Under Section 9(1) of the Prevention of Bribery Ordinance (POBO), it would be an offence for Alex (an employee), without the approval of his employer (the consultancy firm), to accept the advantages for exercising work discretion to approve additional claims for Bernard the subcontractor in a private housing estate project.  

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, shares of Bernard’s company offered by Bernard can be regarded as advantage.  

Bernard might also violate Section 9(2) the POBO for offering bribes to Alex.

Moreover, according to the Rules of Conduct of Hong Kong Institute of Engineers, members are required to discharge his professional responsibilities with integrity, dignity, fairness and courtesy.  By agreeing with Bernard’s suggestion, Alex might also violate his professional code of conduct which might lead to disciplinary sanction, e.g. suspension of professional qualification.

Under Section 9(1) of the Prevention of Bribery Ordinance (POBO), it would be an offence if Brian (an employee), without the approval of his employer (the property management firm), accepted an advantage for turning a blind eye on the defects caused by the contractor’s substandard work.  

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 post of property manager offered by the representative of the property developer can be regarded as an advantage.  

The representative of the property developer might also violate Section 9(2) POBO for offering bribes for the same purpose.

The senior engineer might violate the Rules of Conduct of the Hong Kong Institution of Engineers if he abused his official authority to manipulate tender requirements in exchange for an advantage in the form of a golf club membership. He failed to fulfil his obligation to protect the interests of his employer and clients as the contractor might not provide the best service to his organisation, not to mention the excessive construction fee charged.

If the senior engineer had not obtained prior permission from his employer to accept the advantage, he might contravene Section 5 of the Prevention of Bribery Ordinance (POBO), which prohibits a public servant from accepting illegal advantages for giving assistance in securing contracts from the public body. And the contractor, the offeror of advantages for the same purpose, could also be liable to prosecution under Section 5 of POBO.

The exercise of discretion in approving claims should be based on an objective assessment of the project's financial requirements.  To comply with the Rules of Conduct of the Hong Kong Institution of Engineers, the senior engineer should avoid his professional judgement being clouded by the offer of advantages.

The senior engineer was the agent of the consultant firm (the principal) as he oversaw the housing project.  Without the principal's consent, he should not receive an advantage - free golf trip – when dealing with the principal's affairs.  The offering of the free golf trip by the contractor as an inducement for senior engineer to misuse his authority in approving extra funds for to the project would contravene Section 9 the Prevention of Bribery Ordinance (POBO). The senior engineer who accepted the offer would also contravene the law.

Corruption will inflate project costs and impair fair competition.  The quality of work would also be in question if the sub-contractor was not chosen by an objective assessment of its competence and capability.

If the assistant engineer leaked the tender information to the sub-contractor, he would breach the Rules of Conduct of the Hong Kong Institution of Engineers, which prohibited engineers from disclosing confidential information and require them to act in the best interest of the employers.

He might also commit a corruption offence under Section 9 of the Prevention of Bribery Ordinance (POBO) if he accepted an advantage as a reward for leaking the confidential tender information to the sub-contractor.

Although the “laisee” might be given in the Lunar New Year, the assistant engineer could not excuse himself by saying that the acceptance was a customary practice during festive seasons as that would not be accepted as a defence under the POBO.

The senior engineer might breach the Rules of Conduct of the Hong Kong Institution of Engineers, which require an engineer to safeguard confidential information in relation to his employer and to refrain from receiving any advantage for disclosing such information or making use of it for personal gain.

Being an employee of his company, the senior engineer might also breach Section 9 of the Prevention of Bribery Ordinance if he received an advantage to leak confidential information.  The offeror of such advantage would also breach the same law.

Although the advantage was solicited by the senior engineer's brother, the senior engineer himself could still be liable to the charge of a corruption offence as the advantage was to be received on his behalf.

As a government employee, the chief engineer was not permitted to accept advantage in connection with his work. In soliciting illegal advantage from the land development company, he had violated Section 4 of the Prevention of Bribery Ordinance (POBO).

The chief engineer's plot failed before he could do anything to secure the project, but he could not escape from legal sanctions. Under Section 11 of the POBO, if it could be proved that an advantage was given to the acceptor as a reward for favours done to the offeror, the following should not be considered a defence: (a) “he did not actually have the power so to do”, (b) “he accepted the advantage without intending so to do” or (c) “he did not in fact so do.”

Business operators or employees who come into frequent contact with government employees have to be particularly careful when managing their relationship with them as they are governed by stringent laws and regulations, restricting their acceptance of advantages in their public and private capacities. The offering of advantages to government officers may also constitute a violation of the POBO.

Case Analysis

The clerk of work is an agent of the architectural firm.  He accepted advantages (i.e. money and payment of expenses) from the proprietor of the engineering company for conniving at the latter’s substandard works, which was related to the affairs of the architectural firm (i.e. his principal).  Without the permission of the architectural firm to accept such advantages, he had contravened Section 9(1) of the Prevention of Bribery Ordinance (Cap.201) (POBO).  The proprietor of the engineering company had also violated Section 9(2) of the POBO by offering the advantages under such circumstances.  Both the clerk of works and the proprietor of the engineering company were sentenced to imprisonment.   

Case in Perspective

Site supervisory staff carry a pivotal role in ensuring the quality and safety of all construction works.  They should diligently inspect and check the works against the required standard, and require contractors to rectify any irregularities and defects identified.  In this case, however, the clerk of works breached the trust placed in him by his employer (i.e. the architectural firm) and abused his authority for personal gain.  Apart from prejudicing the interest of his employer, his act might also put public safety at stake. 

A company or an organisation implementing construction projects should put in place adequate safeguards to ensure proper works supervision by site supervisory staff.  For example,

(a) Draw up a comprehensive supervision plan to set out the critical works items requiring inspection, the frequency and the rank of staff responsible for such inspection;

(b) Require inspection staff to record the inspection details, including time, location and description of works inspected and inspection results; and, as far as practicable, make use of technologies such as mobile applications that enable on-the-spot logging;

(c) Arrange independent technical audits on inspection work; and

(d) Issue guidelines on acceptance of advantages and entertainment, handling conflict of interest, etc.

Case Analysis

The supplier offered an advantage (i.e. cash) to the engineer, who was an employee (i.e. agent) of the engineering company (i.e. principal), as an inducement or reward for showing favour in relation to his principal’s business by awarding the contract back to the supplier’s sub-contractor.  The supplier contravened Section 9(2) of the Prevention of Bribery Ordinance (Cap.201) (POBO).  Had the engineer accepted the bribe without the permission of his principal, he would have contravened Section 9(1) of the POBO. 

Case in Perspective

The use of bribery to obtain contracts will inflate the operation costs of the bidder and cause unfairness to other bidders who observe the principle of fair play.  The services procured may also fall short of standard and affect the overall quality of the job because no supplier can go on absorbing corrupt payments and still give the quality you want.  It is crucial for management to provide integrity training so that staff at all levels understand the anti-corruption laws and stay vigilant to the risks of corruption when performing their duties. 

The positive action of the engineer is a good illustration of the proper action to take when one is being offered a bribe or has discovered malpractices.  Staff members should refuse any bribes and promptly report any suspected malpractices or illegal activities to law enforcement agencies including the ICAC and/or the management.  Companies should establish a clear and confidential whistle-blowing mechanism.

It is against the law to offer any advantage, whether directly or indirectly, to any  person  or  to  a  third  party having  connections  with  that  person,  if  the advantage is proven to have been offered in relation to his duties. Although David offered an advantage to Fred under the pretext of giving him a wedding gift, both of them were still guilty of a bribery offence.

The illegal commission was offered to an employee of a Hong Kong company by a company based outside Hong Kong. However, if any part of the act of bribery (including offering, soliciting or accepting a bribe) takes place in Hong Kong, the case may still be pursued by the ICAC under the Prevention of Bribery Ordinance (POBO).

Likewise, if non-local residents request their Hong Kong counterparts to deposit bribes into a Hong Kong bank account, both parties will be in breach of the POBO as part of the bribery transaction takes place in the territory.