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Hong Kong Courts' Jurisdiction in Relation to Bribery Offences Involving Foreign Elements

2015-12-01

Introduction

At common law, only those conducts which are criminal offences against the law of Hong Kong and have occurred within the territorial limits of Hong Kong may be tried in Hong Kong Courts. The rationale behind this approach is that criminal law was developed to protect the local community and not that of other places, which should have made and enforced such laws as they find fit to protect their own communities. As such, as far as common law is concerned, Hong Kong Courts are usually not concerned with crimes committed outside Hong Kong.

Despite the traditional approach at common law, the Courts in Hong Kong have gone considerably further in exercising extra-territorial jurisdiction in relation to several statutory offences. In our previous newsletter “When Can a Person be Prosecuted in Hong Kong for a Cross-border Crime?”, we have seen that the Criminal Jurisdiction Ordinance (Cap. 461) (the “CJO”) was enacted in 1994 to codify the extra-territorial jurisdictions of Hong Kong Courts in relation to crimes associated with international fraud. In this newsletter, we shall look at two Court of Final Appeal cases which involve “foreign elements” but are not covered under the CJO.


Bribery Offences

To recap, section 2(2) and section 2(3) of the CJO set out offences to which the CJO applies. In essence, the CJO covers certain offences under the Theft Ordinance (Cap. 210) and the Crimes Ordinance (Cap. 200), as well as the inchoate offences (such as conspiracy, attempting and incitement) to commit those offences. It can be seen that bribery offences under the Prevention of Bribery Ordinance (Cap. 201) (the “PBO”) are not covered under the CJO. Thus, Hong Kong Courts cannot establish extra-territorial jurisdiction by virtue of the CJO to try bribery offences involving foreign elements.

The case of Lionel – bribe offered outside Hong Kong

The case of HKSAR v Lionel John Krieger [2014] HKCFA 68 demonstrated the difficulty the Prosecution faced to have the case tried before Hong Kong Courts. The offence charged in this case was a conspiracy to offer an advantage to an agent contrary to section 9(2) of the PBO. The Prosecution case was that the Defendant and his accomplices had conspired to offer an advantage to an agent in Macau to ensure the renewal of a contract and the award of two further contracts. It was also said that the agreement between the Defendant and his accomplices were reached in Hong Kong. Despite admitting that section 9(2) of the PBO did not have extra-territorial effect, the Prosecution sought to argue that there had been a fully constituted conspiracy in Hong Kong.

In acquitting the Defendant, the Court of Final Appeal found that it was a straight forward case as far as the evidence before the Court was considered. Although the Prosecution submitted that the conspiracy was formed in Hong Kong, the main hurdle which remained unaddressed by the Prosecution was the fact that if the agreed course of conduct was carried out, it would be the offering of an advantage to an agent in Macau, which would not amount to or involve the commission of any offence triable in Hong Kong. A conspiracy would only be triable in Hong Kong if the agreed course of conduct was also an offence triable in Hong Kong. It would not suffice if only the conspiracy itself was formed in Hong Kong. Accordingly, a conspiracy to make such an offer in Macau was not indictable in Hong Kong, and therefore Hong Kong Courts had no jurisdiction to try the offence in question.

The case of B – bribe offered in Hong Kong

In another case, the Court of Final Appeal also needed to deal with a bribery offence but with a stark difference to the offence in Lionel. In B v The Commissioner of the ICAC [2010] HKCFA 4, the Court had to decide whether a bribe offered in Hong Kong to a public official of a place outside Hong Kong in relation to his public duties in that place would be triable in Hong Kong.

Under section 2(1) of the PBO, “agent” includes “a public servant and any person employed by or acting for another”. The Defendant relied on this section and argued that since this section did not include a public official of a place outside Hong Kong, the offence in question should not be caught under the PBO. He further put forward several principles which he submitted should guide the Court in interpreting the section in question. These principles included, inter alia, that the law of every jurisdiction was directed to protecting itself from harm, and that there was a presumption against a statute having extra-territorial effect.

In rejecting the Defendant's submission, the Court held that on an ordinary reading, a public official of a place outside Hong Kong should come within the phrase “any person employed by or acting for another” in the definition of “agent” provided by section  2(1) of the PBO. The Court went further to comment that the applicability of the presumption against extra-territorial effect in the present case was misconceived. The reason was that the wrongful act in question (i.e. offering of the bribe) was committed in Hong Kong with the requisite mental element (i.e. the Defendant’s intention) formed in Hong Kong. The only extra-territorial element involved was that the offence would have an effect in a place outside Hong Kong, yet this should not preclude the Court from exercising its jurisdiction to try the offence. Accordingly, the Court held that a bribe offered in Hong Kong to a public official of a place outside Hong Kong was triable in Hong Kong.


Conclusion

Albeit having different outcomes, the above two cases have illustrated the same approach, in essence the approach at common law, employed by the Court in dealing with bribery offences involving foreign elements. As suggested above, the Court’s main concern is whether the elements of the offence in question (i.e. the offering of bribe) were committed in Hong Kong, or, if a conspiracy is concerned, would be committed in Hong Kong. This, of course, is a question of facts to be proved by the Prosecution by adducing evidence.




For enquiries, please contact our Litigation & Dispute Resolution Department:

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2015

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