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Abandoning integrity for personal advantages

Bill and Anna, were estate agents of the same agency. Bill stole Anna’s chance to sell the property to a client at a lower price and then tried to re-sell it to Anna’s client at a higher price.
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Mrs Mo, a flat owner, commissioned an estate agency as the sole agent for the sale of a shop premises priced at $13.6 million. The company assigned Anna and Bill to take care of the matter.

One day, Anna found a buyer who offered to buy the premises for $14 million. As Anna could not reach Mrs Mo at that moment and had to leave office for an urgent meeting, she asked Bill to contact Mrs Mo. When Bill contacted Mrs Mo, he told her that a buyer had offered $12.8 million for the premises. Bill eventually persuaded Mrs Mo to accept the offer and sign a provisional sale and purchase agreement.

The next day, Bill told Anna that the shop premises had been sold to his client Mr Sung who was willing to re-sell the premises to Anna’s original buyer as a confirmor. Sensing something was suspicious, Anna reported to her supervisor that Bill might have breached the company’s code of practice by showing favour to Mr Sung to sell him the premises at a lower price.

While the estate agency conducted an internal investigation, Bill begged Anna to falsely claim that she had only met the original buyer who made the $14 million offer after the provisional sale and purchase agreement had been signed. Anna immediately refused.

In fact, the whole situation happened because Bill did not want to share the commission equally with Anna. Instead of co-operating with Anna, he wanted to handle the transaction alone. He thus sought assistance from his friend Mr Sung in buying the shop at a lower price and then re-selling it as a confirmor to Anna’s original buyer at a higher price. Through this way, Bill not only could receive more than $50,000 commission from both the buyer and seller, he could also share the profits from the price difference with Mr Sung. The estate agency refused to pay Bill the commission and reported the situation to the ICAC.

Case Analysis

It might seem that Bill was being clever, but actually he was being foolish. He committed a criminal offence of fraud under the Theft Ordinance and seriously undermined professional ethics by disregarding the interests of his clients. 

Bill’s unethical behaviour breached the Code of Ethics promulgated by the Estate Agents Authority. His failure to observe and comply with the law and the Code of Ethics might render him not being a fit and proper person under the Estate Agents Ordinance to hold license and disciplinary action might be taken against him.

On the other hand, the management of the estate agency showed zero tolerance for such malpractices by treating Anna’s complaint seriously and taking action against Bill’s unethical and illegal behaviour. Its integrity management enabled staff to understand clearly the ethical standards the company required of them and whistle-blow any misconduct in confidence. This could deter staff from further unethical behaviour. It could also attract and help retain ethical employees, thus helping the company to earn greater profits and goodwill in a long run.

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Commit a crime in the face of heavy debts

Clement, an employee of an estate agency, was entrusted with handling a village-type house development project. In order to repay his debts owed to a villager, he conspired with the villager to deceive payment from his employer.
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Director Mr Lai was a village-type house developer and a director of an estate agency. His agency had acquired a land lot in the New Territories for constructing village-type houses.

Mr Lai assigned the project to his assistant Clement who held an estate agent’s licence. Clement knew Mr Shum who claimed himself a village representative. They often gambled together and Clement ended up owing money to Mr Shum. When Clement failed to make a repayment, Mr Shum asked Clement to deceive Mr Lai by making use of Mr Lai’s eagerness to get the project underway so that Clement could repay the debts. Clement felt he had no alternative but to do as Mr Shum instructed.  One day, Clement told Mr Lai that Mr Shum, the village representative, had asked the company to donate $500,000 to the village fund. Otherwise, the village residents would object the coming village-type house construction project. To avoid complications, Mr Lai made a cheque to Mr Shum and Clement returned a false receipt on Mr Shum’s behalf.  

Later, Mr Lai suspected that corruption might be involved in the incident and reported it to the ICAC.  After investigation, it was found that Mr Shum was not a real village representative, but only an ordinary villager.

Case Analysis

Clement had been entrusted with handling the village-type house development project and should have cherished the opportunity to show his abilities. Unfortunately, his gambling habit led him to personal finance problems. Driven into a corner, he conspired with Mr Shum to deceive Mr Lai’s company and abused his employer’s trust in him. Clement knew very well that the $500,000 solicited by Mr Lai was not for donation purpose. By using a false receipt to deceive his principal Mr Lai, Clement might be in breach of Section 9(3) of the Prevention of Bribery Ordinance. Mr Shum might also commit a deception offence under the Theft Ordinance for falsely represented himself to Mr Lai as a village representative. 

As Clement and Mr Shum had business dealings, socialising might have been unavoidable. But Clement should have kept a suitable distance from Mr Shum and, above all, should not have had any pecuniary associations so that he would not have to show favouritism, or to get caught in a work dilemma where it was difficult to stay neutral, or to do illegal acts for personal gain. He should avoid engaging in frequent gambling activities with his clients to avoid involving in any monetary dealings that might lead to conflict of interest situation.

Clement would also breach the Code of Ethics promulgated by the Estate Agents Authority for engaging in illegal activities and bringing discredit and/or disrepute to the estate agency trade. His failure to observe and comply with the law and the Code of Ethics might render him not being a fit and proper person under the Estate Agents Ordinance to hold license and disciplinary action might be taken against him.

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Poor financial management that leads to risk-taking

Working in an estate agency, Ronald had recently completed a transaction and asked one of his clients to deposit the commission into the bank account of a consultancy firm which was set up by himself.
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Ronald worked in an estate agency. His employer trusted him and provided him with training; yet Ronald felt he could have done better. Ronald planned to marry his girlfriend in a year’s time. To prepare for the costly wedding, he applied for a huge loan from a finance company, putting himself in a position where he had to work very hard to repay the debt. After successfully renting out Ms Yeung’s flat at $30,000 per month, Ronald asked Ms Yeung to deposit the $15,000 commission into the bank account of a consultancy firm which was set up by himself. Ronald also lied about the consultancy firm being a subsidiary of the estate agency which he worked for. To conceal the whereabouts of the commission, Ronald submitted a false report to his employer stating that Ms Yeung’s tenancy transaction had been facilitated by a consultancy firm and Ms Yeung would only be willing to pay commission to the consultancy firm. Ronald’s employer was suspicious about these arrangements and checked the consultancy firm’s details. Ronald’s dishonest act was revealed and a report was made to the ICAC.

Case Analysis

Ronald had become entangled in debt and deliberately used his own consultancy firm to embezzle commission due to his employer. Under Section 9(3) of the Prevention of Bribery Ordinance (POBO), it is an offence for any agent to use false/ erroneous/ defective receipt/ account/ other document with the intent to deceive his principal. Ronald wilfully used a false document with intent to mislead the estate agency about Ms Yeung’s transaction.  He might violate Section 9(3) of the POBO.

Ronald was disloyal to his employer. He defied the law out of greed and ruined his own future.

As a licensed estate agent, Ronald might also breach the Code of Ethics of the Estate Agents Authority which states that estate agents and salespersons shall refrain from activities during their practice which may infringe the law.

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Acceptance of advantages without separating public from private interests

An estate agent helped his cousin to buy some commercial units at a discounted price. In return, the cousin gave him a handsome amount of tea money.
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Gordon was an estate agent in an estate agency.  Mr Yu, a client, commissioned Gordon to sell four commercial units, specifying a minimum average price of $20,000 per square foot. As Gordon knew his cousin Johnny planned to invest in commercial buildings in that district, he recommended Mr Yu’s units and sold two of them to Johnny at around $18,000 per square foot. To thank Gordon, Johnny offered him “tea money” of $150,000. Gordon then found another buyer, Mr Pau, for the remaining two units, asking $24,000 per square foot in order to fulfil Mr Yu’s price instructions. After several negotiations, the transaction was concluded at $22,000 per square foot. Although Gordon succeeded in selling Mr Yu’s units at an average price of $20,000 per square foot, Mr Yu suspected that Gordon had favoured Johnny and corruption was involved. He therefore reported the case to the ICAC. Gordon argued in court that the transaction had been concluded according to Mr Yu’s wishes and neither the estate agency nor Mr Yu had suffered any loss. However, the estate agency employing Gordon had stipulated that no agent was allowed to accept any private advantage from clients. The seller Mr Yu was also dissatisfied with Gordon’s behaviour.

Case Analysis

Under Section 9 of the Prevention of Bribery Ordinance (POBO), it is an offence for any agent, without the approval of his principal, to solicit or accept an advantage as a reward for or an inducement to perform an act in relation to his principal’s interest or business.

Gordon privately accepted a reward of $150,000 from his relative Johnny without the permission of his principals (namely the estate agency and Mr Yu). Hence, he might commit the offence of accepting a bribe under Section 9 of the POBO. Johnny might also commit an offence by offering a bribe.

Gordon and Johnny were relatives. Gordon should have declared this conflict of interest to the estate agency and Mr Yu.

When handling a transaction involving a relative and a client, Gordon should have remained neutral. Instead, he favoured his relative, resulting in loss to both Mr Yu and Mr Pau, the other buyer. Although Mr Yu had set a minimum average transaction price per square foot, Gordon should have tried to obtain the best possible price for the seller according to market conditions. Mr Pau had to acquire units at a higher price because of Gordon’s corrupt act.

Gordon’s behavior might also violate the Code of Ethics of the Estate Agents Authority which states clearly that estate agents or sales persons shall refrain from activities during the practice which may infringe the law. They shall provide services to clients with honesty, fidelity and integrity and protect and promote the interest of their clients, carry out the instruction of their clients in accordance with the estate agency agreement and act in an impartial and just manner to all parties involved in the transaction. Furthermore, any conflict of interest in relation to the property shall be disclosed to their clients that they are so acting.

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Forging documents for personal gain

Vincent, an estate agent, forged a Provisional Agreement for Sale and Purchase with a view to embezzling his employer’s commission.
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Vincent, an estate agent of an agency, facilitated the sale of Mr Leung’s flat to Mrs Pong at a price of $34 million. In line with regular practice, both buyer and seller had to pay 1% of the purchase price as commission to the agency. After the transaction was completed, Vincent showed an agreement and a fax to Mr Leung and Mrs Pong. The agreement indicated that the transaction had been carried out through two estate agencies, Vincent’s agency and Agency B. The fax was issued by Vincent’s agency and indicated that Agency B would collect the commission on its behalf. As the agreement and fax bore the signatures of the persons responsible in both estate agencies as well as company chops, Mr Leung and Mrs Pong paid the commission accordingly. In fact, Vincent had forged the agreement and fax document with a view to embezzling his employer’s commission using Agency B’s account. Agency B was later to return 80% of the commission it received to Vincent. Meanwhile, Vincent told his employer that another estate agency had beaten him to the transaction. Vincent’s agency made a report to the ICAC after suspecting that Vincent had been bribed to refer business to another estate agency.

Case Analysis

Vincent felt that, as he alone had facilitated the transaction, he alone should enjoy the commission. However, he had forgotten that, as long as he was an employee of his agency, he had a responsibility to protect his employer’s interests, one he should not ignore in light of personal interests.  

Vincent might commit an offence of fraud under Section 16A of the Theft Ordinance for conspiring with another estate agency to embezzle commission for personal gain. He not only seriously harmed his employer’s interests, but also betrayed his company’s trust in him.

Vincent facilitated the transaction between Mr Leung and Mrs Pong as an employee of his agency. If Vincent had an intent during the commission-swindling process to  use false documents to mislead his employer or conceal the transaction, he might have breached Section 9(3) of the Prevention of Bribery Ordinance and would be liable for a maximum penalty of 7 years’ imprisonment and a fine of $500,000.  

Vincent would also breach the Code of Ethics promulgated by the Estate Agents Authority for engaging in illegal activities and bringing discredit and/or disrepute to the estate agency trade. His failure to observe and comply with the law and the Code of Ethics might render him not being a fit and proper person under the Estate Agents Ordinance to hold license and disciplinary action might be taken against him.

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Manipulative deal-closing

Holly was a real estate agent and her boss had taught her some “deal-closing techniques”. Holly was struggling whether she should listen to her boss or not…
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Holly was a real estate agent.  She was amazed to find that her Sales Director and other colleagues used various “deal-closing techniques” on prospective clients.  The most effective technique was what they called “the other party”.

Pushing the potential buyer for a decision, Holly’s colleagues would create a “buy-now-or-never” atmosphere by all means.  The colleagues would misinterpret the availability of the property concerned by saying that it was also viewed by many interested buyers of other colleagues.  In front of the potential buyer, they also either pretended to make lots of enquiries or engaged in a heated debates with other colleagues about the availability of the property.  The purpose was to increase the purchase desire as well as to impose pressure on the potential buyer.

According to Holly’s boss Mark, it was a real estate agent’s job to "help the potential buyer with a purchase decision".  Holly had her scruples and disagreed with such psychological manipulation.  However, after six months, she found herself lagging behind in terms of sales figures.  Mark remarked that Holly lacked ‘sales techniques’.

Should Holly also adopt the psychological manipulation that her colleagues had found so successful?   Or should she try to close deals in her own way, and be upfront and honest with her clients?

Case Analysis

Holly was facing an ethical dilemma that might put her personal values such as honesty, responsibility and fairness to challenge. In handling situation like this, Holly should identify the relevant facts and take stock of all stakeholders concerned. The following factors should be taken into consideration when identifying viable alternatives and choosing the best course of action:

  1. Any violation to her professional, industry specific, or company code of conduct?

  2. Is it against the Law?

  3. Does it correspond with her self-values such as responsibility and honesty?

  4. Can she disclose her decision to others openly and honestly without misgivings?

The ETHICS PLUS ethical decision making model might be helpful for her in resolving her ethical dilemma.

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Offering an advantage to obtain business is in breach of the law

Ken was a bank manager. In order to boost his work performance, he proposed to offer commissions to a property agent for referring clients to apply for mortgage loans through him.

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Ken was a branch manager of a local bank who was always keen for promotion. Unfortunately, he had been stuck in the same position in the bank for nearly ten years while his peers had all been promoted to senior positions. Recently, a nearby private housing development was opened for sale and had prompted the branch to initiate a marketing plan to attract new buyers. Ken's brother-in-law, Philip, was a property agent who was also trying to find business opportunities here.

During a family gathering, Ken told Philip that his boss was considering his promotion and added that it would be a great boost to his prospects if he was able to secure a substantial market share of the mortgage loans on the estate. Ken also emphasised how difficult such a task was in the face of intense competition with other banks.  On hearing this, Philip agreed to help Ken by referring his potential clients to apply for mortgage loans in Ken's branch. As a token of thanks, Ken proposed to offer Philip commissions.

Case Analysis

Philip must obtain the consent from his principal to accept the commission, otherwise both Philip and Ken would breach Section 9 of the Prevention of Bribery Ordinance. Without the approval of Philip’s principal, Ken would commit an offence of offering a bribe while Philip would commit an offence of accepting.

Although at the end of the day Philip might not be able to fulfil the agreement and Ken might not reward him, they were still liable to prosecution if a verbal agreement of corruption had been reached.

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Offering advantages in return for confidential information

An estate agent gave ‘a token of thanks’ to a manager of a listed company who was responsible for property redevelopment for leaking out confidential information.
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Mr To, a manager of a listed company, was responsible for acquiring properties for his company which engaged in property redevelopment. Through his work, Mr To became acquainted with an estate agent Tony who frequently treated Mr To lavish dinners and unconditionally lent him $50,000 to solve his financial difficulties.

One night when they were having dinner, Mr To told Tony some confidential information about the acquisition plan of his listed company. As a token of his gratitude, Tony deposited $100,000 into Mr To’s bank account. Upon receiving the confidential information, Tony immediately arranged for his friends and relatives to rent and buy the premises that were to be acquired soon. Before long, the listed company announced its acquisition plan covering the premises acquired by Tony’s friends. Tony’s friends were granted compensation which were then shared among Tony and his friends.  Tony’s scam eventually surfaced and the listed company stopped processing all compensation applications made by Tony’s friends.

Case Analysis

Under Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence for Mr To (an employee), without the approval of his employer (the listed company) to accept advantage (i.e. $100,000 offered by Tony) as a reward for leaking out confidential information relating to the company’s property acquisition plan.  He had also abused the trust placed on him by his employer for misusing the company’s information for personal gain.  Tony might also violate POBO by offering bribes.

Furthermore, according to the Code of Ethics of Estate Agents Authority, estate agents or salespersons shall refrain from activities during their practice which may infringe the law. They shall, in the course of business, provide services to clients with honesty, fidelity and integrity, and protect their clients against fraud, misrepresentation or any unethical practices in connection with real estate transactions. Tony had breached the Code of Ethics for offering bribes and engaging in fraudulent activities in deceiving compensation.

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Abusing power for personal gain

Mr Kwok, manager of a listed company, was responsible for his company’s property investment. He solicited “commission” from two estate agents who sourced suitable properties for his company.
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Mr Kwok, a manager of a listed company, was responsible for the company’s investment in the property market, in which several ten million dollars was usually involved.  Mr Kwok commissioned two estate agents Raymond and Freddy from two different estate agencies to source suitable properties for his company.  He always told Raymond and Freddy that there were many estate agents approaching him for business.  Facing fierce competition, Raymond and Freddy offered an ‘under-the-table’ commission of $520,000 and $1.7 million respectively to Mr Kwok for recommending the listed company to buy their properties.

When the listed company discovered that corruption might be involved in various property investment transactions which Mr Kwok handled, the company reported it to the ICAC.

Case Analysis

Mr Kwok, as an employee, might commit an offence under Section 9 of the Prevention of Bribery Ordinance (POBO) for, without the approval from his employer, soliciting and accepting an advantage (i.e. the ‘under-the-table’ commission offered by Raymond and Freddy) for recommending the listed company to buy their properties.  Meanwhile, Raymond and Freddy both might also violate Section 9 of POBO for offering bribes.

Individual ethics and corporate culture are among the key factors which shape a company’s corporate governance. Company directors and senior executives serving the company should serve as role models.

Mr Kwok, who held an influential position at the company’s property investment, should have used the power bestowed on him by the listed company to protect its interests.  However, Mr Kwok abused his company’s trust for personal gain and violated the law instead.  

It is important for the company to work on an ethical culture at the corporate level through practicing ethical leadership, giving clear guidance on ethical standard expected of staff, managing integrity training and putting in place a comprehensive internal control system which helps company prevent and detect crime or malpractices as early as possible.

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Bribery spoils fair play

A listed company exclusively authorised an estate agency to sell a factory building unit by tender. The estate agency manager and his subordinate were both offered “lai see” for showing favour to one of the tenderers.
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A listed company exclusively authorised an estate agency to sell a factory building unit by tender. Estate agency manager Mr Chan and his subordinate Jenny were responsible for tender matters. Jenny soon found a client, Mr Lai, who was willing to pay $19.6 million for the unit.

Meanwhile, Sidney, the proprietor of a small estate agency, was facing intense competition and trying every means to gain business.  Knowing that Mr Chan was responsible for the factory unit transaction, Sidney spared no effort in looking for a buyer. He also offered a $100,000 “lai see” to Mr Chan and Jenny to ensure that his client could successfully buy the property. In light of the advantage offered by Sidney and upon Mr Chan’s instructions, Jenny deliberately misled other prospective tenderers, including Mr Lai, into lowering their tender price or withdrawing. ICAC officers later arrested Sidney and Mr Chan in a restaurant where they were discussing how to hand over the bribe. Initially, Sidney denied making a corrupt deal with Mr Chan, but Mr Chan chose to co-operate with the ICAC and revealed everything.

Case Analysis

To protect the interests of investors, the listed company prohibited their agents or employees from abusing their official positions for personal gain. Mr Chan and Jenny were commissioned by the listed company to sell the property. They had to comply with the listed company’s policy on acceptance of advantages and were not allowed to solicit or accept any work-related advantage. Under the Section 9 of the Prevention of Bribery Ordinance (POBO), it is an offence for any agent, without the approval of his principal, to solicit or accept an advantage as a reward for or an inducement to perform an act in relation to his principal’s affairs or business. The offeror of the bribe shall also be guilty of the offence. Mr Chan and Jenny might commit an offence under Section 9 of POBO for accepting bribe. This went against the spirit of the tender system and also prejudiced the buyer’s interests.

By attempting to secure business through corrupt means, Sidney’s action went against the spirit of fair competition and damaged the reputation of estate agency trade. He might also commit an offence under Section 9 of POBO for offering bribe.

Furthermore, they all might have breached the Code of Ethics of the Estate Agents Authority which states that estate agents and salespersons shall refrain from activities during their practice which may infringe the law.

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