Offering Advantages in Relation to Funding Application

Tony, an operations manager of a technology consultancy firm, actively promoted his firm’s services to SMEs, offering to manage the entire application process for government technology funding schemes which support SMEs in adopting digital solutions.  He assured his clients that the application would be “hassle‑free” and that his company would arrange the required documentation including vendor quotations for digital solutions.

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Tony, an operations manager of a technology consultancy firm, actively promoted his firm’s services to SMEs, offering to manage the entire application process for government technology funding schemes which support SMEs in adopting digital solutions.  He assured his clients that the application would be “hassle‑free” and that his company would arrange the required documentation including vendor quotations for digital solutions.

Behind the scenes, Tony colluded with several vendors to submit inflated quotations for digital solutions, such as cloud systems, cybersecurity upgrades and e‑commerce platforms.  Although the funding application guidelines required SMEs to contribute a specified proportion of project costs, Tony secretly arranged for the SMEs’ contribution to be temporarily financed or rebated after approval, thereby creating the false impression of genuine cost‑sharing by the applicants.

To facilitate approval, Tony offered a bribe to a government official responsible for processing applications under the scheme and requested that the vetting process be expedited.  The government official refused the offer and immediately reported the matter to ICAC.

Case Analysis

Case Analysis

Tony may have committed fraud by submitting false quotations to inflate the costs of digital solutions and falsely representing that the applicants had borne the required portion of project costs under the scheme.  Even if the applications were submitted by Tony on behalf of his clients, the SME clients may also incur criminal liability if they knowingly allowed the use of false quotations and supporting documents with the intent of securing approval of the subsidies.

On the other hand, Tony’s attempt to bribe a government official responsible for processing the applications may constitute an offence under Section 4 of the Prevention of Bribery Ordinance.  Section 4 prohibits any person from offering an advantage to a public servant as an inducement to or reward for that public servant’s performing or abstaining from performing any act in his or her official capacity.

To prevent, detect and deter similar malpractices, grantors and applicants of funding schemes are advised to adopt adequate corruption prevention measures in their operations.

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"Integrity - Our Winning Edge" Corruption Prevention Tips for Hotel Industry

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[EN] "Integrity - Our Winning Edge" Corruption Prevention Tips for Hotel Industry https://hkbedc.icac.hk/Upload/guides/115/pdf/368489a41ec24dffb2fde9f6bbcc57df.pdf Image link: https://hkbedc.icac.hk/cache/img/e771246a69bc1800215eda15f15800a1.png [ZH-HANT] 「誠信旅業 致勝之道」酒店業防貪貼士 https://hkbedc.icac.hk/Upload/guides/115/pdf/fdca89ba49d64a1c944f0b894d8693d2.pdf Image link: https://hkbedc.icac.hk/cache/img/92cdd895187dd3f6978bd0e07404900c.png [ZH-HANS] 「诚信旅业 致胜之道」酒店业防贪贴士 https://hkbedc.icac.hk/Upload/guides/115/pdf/fdca89ba49d64a1c944f0b894d8693d2.pdf Image link: https://hkbedc.icac.hk/cache/img/92cdd895187dd3f6978bd0e07404900c.png

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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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Corruption and Misconduct in Procurement

An assistant manager of a company accepted computer equipment from a sales manager of a computer hardware supplier for placing purchase orders with the latter.
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An assistant service manager of a company accepted several pieces of computer equipment from a sales manager of a computer hardware supplier, including a scanner, a printer, a projector and a CD writer valued a total of HK$110,000, as a reward for placing purchase orders with the supplier. The company did have procurement guidelines that stipulated the minimum number of quotations required for every purchase. However, the assistant service manager colluded with the supplier to produce false quotations to deceive his employer. The assistant service manager also falsified some documents to get his employer to pay for a hard disk, a monitor and a central processing unit, all of which he took home for his own personal use.

Case Analysis

Both the sales manager who offered advantages to secure business and the greedy assistant service manager had committed a bribery offence under the Prevention of Bribery Ordinance.

The procurement field has always been vulnerable to the risk of corruption, especially on high value goods and services such as information system and IT equipment that require frequent updating.  When a chain of purchases of IT equipment is initiatedor consulting services are outsourced, the situation is rife with opportunities for illicit deals if the procurement process is not properly administered. Furthermore, the fact that the assistant service manager was able to take home some IT equipment revealed that the company’s asset control was a complete failure.

Management usually rely on the expertise in their workforce to perform procurement duties. But that must not excuse, deter or prevent them from instigating the necessary checks and balances to minimise the danger of corruption and malpractice. For examples, managers should lay down procedures and safeguards to prevent tampering or leakage of quotations or tenders during the procurement process. Tender evaluation panel involving professionals can be formed to evaluate the bids of high value or special purchases and make recommendations for senior management to consider. Proper records of quotations/tenders as well as products/services delivered should be kept for checking and future audits. Separating procurement duties from storekeeping duties and conducting inventory check are also helpful to minimize risks of company’s assets being misappropriated.

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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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Falsifying documents to mislead the principal constitutes an offence under the POBO

Tim was the director of a Hong Kong company and was stationed in its Mainland factory. He instructed a transportation company operator to inflate the service fees statement and used the falsified documents to mislead the principal.
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Tim was the director of a Hong Kong company and was stationed in its Mainland factory. In the process of awarding a freight contract to a cross–boundary transportation company for goods to be transported to Hong Kong, he claimed he was the factory owner. Tim also falsely claimed that he needed to inflate the transportation cost to offset certain monthly miscellaneous expenses, which were not chargeable to the company's account. He instructed the transportation company operator to inflate the transportation fees on the monthly statement by HK$20,000. He then submitted the statement to his company for issuing of payment to the transportation company via the personal bank account of the factory accountant.   Tim had subsequently pocketed HK$180,000 through the bank account of the accountant for nine months.

The transportation company operator later discovered that Tim was only a paid director and not the actual factory owner.

Case Analysis

In accordance with the Prevention of Bribery Ordinance (POBO), the term "agent" includes individual directors of a company.  In the above case, Tim as a director was an agent of his company.  He breached Section 9(3) of the POBO by intentionally using false documents to deceive and mislead his principal, i.e. the company.

Tim, who provided false information to mislead the transportation company operator, might also commit offences of false accounting and deception.

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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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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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