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此講座未獲勞工處接納可用作申請註冊安全主任的專業進修時數。如對註冊安全主任專業進修計劃有任何查詢，請聯絡勞工處註冊及職員培訓科 (電話：2151 3502或電郵： dso_rst_3@labour.gov.hk )。
These webinars have NOT been accepted by theLabour Department to claim Continuing Professional Development (CPD) hours forregistered safety officers. For enquiry about the CPD Programmes for registeredsafety officers, please contact the Registration and Staff Training Division ofthe Labour Department (Tel: 2151 3502 or email: dso_rst_3@labour.gov.hk )。
Introduction
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Michael, the chief engineer of the hotel, was responsible for purchasing spare parts for the repair of the hotel’s air-conditioning system. According to the purchasing policy of the hotel, Michael was required to declare any conflict of interest and obtain quotations from various suppliers for each purchase and recommend a selected supplier to the hotel.
Michael’s high school classmate, Mike, was a spare parts supplier of the hotel but Michael never declared the conflict of interest to the hotel. They agreed that for each procurement exercise, Michael would first disclose the quotations from other companies to Mike, who would then submit his quotation before the submission deadline. Mike’s company often won the supply contract with the lowest bid. In case where no quotations were received for minor purchase items, they falsified multiple quotations, and Mike’s company secured the contracts with the lowest bid.
On the other hand, Mike submitted false invoices to the hotel, falsely claiming that he had delivered all the parts according to the quoted quantities. In reality, the amount of goods delivered was insufficient and Michael assisted in concealing the under-delivery.
Michael is regarded as an agent of the hotel. Without the hotel’s permission, he accepted rebates from Mike for disclosing quotation information of other bidders to the latter so that Mike could secure the contract at the lowest bid. Michael might breach Section 9 of the Prevention of Bribery Ordinance (POBO) while Mike might also commit the offence by offering bribes. Michael conspired with Mike to use false documents to deceive his employer so that Mike could obtain the supply contract, he might breach Section 9(3) of the POBO or other fraudulent offences and Mike might also commit a conspiracy to defraud offence. Similarly, Mike submitted false invoices to the hotel to conceal the under-delivery and Michael assisted to cover up the matter. Both of them might commit the offence of conspiracy to defraud.
Michael and Mike were high school classmates which constituted a conflict of interest. Michael did not declare the conflict of interest to the hotel intentionally and might violate the company’s internal policies. Employees must adhere to the company’s guidelines and procedures when conducting procurement exercises, including the guidelines on handling conflicts of interest. They should avoid conflict of interest as far as possible and make timely declarations strictly following the internal guidelines. Mishandling conflict of interest may distort and cast doubt on the reliability of one’s professional judgement. On the other hand, companies should implement internal monitoring mechanisms and effective checks and balances to ensure that employees properly follow the procurement policies and goods receiving procedures.
Karson, the Chief Engineer of a hotel, was assigned to oversee a $5 million renovation project for the hotel’s main lobby. Kenneth, the proprietor of a construction company, was selected as the contractor for the renovation work.
During the traditional “God Worshipping” ceremony that marked the project’s commencement, Kenneth offered Karson a red packet of $30,000 as a token of gratitude for his assistance in awarding the contract. Karson gratefully accepted the offer.
One month later, while inspecting the project’s progress, Karson noticed that the quality of the marble used in the lobby was substandard and did not meet the tender specifications. Due to the tight schedule and cost implications, Kenneth was reluctant to replace the marble. To cover up the issue, he proposed giving Karson a rebate of 2% of the project sum in exchange for Karson turning a blind eye to the substandard work. Although bewildered by the offer, Karson verbally agreed to the arrangement to avoid damaging the harmonious working relationship with Kenneth.
According to Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence if Karson, a hotel employee, without the permission of his employer, accepted an advantage, i.e., the red packet and the 2% rebate of the project sum, for awarding the renovation project to Kenneth and turning a blind eye to the substandard work. Kenneth might also violate POBO by offering bribes.
According to Section 19 of the POBO, it shall not be a defence to show that the acceptance of advantage is customary in any profession, trade, vocation or calling. Although the red packet was offered during the customary “God Worshipping” ceremony, the court shall determine the legality based on whether the recipient had obtained the permission from his principal.
Although Karson did not actively solicit advantages and might not have ultimately received any commission from Kenneth, the verbal agreement between the two parties to conceal the substantial work still constituted corruption. According to Section 11 of the POBO, once an agreement to offer and accept a bribe is reached, both the offeror and acceptor of the bribe shall commit an offence even if the acceptor claims that he did not actually carry out the act as agreed.
Karson might also breach the Rules of Conduct of the Hong Kong Institution of Engineers (HKIE) which states that a member of HKIE shall discharge his duties with integrity and in accordance with the highest standards of business ethics; and neither give nor accept any gift, entertainment, payment or service of more than nominal value, to or from those having a business relationship with his employer or client without the consent of the latter.
A restaurant group operated a chain of ten restaurants in Hong Kong. The Director of the group, Alpha, was highly experienced in the food and beverage industry but was not familiar with renovation and related issues. As a result, he relied on his staff Ayden, an expert in engineering, when selecting contractors for the company. Ayden was authorised to approve renovation works valued up to $300,000 and contracts exceeding $300,000 would require Alpha’s endorsement.
Later, Ayden approached one of the contractors, Andy, and convinced him to offer a 5% commission on the contract price in return for providing Andy with quotation information submitted by other bidders during each quotation exercise. With this information, Andy constantly secured the contract with the lowest bid. Ayden also split contracts worth $300,000 or above into smaller contracts to avoid Alpha’s scrutiny.
According to Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence for Ayden, an agent of the restaurant group, without the permission of his principal, to solicit and accept rebates from Andy for providing him with quotation information submitted by other bidders. Andy might also commit an offence as the offeror of the bribes. Even if the contracts were not awarded to Andy in the end, once the offering and acceptance of the bribe was established, both of them would be guilty of an offence under the POBO.
Ayden intentionally split contracts to circumvent the established approval procedures, reflecting that the company had not set up an effective checks and balance system. The company should establish an internal audit team to conduct regular and surprise checks to prevent any non-compliance and detect such irregularities at an early stage.
Additionally, a company should implement an effective quotation system to enable the selection of the most suitable contractor for each project as well as to prevent leakage of tender information. To minimise the risk of information exposure, all received quotations should remain sealed until the official deadline for submission. Furthermore, the opening of the quotations should involve at least two authorised persons to prevent any potential tampering with the submitted prices.
As a construction professional, Ayden should not engage in any corruption or malpractice. Greed not only exposed him to criminal liability but also jeopardised his professional career.
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