAC on any suspected corruption as soon as possible.
Scenario 2: Company Offering Bribes to State Officials
Mr Lee was the Hong Kong representative of a China-Hong Kong joint venture in electronic components trading and held 60 percent of the shares in the company. Last year, the company started to build a parts production plant on the Mainland, which would go into operation before Easter. But upon completion of the new plant, the fire prevention authority discovered that the fire service facilities failed to meet the required standard and ordered a refitting of the facilities at the plant. The refitting would delay the operation and bring considerable loss to the company. While Lee was bothering with the issue, the Mainland shareholder suggested arranging a meeting with the two responsible fire safety officials to ask for a favour and paying a “service charge” if necessary.
Major Points of Law
According to Article 389 of the Criminal Law of the People’s Republic of China, any person, for the purpose of seeking illegitimate benefits, offering money or property to State functionaries may commit the offence of offering bribes. In fact, if it was with Lee’s consent that the Mainland shareholder offered bribes to the fire safety officials for their turning a blind eye to the substandard fire service facilities at their plant, both Lee and the Mainland shareholder might have committed offences.
Likewise, if a company offers a bribe with an aim to secure illegitimate benefits, or, in violation of State regulations, offers rebates and service charges to State functionaries, and where the circumstances are serious, the company may commit the offence of unit offering bribes.
Lee should flatly refuse the suggestion of the Mainland shareholder, otherwise both of them and the company might be subject to criminal prosecution. On the other hand, the fire safety facilities should be fixed up as soon as possible, otherwise lives might be put at risk should any accident occur.
Scenario 3 : Employees Offering Advantage and Entertainment to UK Retailers
Mr Leung had been engaged in the toy business in Hong Kong for years. To expand his business into European markets, his company set up a subsidiary in London last year for supplying toys imported from the Mainland. Michael, Leung’s business partner, was posted to the London office as the Sales Director in charge of promoting their products to potential clients and overseeing the sales operations. Leung found that Michael had recently incurred substantial entertainment expenses for buying expensive VIP packages for the London Olympics. Upon Leung’s enquiry, Michael explained that the packages, comprising VIP spectator boxes for the Olympic games and fine dining, were offered to senior staff members of several retail chain stores in the UK. According to Michael, competition among toy suppliers was keen and the expenses were necessary for building up good relationship with the retailers. To stand out from other competitors and get potential clients on their side, Michael even suggested offering them gifts like luxury watches or antiques. Though the sales orders from these potential clients would be large, Leung had reservation about Michael’s suggestion for fear that Michael or the company might have breached UK laws.
Major Points of Law
The UK Bribery Act 2010, in force from 1 July 2011, mainly consists of four bribery offences -- including offering bribes to another person, being bribed, bribing a foreign public official and failing to prevent bribery. Though the Act was enacted in the UK, the Act may also apply to non-UK citizens and corporations registered outside the UK. These include Hong Kong companies, as non-UK corporations which carry on business or any part of their business in the UK. These persons and companies can be prosecuted in the UK even though no corruption took place in the UK.
An employee might breach the Act if he or she bribes another person by offering a financial or other advantages with an intent to encourage the person to perform improperly a relevant function or activity. In this case, if Michael has offered advantages (e.g. watches and antiques) to senior staff members of UK retailers in exchange for sales orders, he might be guilty of the offence. Though the Act does not prohibit “reasonable and proportionate” business hospitality, Michael might still face the risk of breaching the Act if the hospitality was disproportionately lavish or extravagant and was offered with an intent to bribe.
Furthermore, any commercial organisation carrying on a business or part of a business in the UK will be guilty of an offence under the Act if an “associated person” (e.g. an employee or agent) of the organisation bribes another person intending to obtain or retain business for that commercial organisation. It will, nevertheless, be a defence for the organisation to prove that it has in place “adequate procedures” designed to prevent its employees or associated persons from bribing. Therefore, if Michael, the Sales Director of Leung’s company, bribes another person when carrying out business in the UK for the purpose of obtaining business, Leung’s company might have to bear criminal liabilities for a failure to take “adequate procedures” to prevent bribery from taking place.
Leung should not condone the use of bribery means by Michael to obtain business despite intense competition. Furthermore, Leung’s company should put in practice “adequate procedures” to prevent corruption risks by referring to the principles set out in the Bribery Act 2010 Guidance issued by the UK Ministry of Justice. The company should also formulate clear guidelines on offering hospitality and advantages. Such guidelines may cover the form and standards of hospitality expenses, requirements related to prior consent from the company, reports on each hospitality-related expense or occasion and proper records of the expenses incurred.
Corruption Prevention Recommendations for Cross-boundary Business Operations
- Understand and observe the laws of different places, and, say NO to corruption
- Formulate a code of conduct, establish policy on the acceptance of advantages and regulate the provision of entertainment and hospitality
- Conduct risk assessment for organisations; regularly review and strengthen system control
- Cultivate an ethical culture and arrange integrity training for staff
- Adopt a zero tolerance stance against corruption and report to relevant law enforcement agencies on any corruption and bribery act
- Formulate or review a company code of conduct
- Arrange staff integrity training
- Provide tailor-made corruption prevention advice on system control, procurement, marketing, accounting, staff management, etc.
This article is provided by the Hong Kong Ethics Development Centre of the ICAC, which offers a full range of free corruption prevention services for Hong Kong SMEs. Please contact the Centre on 2587 9812 for details.
Note: Descriptions and explanations of the relevant laws above are necessarily general. In case of doubt, readers should refer to the original text of the laws, the Bribery Act 2010 Guidance (see links below) and “Integrity and Compliance with the Law: A Guide to the Prevention of Corruption for SME Entrepreneurs Investing in Guangdong and Hong Kong”, and seek legal advice as and when necessary.
Prevention of Bribery Ordinance (Laws of Hong Kong Cap. 201): http://www.legislation.gov.hk
UK Bribery Act 2010: http://www.legislation.gov.uk/ukpga/2010/23/contents
Bribery Act 2010 Guidance: http://www.justice.gov.uk/legislation/bribery