This country-specific Q&A provides an overview to bribery & corruption law in Macau.
It will cover the definition of bribery, regulation, compliance, liability and enforcement as well as insight and opinion and any upcoming legal changes planned for their respective country.
This Q&A is part of the global guide. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-corruption/
What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
- Decree-law no. 58/85/M, 14 November 1985, which approved the Penal Code (PC);
- Notice of the Chief of Executive no. 5/2006, February 21st 2006, which orders the publishing of the ratification by the Popular Republic of China of the United Nations’ Convention against Corruption, adopted in New York on October 31st 2003;
- Law no. 19/2009, August 17th 2009, which approves the Prevention and Repression of Corruption in the Private Sector;
- Law no. 10/2000, republished by Law no. 4/2012, which approved the Organic Law of the Commission Against Corruption of the Special Administrative Region of Macao;
- Law no. 11/2013, July 28th 2013, which approved the Legal System on the Declaration of Assets and Interests;
- Law no. 10/2014, December 31st 2014, which approved the Framework for the Prevention and Repression of Corruption Actions in Foreign Trade;
- Notice of the Chief of Executive no. 11/2015, March 6th 2015, which orders the publishing of the Agreement for the Constitution of the International Academy against Corruption as an International Organisation, concluded in Vienna on September 2nd 2010;
Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
It is incumbent upon the Ministério Público to conduct the criminal enquiry with the assistance of the competent criminal police bodies.
The Macao Anti-Corruption Commissioner (CCAC) is the public body responsible for fighting corruption. It is an independent body that reports directly to the Chief Executive.
Under Law no. 10/2000, republished by Law no. 4/2012, the CCAC’s duties are:
- To develop actions to prevent and repress corruption crimes and related crimes of fraud in the public and in the private sectors;
- To carry out investigation and inquiry actions relating to corruption crimes and related crimes of fraud committed by civil servants or that occurred in the private sector;
- To carry out investigation and inquiry actions relating to corruption crimes and related crimes of fraud committed within the scope of the voter registration and the elections for the bodies of the Special Administrative Region of Macao.
How is bribery defined?
3.1 Passive corruption crimes
The punishment of any civil servant who requests or accepts a bribe in consideration for carrying out (or omitting the carrying out of) a certain act is set out in Articles 337 and 338 PC, which respectively define passive corruption crime for an unlawful act and passive corruption crime for a lawful act.
The elements of such offences are identical, except for the contents of an action committed (or an omission made) by the civil servant.
Where the mentioned action (or omission) is contrary to the duties of the civil servant’s office, the conduct shall be subsumed in the provision of Article 337 PC (passive corruption for unlawful action);
Where the action (or omission) is instead not contrary to the duties of the civil servant’s office, the conduct shall be punishable under Article 338 of the same Code.
The remaining (common) elements of passive corruption crimes are the following:
- solicitation or acceptance of any pecuniary or non-pecuniary advantage or the promise of such an undue advantage by a civil servant him/herself or through a third party with the former’s consent or ratification, either for him/herself or for a third party; and
- carrying out an action or omission, contrary or not to the duties of the civil servant’s office, in consideration for the accepted or requested advantage.
Similarly, to all corruption crimes provided under Macao’s legal system, passive corruption crimes are only punishable when they correspond to wilful misconduct, meaning that, in general, the civil servant will have to warrant that his/her conduct amounts to the commission of a passive corruption crime and, nevertheless, will not refrain from acting that way and will accept that result.
3.2 Active corruption crimes
The punishment of the perpetrator who corrupts a civil servant is set out in Article 339 PC, which defines respectively in section 1) active corruption crime for an unlawful action and in section 2) active corruption crime for a lawful action.
Whoever provides or promises, personally or through an intermediary, with his/her consent or ratification, to a civil servant, or to a third party, upon indication and with the former’s knowledge, an undue pecuniary or non-pecuniary advantage shall commit an active corruption crime.
- Where the advantage is offered or promised as consideration for carrying out an action (or omission) that is contrary to the duties of the civil servant’s office, an active corruptor shall be punished under the terms of Article 339(1) PC.
- Where the advantage is offered or promised as consideration for an action (or omission) that is not contrary to the duties of the civil servant’s office, a perpetrator shall be punished under section 2) of the same article.
Only wilful misconduct is punishable.
Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
As we have seen above, corruption crimes in the public sector are based on the concept of civil servant, the definition of which, provided in Article 336(1) PC, includes:
a) a worker of the public administration or of other public legal persons;
b) a worker at the service of other public authorities; and
c) whoever, even where provisionally or temporarily, against remuneration or without charge, voluntarily or obligatorily, has been called to perform or participate in the performance of an activity falling under the administrative or jurisdictional civil service.
Other persons will also be treated as civil servants, notably:
a) a Chief Executive, Secretaries, Members of the Legislative Assembly, Members of the Advisory Board, the Judicial and the Ministério Público Magistrates and the Commissioner Against Corruption;
b) holders of administrative and supervisory bodies, or bodies of another nature, and the workers of public companies, publicly held companies or companies with a majority public capital holding, as well as companies that are concessionaires of public services or assets or companies developing activities on an exclusive basis.
Given that workers of companies engaged in activities on an exclusive basis have been considered to be equivalent to civil servants, the legal community has been considering that workers of gambling companies must be treated as civil servants for the purposes of penal law.
Law no. 19/2009 of August 17th lays down the framework of penal liability for corruption crimes in the private sector, whereby both passive and active corruption is punishable in the private sector.
What are the civil consequences of bribery in your jurisdiction?
The Criminal Procedure Code, approved by Decree-Law no. 48/96/M, as amended by Dispatch of the Chief of Executive no. 354/2013, November 5th 2013, provides, in its Article 477, that court decisions may include civil consequences including, but not limited to, suspension of political rights, dismissal from public positions, being ineligible to public positions, inhibition of voting rights, being no longer legal guardian, among others.
Article 478 further provides that the judge may order any other measures needed for the execution of the sentence.
What are the criminal consequences of bribery in your jurisdiction?
- Crimes of corruption in the public sector
Passive corruption crime for unlawful act
- Prison sentence of 1 to 8 years.
- Where the action is not carried out, a perpetrator shall be punished with a prison sentence of up to three years or a fine.
- The punishment will not take place where the perpetrator, prior to carrying out the action, voluntarily rejects the offer or the promise that he/she accepted, or where he/she returns the advantage, or in case of fungible goods, its value.
- The attempt is punishable.
Articles 337 and 22 PC
Passive corruption crime for lawful act
- Prison sentence of up to two years or fine of up to 240 days.
- The punishment will not take place where a perpetrator, prior to carrying out the action, voluntarily rejects the offer or the promise that he/she accepted, or where he/she returns the advantage, or in case of fungible goods, its value.
Articles 338 and 45(2) PC
Active corruption crime
- Active corruption for an unlawful action (i.e. with the purpose set out in Article 337 PC): prison sentence of up to three years or a fine.
- Active corruption for an unlawful action (i.e., with the purpose set out in Article 338 PC): prison sentence of up to six months or penalty fine of up to 60 days.
Articles 339 and 45(2) PC
- Corruption crimes in the private sector
Passive corruption crime
- Prison sentence of up to 1 year or fine.
- Where the action or omission provided in Article 3(1) of Law no. 19/2009 gives rise to unfair competition, a perpetrator shall be punished with a prison sentence of up to two years or a fine.
- Where the action or omission provided in Article 3(1) of Law no. 19/2009 gives rise to damages to the health or safety of third parties, a perpetrator shall be punished with a prison sentence of up to three years or a fine.
- The punishment will not take place where a perpetrator, prior to carrying out the action, voluntarily rejects the offer or the promise that he/she accepted, or where he/she returns the advantage, or in case of fungible goods, its value.
Article 3 of Law no. 19/2009
Active corruption crime
- Prison sentence of up to 6 months or a fine.
- Where the conduct provided in Article 4(1) of Law no. 19/2009 gives rise to unfair competition, a perpetrator shall be punished with a prison sentence of up to one year or a fine.
- Where the action or omission provided in Article 3(1) of Law no. 19/2009 gives rise to damages to the health or safety of third parties, a perpetrator shall be punished with a prison sentence of up to two years or a fine.
Article 4 of Law no. 19/2009
- Active corruption crime in foreign trade
Active corruption crime within the scope of foreign trade
- Natural person: prison sentence of up to 3 years or a fine.
- Legal person: (i)fine of up to a maximum of 10 000 000 MOP; (ii) judicial winding-up; and(iii)additional penalties (such as a practice ban for a period of 1 to 10 years and the establishment’s closure for a period of 1 month to 1 year.
Articles 4 and 5 of Law no. 10/2014
Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?
Macao’s legal system does not provide a specific rule to regulate facilitation payments, gifts and hospitality, for the purposes of corruption crimes.
As seen in the reply to the previous question, the concept of undue advantage is used in the rules that forbid corruption practices, to characterise any benefit awarded to the civil servant, to the worker of the private sector or to foreign civil servants, and this concept does not exclude facilitation payments, gifts and hospitality; therefore, requesting or accepting the same, or, on the other hand, offering or promising to offer as consideration for a certain action or omission, may constitute both passive and active corruption crimes.
However, the concept of undue advantage excludes the benefits offered or promised that must be deemed socially appropriate and in accordance with the habits and customs; furthermore, in case of civil servants, the CCAC Guidelines establish that such gifts must be reported to the hierarchical superior.
It should also be noted that contrary to the Portuguese regime, the legal system of Macao does not provide the crime of undue receipt of advantage. Therefore, the simple act of accepting or offering an undue advantage, where said advantage does not have in view the carrying out of an action or an omission, does not constitute a crime.
Are political contributions regulated?
Article 93 of Law no. 3/2001 as amended by Law no 11/2008, September 22nd 2008, which approved the Electoral Law for the Legislative Assembly of the Special Administrative Region of Macao, provides that the candidates, the agents of the candidature (and other entities of the sort), as well as political associations are obliged to report the origin of all the income received.
This Article further states that every expense originated by acts that may produce the effects of propaganda for candidates or candidatures shall be included in the respective electoral accounts, with an exception made to those which have not been authorised or ratified by the candidates, the agents of the candidatures, the political associations and the like.
Are facilitation payments regulated? If not, what is the general approach to such payments?
Please see our comments to question 7.
Are there any defences available?
Article 6 of Law no. 10/2014, December 31st 2014, provides that there may be cases in which there may be a special reduction or dismissal of the sentence. This may occur when the agent concretely aids in obtaining decisive proofs for the identification or capture of other responsible parties or in any way provides decisive information for the discovery of truth.
Furthermore, any person under investigation for the alleged commission of a corruption crime may count on the same general defence right provided in the Criminal Procedure Code for any subject of a criminal case, such as:
- he right to appoint a lawyer or to request the appointment of a public defender;.
- the right to be heard by the judge whenever the latter may have to take a decision that will personally affect the person under investigation;.
- the right not to answer questions made by any entity regarding the allegations made against him/her and about the contents of the declarations that he/she may make thereon;.
- the right to be assisted by an attorney in all proceedings in which he/she takes part and, when detained, to communicate privately with said attorney.
Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction?
As results from the reply to the previous question, in Macao’s legal system and concerning corruption crimes, the criminal liability of legal persons for corruption crimes only exists in connection to the crime of active corruption within the scope of foreign trade.
Albeit the non-existence of a specific rule to exclude legal persons’ liability for the commission of this crime, based on the existence of compliance programs, Article 5(2) of Law no. 10/2004 may be construed in that sense, i.e., in the sense that the existence and adoption of compliance programs and mechanisms that have certain features, may exclude the liability of legal persons for actions of active corruption committed by their workers, employees and any other person acting on behalf and/or representing the legal person within the scope of foreign trade
Who may be held liable for bribery? Only individuals, or also corporate entities?
Article 10 PC establishes that save in the exceptions expressly provided in the law, only natural persons are susceptible to criminal liability.
However, there are several exceptions to the rule provided in the mentioned law, which allow extending penal liability to legal persons. Regarding corruption crimes, one of the exceptions is provided in the framework on prevention and repression corruption actions in foreign trade, as will be shown below.
Perpetration of a crime may take several different forms, as provided in Article 25 PC:
Principal and co-perpetrator- whoever executes or takes part directly in the action, by agreement or together with another or other persons;
Intermediary- whoever takes part directly in the commitment of a crime through a third party; or
Instigator- whoever maliciously induces a third party to commit the criminal action, provided that there is execution or indication of its execution.
Article 26 PC also defines complicity as a way to participate in the crime and considers an accomplice whoever, wilfully or otherwise, provides material or moral support to the commission of a wrongful act by a third party. Under section 2) of the same article, the penalty set out for the perpetrator shall be applied to the accomplice, with special mitigation.
As mentioned earlier, the rule is that only natural persons are criminally liable.
However, Article 5 of Law no. 10/2014 expressly provides legal persons’ criminal liability for the crime of active corruption within the scope of foreign trade.
Thus, under the terms of said law, legal persons (even where irregularly incorporated) and associations without legal personality are liable for the crime provided in Article 4 of Law no. 10/2014, when it is committed:
By its corporate bodies or representatives; or
By a person under the authority of its bodies or representatives, where the commitment of the crime may have become possible due to a wilful breach of the duties of due diligence or control that fall upon them.
To be noted that the liability of legal persons shall be excluded whenever the perpetrator acts against expressly stated orders or instructions issued by the proper authorities (Article 5(2) of Law no. 10/2014) and the liability of legal persons will however not exclude individual liability of the respective actors (Article 5(3) of Law no. 10/2014).
Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?
To the best of our knowledge, the government has not published any specific documents advising how to comply with anti-corruption and bribery laws. However, there are certain legal instruments that include provisions related to anti-corruption matters. For a reference to such laws, please see our answer 1.
Does the law provide protection to whistle-blowers?
Albeit there being no general framework granting a special protection to whistleblowers of corruption crimes, Macao’s legal system provides several rules that specially mitigate or discharge the sentence or even the charge against the perpetrator who has specifically assisted in the collection of decisive evidence to identify or capture other responsible parties, or who somehow may have decisively contributed to discovering the truth. In fact:
Under the terms of Article 7 of Law no. 10/2000, the punishment of corruption crimes may not take place where the perpetrator specifically assists in the collection of decisive evidence to ascertain the crime;
Article 6 of Law no. 10/2014, which approved the Regime of Prevention and Repression of Corruption Actions in Foreign Trade, provides the special mitigation or discharge of sentence in case the active corruptor of a civil servant of a jurisdiction outside Macao has cooperated in the collection of decisive evidence to identify or to capture other responsible parties; and
Under the terms of Article 6 of Law no. 19/2009 which criminalised the commission of corruption crimes in the private sector, the sentence is especially mitigated or discharged where the perpetrator specifically assists in the collection of decisive evidence to identify or capture other responsible parties, or somehow decisively contributes to discovering the truth.
How common are government authority investigations into allegations of bribery?
According to the CCAC’s Annual Report, in the year of 2016 there have been around 900 reported cases of bribery or corruption. From these, approximately 250 were criminal cases.
What are the recent trends in investigations and enforcement in your jurisdiction?
In the past years, we have seen a significant increase of high-profile corruption cases, as well as several investigations on money laundering cases.
The fight against drug trafficking has also been increasing significantly over the past few years.
Is there a process of judicial review for challenging government authority action and decisions?
Unless stated otherwise, all government authority actions and decisions may be challenged or reviewed, under Articles 389 and following of the Criminal Procedure Code.
Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
The fight against corruption in Macao is not as recent as it is in some other jurisdictions. Therefore, big changes or reforms are not expected.
To which international anti-corruption conventions is your country party?
- United Nations’ Convention against Corruption, adopted in New York on October 31st 2003;
- Agreement for the Constitution of the International Academy against Corruption as an International Organisation, concluded in Vienna on September 2nd 2010.
Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
The Code of Ethics for lawyers, approved by the Dispatch no. 121/GM/92, 31 December 1992, provides the legal framework for the legal privilege.
In its Article 5, this statute provides that the legal privilege:
- Is not limited in time;
- Shall be required by the lawyer to every trainee, associate, secretary or any other person who collaborates in the provision of professional services;
- Facts concerning professional matters that have been disclosed to her/him by the client or by its order or acquired through the exercise of the profession;
- Facts that, due to the position held in the Bar Association, any colleague, under legal privilege in regards to the same facts, have been communicated to the lawyer;
- Facts disclosed by co-author, co-defendant, or co-interested of the client or by their representative;
- Facts that the counterpart or respective representatives have disclosed during the negotiations for an amicable agreement and that concern the dispute;
- Exists regardless of whether the service requested includes the judicial representation or not, shall be paid or not, the lawyer has accepted the service or not, the same applying to the layers which may have had, directly or indirectly, any intervention in the service;
- Extends to documents or other things related (directly or indirectly) with the facts under privilege.
The Code of Ethics further provides that lawyers can not disclose facts protected under legal privilege and that have come to their knowledge through the exercise of their professions. It also provides that any judicial proof obtained through declarations made by a lawyer in breach of privilege is deemed invalid.
The legal privilege is suspended when it is absolutely necessary for the defense of the lawyer’s dignity, rights and legitimate interests or of its client or its representatives, with previous permission granted by the Bar Association. The lawyer may, however, maintain the privilege.
The Code further provides that lawyers ought not to discuss, in public or through the media, any pending issues or issues to be initiated before the courts or other entities, unless the Bar Association justifiably agrees with the necessity of a public explanation which, in that case, will be given exactly as determined in the authorization granted.
The lawyer shall not try to maliciously or reprehensibly influence the resolution of any cases under discussion in Courts or pending matters near other organs.
How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
It is, we believe, of public knowledge that the Chinese government adopted, in the recent years, a very strict policy against corruption. In fact, the Chinese Prime-Minister and other Chinese officials have stated, in several public appearances, that the fight against corruption is one of the Chinese government’s priorities for the forthcoming years. Macao, as a Special Administrative Region of China, is required to follow the same policy, which, in concrete terms, has consisted in a very intense activity from the CCAC and other enforcement authorities in pursuing persons and entities involved in bribery and corruption activities
Generally how serious are organisations in your country about preventing bribery and corruption?
Despite of what was said in the reply to the previous question, we believe that the focus of the authorities have been more on the investigation and repression of corruption activities, rather than on the prevention of such activities. In fact, we believe that there is a lack of anti-corruption regulations that would impose on the entities operating in Macau the implementation of compliance programs and policies that could help preventing such practices.
What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
The complexity of the corruption activities carried out by the perpetrators and the gathering of evidence, particularly in cases that involve several jurisdictions. The enforcement of judicial decisions on persons that are not in the Macao territory has also been a challenge to the public authorities.
What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?
We believe that the fight against corruption that has been driven by the Chinese and the Macao authorities is very positive for businesses in Macao, and therefore we believe that the forthcoming years have more opportunities for companies and individual entrepreneurs operating in Macau than challenges, in what comes to corruption-related matters.
How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?
We believe that the Macao anti-bribery and corruption legislation is adequate an in line with the legislative threshold of other developed countries or regions, particularly in what relates to criminal law. However, we also believe that the regulatory framework on anti-bribery and corruption matters could be improved.