SECTION 2 OF THE PREVENTION OF BRIBERY ORDINANCE
An advantage may take almost any form of valuable benefit or favour.
Section 2 of the Prevention of Bribery Ordinance (Cap. 201) defines “advantage” broadly. The definition is designed to cover benefits delivered through different financial, commercial or personal arrangements, rather than cash bribes alone.
It includes money, gifts, loans, fees, rewards, commissions, employment, contracts, services, favours and the full or partial payment, release or discharge of a liability. The benefit may be provided directly or indirectly and may be intended for the recipient or another person.
THE STATUTORY CATEGORIES
The definition extends beyond conventional gifts and payments.
Money and financial benefits
Gifts, loans, fees, rewards, commissions, valuable securities and other property or interests in property.
Employment and commercial opportunities
An office, employment, contract, service, business opportunity or agreement to provide any of them.
Release from an obligation
The payment, release, discharge or liquidation of a loan, obligation or other liability, whether in whole or in part.
Services and favours
Any other service or favour, including protection from a penalty or disability and the exercise or forbearance from exercising a right, power or duty.
THE REQUIRED CORRUPT CONNECTION
Not every advantage is a bribe.
A benefit falling within the section 2 definition does not, without more, establish a corruption offence. The prosecution must prove the elements of the particular offence charged. Depending on the provision, this ordinarily includes the necessary connection between the advantage and an official act or the affairs or business of a principal, together with the accused's knowledge and the absence of lawful authority or reasonable excuse.
There is no general minimum value. The nature, purpose and surrounding circumstances of the benefit, the relationship between the parties, any concealment or disclosure and the act allegedly induced or rewarded may all be important.
COURT OF FINAL APPEAL AUTHORITIES
Some landmark cases
These decisions should be read in their factual and procedural context. Some concern the necessary corrupt nexus or agency relationship rather than the section 2 definition alone.
HKSAR v Hui Rafael Junior & Others
FACC Nos. 12, 13, 14 and 15 of 2016The Court of Final Appeal considered payments alleged to have been made to secure and retain the favourable disposition of a senior public official. The defence argued that some benefits did not correspond to a specific, immediate corrupt act ("quid pro quo"). The CFA rejected this, ruling that an "advantage" does not need to be tied to a specific official favour. Providing substantial financial "sweetening" to keep a public official favorably disposed over a long period falls within the illegal scope of Cap. 201, as it structurally undermines the objectivity required of a public servant.
HKSAR v Chan Chi-Wan, Stephen
FACC No. 11 of 2016; [2017] HKCFA 5The CFA clarified that although a financial reward falls within the literal definition of an advantage, section 9 requires the reward to be offered or accepted as an inducement or reward for an act relating to the affairs or business of the principal. Proof of immediate economic loss is not essential. The nature of the advantage may nevertheless undermine the integrity of the agency relationship and injure the trust and loyalty that the principal is entitled to expect from the agent. The circumstances of the work, the necessary nexus and any lawful authority or reasonable excuse must be assessed on the evidence.
HKSAR v Chu Ang
FACC No. 6 of 2019; [2020] HKCFA 18The Court considered whether a violin teacher who advised a student's parent on a purchase was acting as that parent's agent when she received a secret commission from the seller. The CFA held that an advantage may operate in a way that subverts the integrity of an agency relationship. Where a person acts in a capacity giving rise to an expectation of honesty and loyalty, accepting a secret commission or financial benefit without disclosure may injure the relationship of trust that the principal is entitled to expect. Liability under section 9 nevertheless requires proof of the agency relationship, the relevant act in the principal's affairs or business and the other statutory elements.