Soliciting loans from a supplier

A senior merchandiser of a herbal tea manufacturing company was in desperate need of money. He tried to solicit loans from a supplier. But the supplier refused and reported the matter to the manufacturing company.
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A herbal tea manufacturing company sourced its raw materials from various Mainland suppliers. Mr Fong, a senior merchandiser of the company, was responsible for purchasing herbal materials and inventory control.

Recently, Mr Fong who had experienced financial difficulties was in desperate need of money.  He sent several text messages to a Mainland herbal supplier to solicit a loan of RMB60,000. Mr Fong suggested to the supplier that more purchase orders would be placed if the supplier deposited the money into his wife’s bank account in Hong Kong. The supplier made no response to the request. Shortly after, Mr Fong sent another text message to the supplier asking for another loan of RMB30,000 and threatened to cut the purchase orders if it was not granted. The supplier did not agree to his request, as it amounted to solicitation of bribes. The supplier then reported the matter to the management of the herbal tea manufacturer. In view of the severity of the matter and having no tolerance for solicitation of bribes by its staff, the management of the herbal tea manufacturer immediately reported the case to the ICAC.

Case Analysis

Soliciting bribes from overseas companies is also subject to prosecution

Though the supplier, from which Mr Fong solicited bribes, was outside Hong Kong, Mr Fong might still commit an offence of soliciting an advantage under Section 9 of the Prevention of Bribery Ordinance (POBO) as he sent text messages requesting for loans to be deposited into his wife’s bank account in Hong Kong in return for placing more orders.

Businesspersons should be aware that the POBO can apply when part of the corrupt act, e.g. promising, agreeing, soliciting or accepting advantages without permission, takes place in Hong Kong.

Accepting bribes, whether directly or indirectly, is against the law

Loan is considered an advantage under the POBO. Accepting bribes regardless of whether the advantage is directly given to the acceptor or indirectly delivered to a third party is still against the law. In the case study, if the Mainland herbal supplier agreed to deposit the loans into Mr Fong’s wife’s bank account in Hong Kong, as long as it was proven that the receiving account was controlled by Mr Fong or that he was the ultimate beneficiary, Mr Fong would be considered as having accepted the advantage.

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Saving severance pay

Flora was a production supervisor of a handbag manufacturer, which planned to move its Mainland production base to Vietnam. Flora’s boss told her to cut off the central air-conditioning so that the workers would find it intolerable and resign on their own…
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Flora was a production supervisor of a Hong Kong handbag manufacturer at its Mainland production plant.  Expansion programmes were being drawn up and much of the firm’s production in the Mainland would move to Vietnam where rent and wages were relatively lower.  But reducing the factory size in the Mainland involved a large amount of severance pay.  Flora’s boss told Flora to make it easier by cutting off the central air-conditioning so that the workers would find it intolerable to continue working in the heat, thereby resigning on their own.  Flora found it difficult to carry out the orders without qualms.  But her boss emphasized that the most important thing was to meet targeted rates of return.

Should Flora follow the instruction?  Should she at least let the workers know the company’s plan?  Would it be detrimental to her own career development by so doing?

Case Analysis

Flora was facing an ethical dilemma that might compromise her personal values such as honesty, responsibility, respect and compassion. In handling the situation, Flora 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 honesty, responsibility, respect and compassion?
  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 solving the ethical dilemma and choosing the best course of action.

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Awarding contracts through favouritism

A supplier offered an engineer a partnership to his company and shared with him the company’s annual profit, on the condition that the engineer would award more contracts to the supplier.
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A plant engineer of a hi-tech electronic product manufacturer was responsible for maintenance of the company's production facilities.  The plant engineer came to know a maintenance service supplier who frequently treated him to lavish entertainment at clubs and leading restaurants.  Later, the supplier invited the plant engineer to join his company as a partner and promised him a share of the company's annual profits if the plant engineer agreed to award more contracts to him thereafter.  Mindful of the supplier's past generosity, the plant engineer felt embarrassed to turn down the supplier's offer.

Case Analysis

The plant engineer might contravene the Rules of Conduct of the Hong Kong Institution of Engineers if he concealed his personal interest in the supplier's company and secured business for the supplier who might not be the best capable service provider for his company.

Both the plant engineer and the supplier might violate Section 9 of the Prevention of Bribery Ordinance (POBO) if the partnership, which could be an advantage under the POBO, was offered and accepted without the permission of the electronic product manufacturer.

Although entertainment is common in business practice, the plant engineer should avoid accepting excessive entertainment that may affect his objectivity in discharging duties.   He should also check whether his company has any policy on the acceptable level of hospitality offered by contractors/vendors to prevent any conflicts of interest or the potential for such a conflict.

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Principal's permission should be definite and given in advance

Ivan was a shareholder of a manufacturing company in charge of procurement. A supplier offered him commissions as a reward for placing orders. Ivan did not obtain proper permission from the company for accepting the commissions.
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Ivan had been in the toy business for many years. Some years ago he became a shareholder of a Shanghai-Hong Kong joint venture. Because of Ivan's substantial experience in the toy trade, he took charge of the production line, and divided much of his time between Hong Kong and Shanghai.

Ivan often made all the procurement and purchasing decisions, and was often offered with entertainment and gifts by many suppliers. One of these suppliers even went so far to offer Ivan a commission of five per cent of the value of each contract, as a reward for Ivan’s placing orders for industrial chemicals with their company.  Ivan had received a total of HK$250,000 illegal rebates or commissions over an eight-month period. 

The case was brought to the attention of the ICAC, who found that some of the shareholders were not aware of Ivan's acceptance of advantages from this supplier, and that the company did not have in place a clear policy on this issue. Some shareholders claimed they had given Ivan permission to accept commissions to subsidise his social expenses in Shanghai and Hong Kong, but they were not able to state when the permission was granted, let alone the approved amount or the circumstances under which the acceptance was permitted.

Case Analysis

Under Section 9 of the Prevention of Bribery Ordinance (POBO), the principal's permission (in this case, the toy company) has to be given before an agent (Ivan) solicits or accepts an advantage; otherwise the agent has to apply for permission as soon as reasonably possible after the acceptance. In addition, for such permission to be lawful, the principal needs to carefully consider the details of the application before granting permission.

Ivan's company had not stated clearly in advance whether or not its staff members could accept advantages in relation to their official duties. In other words, Ivan did not have the company's permission when he accepted the commission. Furthermore, since he had not applied for retrospective permission from his company afterwards, and his acceptance of the commission was not known to and approved by all shareholders, such acceptance was considered without the principal’s permission.  

Some of the company shareholders recklessly claimed that they had given permission for Ivan to accept commission. However, they had not specified the details and scope of acceptance, and there was no record of the accepted rebates. They also did not take into account the fact that such a policy would affect fairness of competition among their suppliers. This was against both the spirit and requirements of Section 9 of the POBO, so the defence of "permission of the principal" was not substantiated.

As such, companies should proactively formulate rules and regulations to govern the acceptance of advantages by staff at all levels. They should also state clearly in writing the company policy on the nature and maximum amount of advantages staff are permitted to accept, conditions of such acceptance, declaration procedures and enquiry channels, etc. for staff compliance.

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Unauthorized loan from contractors

A project engineer is employed by a chemical product manufacturer to supervise the engineering works performed by its contractors. Due to his job nature, he develops a close companionship with a contractor who has recently undertaken a gas tank repair project of the company.
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A project engineer is employed by a chemical product manufacturer to supervise the engineering works performed by its contractors.   Due to his job nature, he develops a close companionship with a contractor who has recently undertaken a gas tank repair project of the company.

Learning that the project engineer suffers from substantial loss in a recent stock investment, the contractor immediately offers to lend the project engineer $200,000 to help him overcome the financial difficulty.

When time comes for an inspection to be conducted for the gas tank repairing works, the contractor requests the project engineer to turn a blind eye to certain defects found in the finished works, saying that the defects can have little chance to pose a safety hazard.   He also reminds the project engineer of his generosity to him in the past.   The project engineer finds it difficult to require the contractor to rectify all the defects found in the works.

Case Analysis

Besides breaching the Rules of Conduct of the Hong Kong Institution of Engineers, the project engineer may put his employer's interest and public safety at stake if he compromises his objectivity in professional judgment and turns a blind eye to substandard works.

The project engineer should not accept a loan from persons who have business dealings with the company, placing him into a position of obligation that may lead to a conflict of interest.

The project engineer and the contractor may be liable to the charge of a corruption offence under the Prevention of Bribery Ordinance (POBO) for offering and accepting a loan, an advantage under the POBO, in relation to the duties of the recipient's company without his employer's permission.

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A long shot: facing temptation

Customer Services Officer Tony and part-time phone salesman Curtis worked in the same team in a telephone company. Knowing that Tony was keen at golfing, Curtis offered to fix a golf club membership for Tony if Tony released clients’ personal information…
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Tony was a Customer Services Officer of a telephone company.  He tried his best in whatever he was assigned to do.  Very soon, he made a name for himself as a hardworking and responsible young officer.  Soon he got to know a lot of people working in his section.  One of them was Curtis.

Curtis was a part-time phone salesman working with Tony in the same team.  He had contacts everywhere and could gain entry to many exclusive clubs.  He treated Tony to dinners in the evenings, and sometimes even golf trips across the border on Sundays.

Tony picked up golf eagerly. He loved the greens and enjoyed the leisurely pace of the sport.  What was more was the pride of being among the well-to-dos in town.  He wished he had his own golf-membership but he knew it was almost impossible, given his present income and connections.

Curtis could guess what was on Tony's mind and told him, “If you release the personal information of your clients to me, I can fix a membership for you.  You have easy access to the computer records and this should not be a problem.”

Tony knew very well that Curtis would misuse these clients’ personal information for illegal gains.  He did not wish to be part of any scam.  But he could not resist the temptation of the golf membership. It would be decades before he could secure one on his own merits and earnings.  Perhaps it would not be difficult to find another colleague who also had access to the data to be the scapegoat.  Dinner and entertainment by Curtis also flashed across his mind.  Tony began to waver.  Should he say ‘yes’ to Curtis?

Case Analysis

Under Section 9(1) of the Prevention of Bribery Ordinance, it would be an offence if Tony (an employee), without the approval of his employer (the telephone company), accepted an advantage from Curtis for leaking out clients’ personal data. 

According to Section 2 of the POBO, advantage means any gift, loan, fee, reward or commission, employment, contract, service, favour, payment, release or discharge of loan or liability, etc.  Therefore, a golf club membership offered by Curtis can be regarded as an advantage.

Curtis might also violate Section 9(2) of POBO for offering bribes for the same purpose.

Furthermore, Tony and his company might breach the Personal Data (Privacy) Ordinance for disclosure of personal data of his clients with an intent to obtain gain or cause loss to the company’s clients or failed to protect the personal data of their clients.

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Repaying a good turn

Two young engineers opened a start-up with their friends but now wanted to leave. For the start-up to survive, the engineers were asked by the friends to add the start-up into their company’s contractor list…
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Tom and Jerry were mechanical engineers of the Clark Gable Company Ltd (CG Co).  The two were the same batch and had been with the company for only a short time.  Recently, due to the re-organisation of the firm, some people would be laid off.   Mechanical engineering work would then be vested with a larger company, the Rock Hudson  Ltd.  The first ones to go would be those who came last and thus Tom and Jerry's jobs would be in jeopardy.

Tom tried to find a way out for the two of them.   They persuaded two friends, Sam and Tim who had similar training and background, to set up an engineering company called the Catch All Engineering Ltd (CAE).  This would serve as a fallback in case they were really sacked.

Shortly after CAE was set up, the bad news released.   Tom and Jerry were given notice to leave CG Co but, to their great surprise, Rock Hudson Ltd., which had taken over CG Co, offered to employ them to undertake their old duties.

Both of them were overjoyed.  But then they had another problem.  The two would have no more time to take care of matters related to CAE.

So one evening Tom and Jerry treated Sam and Tim to a sumptuous meal and told them that they could no longer share the business with them. Sam and Tim were outraged.  They reprimanded Tom and Jerry for making use of them in the first place and then leaving them in the lurch.  Trying to find a way out, Tim then made a proposal to Tom and Jerry.

Rock Hudson, as a major company, could provide many work opportunities.  The only thing that had to be done was to get CAE on their approved list of contractors.  Tom and Jerry could try to arrange that in whatever way possible.  After all, CAE provided quality service and it had to survive.

Tom and Jerry were in a quandary. They counted themselves most fortunate to be still in employment and with an even larger company. And they wished they could help their friends out.  Should they agree to add CAE to the approved list no matter what and no matter how?  It would do Rock Hudson no harm anyway.

What would happen if they refused?  Would they be indebted to Sam and Tim for the rest of their lives?  How should they handle that?

Case Analysis

Tom and Jerry were facing an ethical dilemma that might put their personal values such as fairness and honesty to challenge. On one hand, they felt obliged to help Sam and Tim out as they were lured into setting up a company upon invitation; on the other hand, it might jeopardise their career if Tom and Jerry tried to put the company on the approved list of contractors without going through proper procedures.  In handling the situation, they 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 for themselves:

  1. Does their decision violate their professional, industry specific, or company code of conduct?
  2. Is their decision against the law?
  3. Does it correspond with her self-values such as fairness and honesty?
  4. Can they disclose the decision to others openly and honestly without misgivings?

The ETHICS PLUS ethical decision making model might be helpful for them in solving the dilemma.

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Using office resources for private business

Eva, a fixed-term contract staff member in a large company, worked efficiently and usually finished her assignments before deadlines. To secure future income, she explored developing her side-business by using the company’s resources.
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Eva was a clever and efficient staff member working on a fixed-term contract in a large firm.  She could easily complete her assignments before the deadlines; but she preferred not letting other colleagues know about that because she did not want extra workload given to her and making other colleagues look less capable.  Being a fixed-term contract staff member, she understood that she would leave the firm at the end of the contract.  Hoping to make her mark one day and to secure future income, she was thinking the possibility of developing her side-business during the office hours by using the firm’s resources while pretending working on certain projects in the office. 

Eva thought to herself: it was not her fault that she was more efficient and capable than other colleagues.  She was only a fixed-term contract staff member and would leave the firm one day.  She needed to prepare herself for the future.

Was that justified for Eva’s secret plan?  What about the interest of the firm?  What factors does Eva need to consider before taking her course of action?

Case Analysis

Eva was facing an ethical dilemma that might put her personal values such as loyalty, responsibility and honesty to challenge. In handling the situation, Eva 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 violations 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 loyalty, 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 solving the dilemma.

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Partial prudence

Felix, a production manager, had two assistants, Gigi and Gordon. While Felix went easy on Gigi’s alleged forged overtime claims because she was a relative of the general manager, Felix treated Gordon more strictly.
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Felix, a production manager of a large toy factory, had two assistants, Gigi and Gordon.  Gigi was the favourite because she was a young charming lady and also a cousin of the General Manager while Gordon was not because he was brash and sometimes outright insolent.  They were both responsible for handling the overtime claims for workers on the toy production.  The Finance Department had complained to Felix a few times about Gigi and raised queries over some overtime claims forwarded by Gigi.  There were widespread rumours that Gigi might have overstated the overtime hours and even forged claims by using ghost workers.  Yet, Felix could not bring himself to ask Gigi for explanations but went easy on her by telling her to be more ‘prudent’ when handling the overtime claims in the future.  On the other hand, the Finance Department contacted Felix again but this time was about Gordon.  They had questions about some discrepancies on the hours of the overtime claims forwarded by Gordon.  However, Felix treated Gordon more strictly and was much firmer on the occasion.

Was Felix being equally fair to his assistants when handling the queries from the Finance Department?  Would it upset the General Manager if Felix was not kind to Gigi at work, which in return affected Felix’s work prospect?  How would it affect his professional image in the eyes of other colleagues?

Case Analysis

Felix was facing an ethical dilemma that might put his personal values such as fairness, responsibility and honesty to challenge. In handling the situation, Felix 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 his professional, industry specific, or company code of conduct.
  2. Is it against the Law?
  3. Does it correspond with his self-values such as fairness, responsibility and honesty?
  4. Can he disclose his decision to others openly and honestly without misgivings?

The ETHICS PLUS ethical decision making model might be helpful for him in solving the dilemma.

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Leakage of confidential information to former colleague

An inspector in a government department copied records from the database of his department and sent them to his former colleague who owned a consultancy company for touting businesses.
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One day at dinner time, an inspector of a government department was chatting with a former colleague who owned a consultancy company.  During the meeting, the inspector mentioned that he had been in financial difficulties recently. The owner of the consultancy company took the chance to lend a helping hand to the inspector by offering him a loan of substantial amount.  At the same time, the owner of the consultancy company requested the inspector to copy to him from the database of the departmental computer and saved them into his personal USB.  Those records concerned the business organizations that had failed to comply with the regulations enforced by his department.  In return for the help from his former colleague, the inspector obtained over 100 records and sent them to the owner of the consultancy company.  The owner of the consultancy company used the records as a sales lead, approaching those business organisations on the list and touting his consultancy services to them. Some of the business organisations received sales calls from the consultancy company almost as soon as they had received warning notices from the government. They suspected corruption and reported the matter to the ICAC.

Case Analysis

According to the Prevention of Bribery Ordinance (POBO) S.4(1), it is an offence for the owner of the consultancy company to offer advantages (i.e. a loan) to induce a public servant (i.e. the inspector of the government department) to abuse his official capacity by leaking confidential information.  The inspector also violated POBO S.4(2) for accepting bribes in his capacity as a public servant.

Although the department may allow staff to copy information from the computer system into removable storage media for operational need, such arrangement opens up opportunities for information to be leaked.  The use of these media and mobile devices should be properly managed in workplace.  Guidelines alone cannot foster a culture of compliance. Corruption results from inadequately implemented controls and staff misconduct. This case demonstrates that rules are of limited use if no checks are carried out for compliance.  Therefore, managers should always keep a careful eye on subordinates and remind staff to handle conflicts of interest properly.  Misuse of personal data may be a breach of the Personal Data (Privacy) Ordinance and can expose the company to damaging lawsuits.  Coaching staff is essential for preventing problems.

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