Common Corruption Risks and Malpractices - ICAC Past Cases
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.
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.
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.
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.
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?
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:
The ETHICS PLUS ethical decision making model might be helpful for him in solving the dilemma.
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.
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.
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.”
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.
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.
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.
Ronald worked in an estate agency. His employer trusted him and provided him with training; yet Ronald felt he could have done better. Ronald planned to marry his girlfriend in a year’s time. To prepare for the costly wedding, he applied for a huge loan from a finance company, putting himself in a position where he had to work very hard to repay the debt. After successfully renting out Ms Yeung’s flat at $30,000 per month, Ronald asked Ms Yeung to deposit the $15,000 commission into the bank account of a consultancy firm which was set up by himself. Ronald also lied about the consultancy firm being a subsidiary of the estate agency which he worked for. To conceal the whereabouts of the commission, Ronald submitted a false report to his employer stating that Ms Yeung’s tenancy transaction had been facilitated by a consultancy firm and Ms Yeung would only be willing to pay commission to the consultancy firm. Ronald’s employer was suspicious about these arrangements and checked the consultancy firm’s details. Ronald’s dishonest act was revealed and a report was made to the ICAC.
Ronald had become entangled in debt and deliberately used his own consultancy firm to embezzle commission due to his employer. Under Section 9(3) of the Prevention of Bribery Ordinance (POBO), it is an offence for any agent to use false/ erroneous/ defective receipt/ account/ other document with the intent to deceive his principal. Ronald wilfully used a false document with intent to mislead the estate agency about Ms Yeung’s transaction. He might violate Section 9(3) of the POBO.
Ronald was disloyal to his employer. He defied the law out of greed and ruined his own future.
As a licensed estate agent, Ronald might also breach the Code of Ethics of the Estate Agents Authority which states that estate agents and salespersons shall refrain from activities during their practice which may infringe the law.
Vincent, an estate agent of an agency, facilitated the sale of Mr Leung’s flat to Mrs Pong at a price of $34 million. In line with regular practice, both buyer and seller had to pay 1% of the purchase price as commission to the agency. After the transaction was completed, Vincent showed an agreement and a fax to Mr Leung and Mrs Pong. The agreement indicated that the transaction had been carried out through two estate agencies, Vincent’s agency and Agency B. The fax was issued by Vincent’s agency and indicated that Agency B would collect the commission on its behalf. As the agreement and fax bore the signatures of the persons responsible in both estate agencies as well as company chops, Mr Leung and Mrs Pong paid the commission accordingly. In fact, Vincent had forged the agreement and fax document with a view to embezzling his employer’s commission using Agency B’s account. Agency B was later to return 80% of the commission it received to Vincent. Meanwhile, Vincent told his employer that another estate agency had beaten him to the transaction. Vincent’s agency made a report to the ICAC after suspecting that Vincent had been bribed to refer business to another estate agency.
Vincent felt that, as he alone had facilitated the transaction, he alone should enjoy the commission. However, he had forgotten that, as long as he was an employee of his agency, he had a responsibility to protect his employer’s interests, one he should not ignore in light of personal interests.
Vincent might commit an offence of fraud under Section 16A of the Theft Ordinance for conspiring with another estate agency to embezzle commission for personal gain. He not only seriously harmed his employer’s interests, but also betrayed his company’s trust in him.
Vincent facilitated the transaction between Mr Leung and Mrs Pong as an employee of his agency. If Vincent had an intent during the commission-swindling process to use false documents to mislead his employer or conceal the transaction, he might have breached Section 9(3) of the Prevention of Bribery Ordinance and would be liable for a maximum penalty of 7 years’ imprisonment and a fine of $500,000.
Vincent 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.
Ivy was a sales manager of a sportswear distributor. The company had a discount policy for bulk purchase of sportswear that every 100 sports jerseys sold would enjoy a discount of 10%. The soccer jersey of the latest winning team was selling like hot cakes. A small sportswear shop in Mongkok placed an order for 50 of this jersey and another shop in the area also ordered another 50. Since they were in the same district, the delivery would be made together. A thought struck Ivy. Why didn’t she combine the two orders and make out an order for 100? She could doctor the invoices up. The discount would be a source of her extra income. And it would not harm anyone.
But would it be considered as cheating the company? Should she split the gains into three and share with the two sportswear shops?
Under the Section 9(3) of the Prevention of Bribery Ordinance, it is an offence for any agent, with intent to deceive the principal, to use any false, erroneous or defective receipt, account or other document in respect of which the principal is interested.
Ivy might breach Section 9(3) of the Prevention of Bribery Ordinance for using false documents with the intent to deceive her company. She might also commit an offence of deception, contrary to Section 17 of the Theft Ordinance.
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