Bill was the regional manager of South East Asia in a European medical equipment manufacturer. He learnt that a medical equipment supplier in Chinese Mainland was planning to set up a company in Hong Kong to conduct bilateral business by purchasing European products through the suppliers in Hong Kong and selling wheelchairs and medical equipment made in China to South East Asia.
Bill invited the supplier to Hong Kong to have a look at the latest European medical facilities and the equipment used in hospitals in Hong Kong, as well as to get familiar with the local business environment.
Upon their arrival in Hong Kong, Bill only spent half a day visiting the hospitals with the two supplier representatives, but spent a whole week treating them to lavish meals and red wine at five star hotels and restaurants. Bill also arranged a tour to Macao, including a visit to a newly opened casino. Bill gave each of them HK$10,000 worth of casino tokens to "try their luck", claiming that it was a "trade practice" to show his hospitality to their clients. He also implied that he would offer them a handsome "red packet" if they purchase the medical equipment from his company.
According to the Prevention of Bribery Ordinance (POBO), free tours, “red packet” and casino tokens are all advantages. If the two representatives accepted these advantages from Bill in Hong Kong, both of them and Bill would be subject to the POBO, so that both the offeror and recipient would breach the law if they do not have the permission of their employers to receive the advantages.
They cannot use customary trade practice as an excuse because according to Section 19 of the POBO, it shall not be a defence to show that any such advantage is customary in any profession or trade, The court shall only make a judgement based on whether permission was given by the principal of the recipient.
Dr M, the Chief of Service of the Paediatric Department of a public hospital, has the approving authority for purchases not exceeding $100,000. His girlfriend Phoebe is a sales manager of a large medical equipment company.
Recently, David, the Department Operations Manager, recommended a replacement of a medical equipment and the sourcing was in progress. As Dr M knew that Phoebe was being pressured by her boss to secure more business for the company, he offered to help her. After going through the quotations obtained by David, Dr M found that the price quoted by Phoebe was not the lowest. He thus asked David to mark up the quotations of other companies so that he could secure the contract of the medical equipment to Phoebe’s company. In order to please Dr M, David agreed to the proposal.
David would violate Section 9(3) of the Prevention of Bribery Ordinance for manipulating quotation breakdown to deceive his employer i.e. the Hospital Authority (HA). Dr M, who instructed David to take part in the fictitious quotation plot might also be charged with an offence of conspiracy to defraud.
Dr M might face disciplinary action taken by the Medical Council of Hong Kong and his fitness to practise might be questioned.
At the same time, the HA would also take follow-up action against Dr M and David who might breach the HA’s code of conduct which requires the procurement of goods to be the best value for money in terms of price, quality, delivery time and service.
Also, Dr M should, as far as possible, avoid any actual and perceived conflict of interest. When a situation of conflict of interest cannot be avoided, he should as soon as possible declare all relevant details of such situation to his organisation, i.e. his relationship with the sales manager of the potential supplier.
Dr E is a consultant ophthalmologist in a public hospital who is often involved in the procurement of expensive medical equipment for his department. The procurement department of the hospital will seek Dr E’s views while drafting the specifications and in the course of purchase. He has a strong influence on the final selection of supplier through his assessment on the performance of the equipment.
During the procurement of equipment for oculoplastics, Billy, the sales director of a potential supplier, asked Dr E to comment favourably on the equipment produced by his company. He proposed to pay for the passage and accommodation for Dr E to visit the company’s laboratory in New York and take the convenience to attend an important medical conference there. After the trip, Dr E recommended the hospital to offer the contract to Billy’s company.
Dr E would violate Section 4 of the Prevention of Bribery Ordinance as he accepted an advantage i.e. the sponsorship for visiting the company's laboratory and attending a conference without the permission of his employer, and in return recommended the medical equipment of Billy’s company to the hospital. Billy would also commit an offence of corruption for offering the bribe to Dr E.
Dr E might breach Section 15.1 of the Code of Professional Conduct issued by the Medical Council of Hong Kong (Oct 2022) which specifies that doctors should avoid accepting pecuniary inducement from commercial firms that might compromise the independent exercise of their professional judgement.
According to the Hospital Authority's (HA) guidelines on acceptance of donation and sponsorship, overseas site visit relating to the selection of medical equipment before or during tendering exercises should be funded by the HA and should not be sponsored by any of the potential vendors. In any case, HA employees should not solicit or accept, directly or indirectly, any advantage or gift which would, or might reasonably be seen to, compromise their integrity or judgement or influence the discharge or non-discharge of their duties and responsibilities.
Shortly after starting his private practice, Dr C was approached by Ms WONG, the proprietor of a medical laboratory, who requested for the referral of all his patients to her. Ms WONG suggested that an arrangement could be made for a sum to be offered to Dr C by the laboratory for each patient referred. She emphasised that it was in no way unfair to the patients since they had to do the tests somewhere in any case. She also said that a number of other doctors in the same building had already made such arrangement with her.
Prior to the referral of patients to Ms WONG‘s laboratory, their agreement was brought to light by the nurse of Dr C’s clinic and the case was then reported to the ICAC.
A principal and agent relationship exists between Dr C and his patients. As such, Dr C would breach Section 9 of the Prevention of Bribery Ordinance (POBO) by accepting rebates from Ms WONG for referring his patients to her laboratory if Dr C did not have the permission from his patients.
Although the “under-the-table” dealing was not carried out by Dr C and Ms WONG, they would still be liable to prosecution. Under the POBO, both parties can be found guilty of an offence when the agreement on solicitation and acceptance of advantages have been reached even though the purpose of bribery has not been carried out.
Dr C might also violate Section 14.1 of the Code of Professional Conduct issued by the Medical Council of Hong Kong (Oct 2022) which prohibits doctors from receiving rebates from diagnostic laboratories for referring patients.
Dr A was a consultant of the Clinical Oncology Department in a public hospital. His assessments of the effectiveness of medicines had a great impact on the clinical value as well as the future market value of the medicines. Dr A attended the annual dinner of a pharmaceutical company on behalf of the hospital and met Terry, the CEO of the company.
They maintained close ties after the dinner and Terry always treated Dr A lavishly. Lately, Terry invited Dr A to a dinner at a private club and he mentioned to Dr A that his company had recently developed a new antitumor drug, and the assessment of the effectiveness of the drug happened to be conducted by Dr A’s team. Knowing that Dr A was responsible for the final assessment report of the drug, Terry requested Dr A to give a favourable assessment result in the report. Terry suggested to offer his company’s shares to Dr A in return. Dr A found this an attractive offer as he had been planning to retire in five years.
Dr A was a public servant as he is employed by a public hospital under the Hospital Authority. Terry had breached Section 4 of the Prevention of Bribery Ordinance (POBO) for offering Dr A an advantage, in the form of company shares as a return for Dr A’s favourable assessment result in the report . Dr A would also breach the POBO if he accepted the advantage without the permission from the Hospital Authority.
Although entertainment does not fall within the definition of advantage under the POBO, public servants should avoid accepting any lavish, unreasonably generous or frequent entertainment, as it may put them in an obligatory position in the discharge of official duties and compromise their impartiality or judgement.
Anson, a product engineer at a medium-sized company, was the designer of an innovative electronic thermometer that later became the bestselling product of the company. He left after his company was acquired by another company.
Later, Anson joined a medical equipment company which used to be a major competitor of his former employer. He learnt that they intended to develop a new electronic thermometer. He also noticed that a slight modification of the electronic thermometer he designed for his former employer could serve as a new product. In order to impress his new employer, Anson decided to design a new thermometer based on the product of his old company, neglecting the non-disclosure agreement he signed with his former employer on product information.
What Anson did was a breach of trust of his former employer and he may face lawsuits from them for infringing intellectual property rights and breaching the non-disclosure agreement signed.
Anson may contravene the Rules of Conduct of the Hong Kong Institution of Engineers (HKIE) if he is a member of the institution, which prohibit an engineer from making use of proprietary confidential information for personal gain. When working with new clients or changing employment, an engineer has a moral obligation to honour confidential and proprietary information gained from his previous employment, particularly the specific business or technical information from clients or employers.
The Rules of Conduct of HKIE also require an engineer to offer complete loyalty to his employer, past and present, in all business affairs and discharge his duties with integrity and in accordance with the highest standards of business ethics. An engineer is expected to properly credit the contributions of others in engineering practice.
Dr. K was a partner of a large private medical centre. Medical records of the centre were computerised to enhance storage efficiency and retrieval of patients’information. Every employee had access to the records since no password was required.
Robert, a private detective, was entrusted by his client Mrs. CHAN to keep surveillance on her husband who was suspected to have an affair with another woman. Discovering that Mr. CHAN’s mistress had paid frequent visits to Dr. K recently, Robert tried to seek assistance from the clinic assistant Eva to access relevant medical records. Robert agreed to offer Eva $10,000 as a reward for her help. Subsequently, Eva passed Robert a copy of the medical record of the mistress who had been confirmed pregnant. Eva accepted the money from Robert in return.
Both Robert and Eva might have breached Section 9 of the Prevention of Bribery Ordinance for offering and accepting bribes. It was unlikely that Eva’s employer would permit her to accept an advantage (i.e. $10,000) for disclosing patients’ information to a third party. In addition, Eva might have committed an offence of accessing the computer with criminal or dishonest intent, contrary to Section 161 of the Crimes Ordinance.
Since Dr. K and his partners failed to adopt security measures to protect patients’ information, they might have liabilities under the Personal Data (Privacy) Ordinance which requires appropriate security measures to protect clients’ personal data.
Section 1.1.3, 1.1.4 and 1.1.5 of the Code of Professional Conduct issued by the Medical Council of Hong Kong (Oct 2022) also requires doctors to take every step to strengthen the control system to protect patients’ information from misuse.
Dr J is a general practitioner in private practice. On one occasion, his friend Tony, an insurance agent, suggested to him a plan for earning quick money. The Personal Accident Insurance Policy (PAI) offered by his company would provide insurance compensation for an injury caused by an accident resulting in death, permanent or temporary disability to an insured. All claims under the PAI had to be supported by a form issued and signed by a registered doctor in Hong Kong. Tony knew many construction workers and, as a first step, he would suggest to them to buy PAI policies from him. These individuals would make claims later, even though they just suffered from minor injuries. What Dr J could help was to exaggerate the seriousness of the injuries when filling in the worker's claim forms as the attendant doctor, thus resulting in higher compensation payments. The “profit” could then be split among all parties.
Dr J, Tony and the construction workers would commit an offence of conspiracy to defraud by colluding in making bogus insurance claims to deceive Tony’s insurance company for personal gain.
Dr J might violate Section 26.3 of the Code of Professional Conduct (Oct 2022) issued by the Medical Council of Hong Kong for issuing documents containing untrue information.
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