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 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.

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 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.

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.

The sales representatives committed an offence under Section 9(3) of the Prevention of Bribery Ordinance (POBO) offence if they had submitted false documents i.e. claims of commissions or entertainment expenses to deceive their principal i.e. the company.   

Furthermore, the offering of illegal commissions to agents of business clients with a view to obtaining or securing business might constitute a bribery offence under the POBO.   Agents of clients should obtain permission from their principals, i.e. their employers, for accepting advantages or commissions in relation to their work.  As approval should be given by the principal of the acceptor not the offeror, the Managing Director’s approval on the expense payments would not be considered the principal’s approval in this case.  

Although the clients were located in the Mainland, 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 POBO.  In any case, customary trade practice could not be a defence in any proceeding for a bribery offence under the POBO.  

Andrew should bring the issues to the attention of the company management and avoid involve in any acts that might call his integrity and professionalism into question. He should take into account his own views on ethics and legality and offer advice to the management if there were better alternatives.  

If corruption involving senior management was suspected, and all his attempts to find legal and ethical alternatives were rejected, then Andrew should consider resigning from the company and refuse to carry out any illegal transactions. He should consider reporting corruption to the ICAC and other crimes to the police.

The offering of “reward” by Billy as an inducement for Jimmy to misrepresent the financial position of B&B Co. Ltd. was a breach of Section 9 of the Prevention of Bribery Ordinance (POBO).  Jimmy should refuse Billy’s offer and make it clear to Billy that while B&B Co. Ltd. was an important and valued client of his firm, no financial inducement or veiled threat would cause him to compromise his independence and professional integrity in connection with either the company's forthcoming audited financial statements or any other professional engagements carried out for B&B Co. Ltd.

Jimmy might consult a fellow partner at this stage in considering his alternative responses to this sensitive situation and in clarifying his own professional responsibilities in the circumstances, although remaining mindful at all times of the need to preserve client confidentiality.  In the event that Jimmy had no appropriate internal channel for such consultation, he might consider consulting the Hong Kong Institute of Certified Public Accountants.

As Billy’s close friend, Jimmy should explain to Billy that the use of “whatever device he could to improve the financial position of B&B Co. Ltd.” was inappropriate, and that he and his firm would endeavor to help the company overcome the current challenges by legitimate means.

If Billy was unwilling to change his position and insisted on carrying through his threats, Jimmy should point out that, having substantially completed the audit that they were engaged to perform, his firm would propose to issue a qualified report if B&B Co. Ltd.’s financial statements did not give a true and fair view. 

Having fulfilled their statutory responsibility by reporting to the shareholders, Jimmy should explain that his firm would tender their resignation.  Details of these circumstances would also be given to any proposed successor firm of auditors in etiquette correspondence.  In the event that B&B Co. Ltd. attempted to remove Jimmy's firm from office, Jimmy should explain that he would consider making similar representations to the shareholders as entitled under the Companies Ordinance.

Jimmy was suggested to report the attempted bribe to the ICAC to safeguard his own interests.  

Ben could consider the following major factors when handling Dale’s request:

Professional / Company code of conduct

The Hong Kong Institute of Chartered Public Accountants (HKICPA) requires a professional accountant to comply with relevant laws and regulations, and avoid any conduct that the professional accountant knows or should know might discredit the profession.  Also, a professional accountant needs to comply with the fundamental principles of integrity and objectivity as stipulated in the HKICPA’s Code of Ethics for Professional Accountants which requires an accountant to be straightforward and honest in all professional and business relationships and avoid any conflict of interest situations.   Meanwhile, Ben also needs to observe his company’s code of conduct governing the above behaviours.

Legal Requirements

Ben might violate the Section 9(1) of the Prevention of Bribery Ordinance (POBO) if he accepted the advantage (luxury clubhouse membership) offered by Dale for helping Dale to obtain the bank loan by manipulating ABC’s accounting records; whereas Dale might violate Section 9(2) of the POBO by offering bribes.

Uncompromising Self-values

Helping Dale to get a bank loan by manipulating ABC’s accounting records might undermine Ben’s self-values of honesty, integrity and responsibility to his accounting firm.

Sunshine Test

If Ben accepted Dale’s offer and helped him to get the bank loan, he would fail to disclose his decision and the situation openly and honestly without misgiving.

When facing the above situation, Ben should avoid involve in any acts that might call his integrity and professionalism into question. He must take into account his own views on ethics and legality and offer advice to Dale if there were better alternatives.  

Zero tolerance to attempted bribes

If Dale insisted on asking for Ben’s help to get the bank loan, Ben should decline the advantage offered by Dale and report the attempted bribe to his accounting firm and the ICAC as soon as possible.

It would be an offence of Section 9 of the Prevention of Bribery Ordinance (POBO) if Teddy, as an employee of the law firm, without the approval of his employer, accepted the advantage (equal share of the mortgage loans) offered by Barry for assisting Barry to deceive the bank by preparing fake conveyancing documents. Barry might also violate the POBO for offering bribes. 

Moreover, Barry might also violate Section 9(3) of POBO for using false documents to deceive his principal (the bank) and Section 123 of the Banking Ordinance.  Both Barry and Terry might be liable for fraud and conspiracy to defraud.

Under Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence for any agent to accept advantage without the permission of his principal when conducting his principal’s affairs or business. Baldwin, as an employee of the law firm, might violate Section 9 of POBO, since he, without the approval of his employer, accepted the cash offered by Timothy and his wife for assisting them in the criminal case. On the other hand, Timothy and his wife might also violate POBO for offering bribes. 

Even though the outcome of the criminal case was beyond Baldwin’s abilities, according to Section 11 of POBO, the offeror (i.e. Timothy and his wife) and the acceptor (i.e. Baldwin) of bribe would still commit an offence irrespective of whether or not the purpose of the bribery has actually been carried out.