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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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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Awarding subcontracting orders for monetary rewards

Production manager Mr. Wong was deployed to oversee the whole mechanical production process in the mainland and award production order to suitable factories. Two manufacturers offered him kickback for placing more production orders.
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A mechanical engineering company in Hong Kong had operated a factory in the Mainland.  Its production manager Mr. Wong was deployed to oversee the Mainland mechanical production process. Mr. Wong had worked in the company for eight years and won the praise and trust from his boss. Since some of the production procedures were subcontracted to other local manufacturers, Mr. Wong was also responsible for sourcing suitable factories and awarding the production orders. As such, Mr. Wong got acquainted with many other manufacturers, and was frequently invited to social activities after work. Two of them suggested offering him a kickback as a reward for placing more production orders and they would inflate the price of the orders to compensate the extra cost, i.e. the kickback to Mr. Wong. Succumbing to the temptations of monetary rewards, Mr. Wong accepted RMB575,000 in bribes and then deposited the bribe money into his bank account in Hong Kong

Would Mr Wong breach any laws? How could companies avoid such malpractices from happening?

Case Analysis

Under Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence for Mr Wong (an employee), without the approval of his employer, to accept advantages (i.e. RMB575,000 illegal kickback from the two manufacturers) for placing more production orders with the two manufacturers.  The offeror of the bribe would also be guilty of the offence.  It shall be an offence under POBO if any act of bribery (includes promising, agreeing, soliciting or accepting advantages without permission) takes place in Hong Kong. By depositing the bribe money back into the bank account in Hong Kong, Mr. Wong might still violate the POBO.

Mr Wong’s close relationship with the manufacturers had affected his objectivity when discharging his official duties.  Though entertainment is an acceptable form of business behaviour, many past cases have shown that small favours such as free meals and small gifts etc. always breed corruption. It is therefore important for business manager to remind their staff of the need to handle their relationships with care, and to avoid accepting excessively frequent or lavish entertainment from them.

Furthermore, business organisations should also establish clear policies on acceptance of advantage and declaration of conflicts of interest, and inform their suppliers or subcontractors of such policies. In the event that staff have violated the law or company policies, prompt action should be taken to report the case immediately.

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False accounting

Ray, the owner of a forwarding company, invited a shipping clerk of a manufacturer, to set up a partnership with him by making false accounting records in order to conceal the marked up shipment cost.
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Cherry was a shipping clerk of Silky Way Ltd (SWL), a manufacturer of silk blouses for export to overseas buyers.  SWL had factories in Hong Kong, Guangzhou and Fuzhou.

Cherry was on good terms with Ray, proprietor of All-The-Way Forwarding Company which handled more than 80%of the shipment for SWL. All-The-Way had been making a handsome profit all along and Ray felt that this was partly due to Cherry who smoothed out whatever hiccups there might be in the freight arrangement.

When Christmas was near, he asked Cherry out for dinner.  Over dessert, Ray presented Cherry with an expensive watch.  Cherry was surprised but pleased.

Ray then went on to talk about his plans for the coming year.  He told Cherry he would like to set up a partnership with Cherry.  Noting that Cherry was in a puzzle, Ray elaborated.

“I always feel that the practice within the freight forwarding business of charging shipments of Chinese products a lower rate unreasonable.  I am going to equalise all charges for all shipments despite the fact that some goods are manufactured in China.  Your boss need not know the change or else he might turn to other forwarding companies. You just help me in handling the documents and you can get your share.  Nobody will raise any queries if you are in charge.  They all trust you.”

When Cherry was too surprised to answer, Ray went on, “It would not be difficult at all to make alterations in the computer database.  With the printouts, you can proceed to work on the invoices and accounts easily.”

Cherry did not know what to say.  It seemed to be a tempting proposal but to do so would be cheating SWL.  While she was hesitating, Ray prodded again.  “You deserve more than what you are getting now at SWL. With all the time and energy that you are putting in at the office, you are grossly underpaid.  You have to look after your own interest too.  SWL is already running a flourishing business.”

Case Analysis

In the above case, Cherry was an employee of the manufacturer i.e. an agent under Section 9 of the Prevention of Bribery Ordinance (POBO), while the manufacturer was her principal. 

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. 

Under Section 9(1) of the Prevention of Bribery Ordinance (POBO), it was an offence for Cherry (an employee), without the approval of her employer, to accept advantages (i.e. the expensive watch and other monetary rewards) for making false accounting records to conceal the marked up shipment cost.   Ray might also violate Section 9(2) of the POBO for offering bribes. 

Furthermore, Cherry might breach Section 9(3) of the POBO by intentionally using false documents to deceive and mislead her principal, i.e. the manufacturer.

Ray and Cherry, who conspired to provide false information to mislead the manufacturer, might also commit offences of false accounting and deception.

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Misuse of an e-mail system

A sales manager of a web design company was moonlighting at a rival company. He diverted the clients’ business e-mails of his company to the secret employer and received commission on every contract he secured for the latter.
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A sales manager of a web design company was moonlighting at a rival company.   To get more business in this competitive sector, the rival company offered the sales manager 6% commission on every contract he secured for them. During his day job at the web design company, the sales manager communicated with clients by e-mails, and it was easy for him to retrieve the clients’ business information that came with the e-mails he received.   He made use of the convenience provided by the system and diverted the e-mails to his secret employer.   He conducted six of these illicit transmissions within four months, and he also dishonestly secured contracts for the rival company by deceiving two clients into believing that his primary employer had an agency agreement with its rival.

Case Analysis

Commission is a kind of advantage under the Prevention of Bribery Ordinance (POBO).  The sales manager might have breached Section 9 of the POBO for accepting the commission as a reward for him to divulge company’s emails or information to the rival company. The offeror of the advantage might also breach the same law.

Management may take system security for granted, but this kind of oversight can prove costly – business may be diverted to competitors and security controls bypassed with just a few keystrokes.

The web design company should have adopted the necessary safeguards to ensure that the digital information was stored safely and under the control of authorised personnel. Proper audit trail should be maintained to detect and deter fraudulent practices.   Professional consultants can also be hired to review and enhance IT security on a regular basis.  Where these are not done, criminals can carry out acts which may not leave any trace, for example by abusing e-mails to commit crimes.

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Offering contract for private gain

Alexander, the Manager of Planning in a real estate development firm, was tempted to offer the firm’s environmental research contract to his friend in return for a “favour”.
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Alexander was Manager of Planning in a real estate development firm and was responsible for recommending a contractor to conduct an environmental study.  He was considering Gamble, a small firm which had done outstanding work for the firm in the past.  Roy, a friend and representative of another larger environmental research firm, approached Alexander on the matter over a lunch appointment.  Alexander clearly stated that Gamble would possibly get the contract because of its satisfactory past performance, whereas Roy’s firm had a dozen other contracts to keep them busy.

Roy seemed disappointed but Alexander was glad when conversation turned to other topics.  Roy asked Alexander about the progress of his emigration plan.  In fact, Alexander’s wife, Zoe, had already gone to Canada with two sons to settle down first while Alexander would work a few more years in Hong Kong before joining them.  Roy mentioned casually that he had connections in Toronto and could help Alexander place his sons into the best local school though it might take some doing.  The school enjoyed a reputation for good results and easy access to the University of Toronto.  Alexander understood what Roy really meant.  He desperately wanted to make a head-start for his children and pave a smooth path for them.

Would Alexander commit any offence if he recommended Roy’s company in return for Roy’s help for his sons? What factors should Alexander consider when making the decision?

Case Analysis

It would be an offence of Section 9 of the Prevention of Bribery Ordinance (POBO) if Alexander, as an employee of the real estate development firm, without the approval from his employer, accepted advantages from Roy (i.e. Roy’s assistance in placing Alexander’s two sons into the best local school in Toronto) as a reward for helping Roy’s firm to get the business contract of environmental study.  Roy would also violate POBO for offering bribes.

Also, Alexander might violate his company’s code of conduct if he did not disclose his relationship with Roy to the management when there was conflict of interest. 

Apart from the aspects of compliance and company code of conduct, Alexander may also consider the following factors when identifying viable alternatives and choosing the best course of action:

  1. Does it correspond with his self-values such as honesty, compassion and responsibility?
  2. 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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Conflict of interest and embezzlement

Timmy, an estate agent, was commissioned by Mrs Chung, a landlord, to sell a residential unit. Under Timmy’s persuasion, Mrs Chung lowered the selling price. After the transaction was completed, Mrs Chung later found out that the buyer had immediately sold the unit.
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Timmy, an estate agent, was commissioned by Mrs Chung, a landlord, to sell a residential unit at $9,000,000. Ms Lam, a client, expressed willingness to buy the unit at $8,780,000 but instead of informing Mrs Chung of the offer, Timmy told Mrs Chung that a client had agreed to buy her unit at $8,580,000 in the name of a limited company. He persuaded Mrs Chung to sell the unit at a reduced price for cash flow reason as there were signs that property prices were going down. Mrs Chung eventually agreed. However, Mrs Chung later found out that, after the transaction was completed, the buyer had immediately sold the unit to Ms Lam at $8,780,000. She reported the case to the ICAC which subsequently revealed that Timmy was one of the shareholders of the limited company which was the buyer.

Case Analysis

As a licensed estate agent, Timmy should observe the Code of Ethics of the Estate Agents Authority. Estate Agents and salespersons, in engaging and accepting an appointment as an agent, should protect and promote the interests of their clients, carry out the instructions 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. Also, they should avoid accepting an appointment involving a property in which they have a beneficial interest. Any pecuniary or other beneficial interests in relation to the property shall be disclosed fully to all parties concerned. 

Timmy’s dishonest behaviour not only caused loss to Mrs Chung and Ms Lam but also tarnished the reputation of the trade. Timmy’s conduct might constitute a criminal offence of fraud under Section 16A of the Theft Ordinance.

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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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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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