The opportunity cost

Frankie, a sneaker store manager, offered to reserve limited-edition sneakers for parallel goods trader Felix in exchange for a rebate.
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The opportunity cost
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Frankie was a manager of a sneaker store for a well-known sports brand.  Recently, the brand released a highly anticipated limited-edition sneaker.  Only 1,000 pairs were produced worldwide, and Frankie’s store was only allocated two pairs per size for customers to purchase.

On launch day, fans and parallel goods traders flooded the store.  Felix, a regular parallel goods trader, informed Frankie that these sneakers could fetch up 8 times their retail price on the secondary market.  Tempted by the potential profit, Frankie began considering how to take advantage of this opportunity.

Despite the store’s policy which prohibited staff from reserving products for customers, Frankie proposed a deal to Felix.  Frankie offered to assist in reserving the limited-edition sneakers for Felix, and in return, Felix had to pay him a 30% cut of the resale profit as a rebate.  Felix gratefully accepted the offer.

Case Analysis

As an employee of the retail store, Frankie should always comply with the internal guidelines on product sale.  By taking this opportunity for personal gain, Frankie not only violated the internal guidelines but also breached the Prevention of Bribery Ordinance (POBO).  Frankie, as an agent, without the permission of the retail store, solicited and accepted rebates from Felix for reserving goods might violate Section 9 of the POBO.  Felix, as the offeror of the bribe, might also be guilty of the offence.

Retail staff should uphold integrity and perform their duties with high ethical standard.  Illegal behaviours ruin one’s career and create unfairness to other customers, ultimately damaging the company’s reputation.

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Good relations with complications

Janice was tasked to set up a consignment corner in a hotel for a travel agency. She called her brother-in-law to enquire whether his travel agency would be interested.
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Good relations with complications
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Given the increasing demand of the hotel guests for local tour services, the hotel’s senior management decided to set up a consignment corner for a travel agency to deal with these requests. Janice, the hotel’s Marketing Manager, was assigned to the task.

It seemed only natural, therefore, for Janice to call Tommy, her brother-in-law, to enquire whether the travel agency he worked for would be interested.

In the midst of a recession, the performance of Tommy’s company had already been discouraging.

Hence, the pressure on Tommy, the Business Development Manager, to find a solution was intensified.  The prospect of winning the consignment corner came as a huge relief to Tommy.  He explained that this would save his career and urged Janice to grant the consignment contract to his travel agency. Believing that Tommy’s agency was as good as any other agencies and no one would discover their relationship, Janice made her decision easily.

A month later, as a token of gratitude, Tommy presented Janice a tour package to Hawaii as her birthday present.

Case Analysis

Considering the close relationship with her brother-in-law, Janice should have observed her company’s internal guidelines on declaration of conflict of interest and refrained from being involved in the granting of contract. Conflict of interest situations such as this, if not dealt with properly, may easily lead to corruption.

Under the Prevention of Bribery Ordinance (POBO), a tour package is an advantage. Janice might breach the POBO if she, without the permission of the hotel, accepted the tour package as a reward for granting the contract to Tommy’s agency.  In that case, Tommy might also breach the POBO for offering of bribe.

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Chaotic sales record

Daisy, who worked at a chain fast-food restaurant, discovered that the assistant manager Diana was manipulating the sales data for personal gain. What should Daisy do?
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Diana, an assistant manager at a chain fast-food restaurant, oversaw daily sales.  She misappropriated sales revenue and discount coupons for an extended period, resulting in chaotic and unclear financial records.

This situation persisted until Daisy, a newly hired cashier, noticed numerous irregularities in the restaurant's sales records.  She suspected Diana was manipulating the sales data for personal gain.  Noticing Daisy’s suspicion and to conceal her misconduct, Diana approached Daisy and promised to give Daisy 10% of the misappropriated funds if Daisy assisted in inputting false sales and coupon redemption records into the cash register system.  Daisy was caught in a dilemma as she knew this was wrong but could not resist the temptation of quick money.  Eventually, under Diana’s persistent persuasion, Daisy succumbed and agreed to help Diana conceal everything.

Although Daisy cooperated with Diana’s fraudulent activities, the chaotic and suspicious sales records eventually drew the attention of the restaurant manager.  Daisy felt uneasy about this situation and struggled with whether to reveal the truth to the manager.

Case Analysis

Employees of restaurants should always exercise prudence and integrity when managing sales records.  If Daisy abuses her position to accept advantages for providing assistance to Diana in concealing the illegal misappropriation of the restaurant sales, she might commit Section 9 of the Prevention of Bribery Ordinance (POBO) and conspiracy to defraud. Diana might also commit the offences.

Employees must uphold a high standard of integrity and refrain from reaping personal gain through corrupt or other illegal means.  When encountering corruption temptation or suspecting any malpractice in the workplace, employees should immediately decline and report the incident to the company and the ICAC.  Deliberately concealing or shielding unlawful behaviour may give rise to suspicions of involvement in illegal activities.  Hence, it is crucial to take a stand against corruption and report it to the ICAC.

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Friendship goes first

Xenia, who worked for a travel agent, tried to help her friend, an airline sales representative, to secure business orders by marking up the air-ticket prices quoted by other airlines.
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Xenia was a staff member of the ticketing department of a travel agent.  Her close friend, Xaviera, worked in the sales department of an airline company.  Knowing that Xaviera was new and facing tremendous pressure to meet sales target, Xenia always encouraged her customers to purchase air tickets from Xaviera’s airline.

One day after Xaviera received a warning letter about her poor sales performance, she felt distressed and sought comfort from Xenia.  While supporting Xaviera, Xenia received a phone call from an insurance company requesting 50 air tickets for a corporate trip to a convention in Europe.   Xenia knew this would be a good opportunity to help Xaviera out of her predicament.  To secure the business, Xenia marked up prices from competing airlines when making quotations to the insurance company, steering the company toward Xaviera’s airline. As a result of the misleading pricing information provided by Xenia, the insurance company chose to book the tickets with Xaviera’s company.

Case Analysis

Although Xenia and Xaviera were good friends, their relationship conflicted with the company’s interest, placing Xenia in a conflict of interest situation.  She prioritised her personal relationship over professional integrity.  By recklessly marking up the prices of other airlines to aid the sales of Xaviera’s tickets, Xenia acted unfairly toward those airlines and jeopardised the credibility of her company.  If the truth was discovered, it may also lead to complaints from the airlines and clients.  Employees should avoid conflict of interest as far as possible and make timely declarations, strictly adhering to internal guidelines.  Otherwise, they may violate the company’s code of conduct or internal guidelines.

Xenia might commit fraud under Section 16A of the Theft Ordinance by overstating the prices offered by other airlines when submitting quotation to the client.  If Xenia, without the permission of her travel agent, abused her position to favour Xaviera while accepting advantages, she might also be liable under the Prevention of Bribery Ordinance.  On the other hand, by deceiving her client with inaccurate information, Xenia breached the trust her company and her client placed on her.  As an employee of the travel agent, Xenia should diligently fulfil her duties and exercise discretion fairly and transparently. 

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Plan falls through

The proprietor of a forwarding company offered advantages to Patrick, a freight manager of an airfreight company, for securing cargo space during peak seasons. However, a strike broke out before Patrick took action.
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Plan falls through
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Patrick, a freight manager of an airfreight company, was responsible for handling freight reservations made by forwarding companies. He became closely acquainted with Paul, the proprietor of a forwarding company.  Paul often treated Patrick to dinners at luxurious restaurants and they sometimes spent weekends playing golf together.  Because of their close relationship, Paul was confident he could always rely on Patrick for sufficient cargo space.

About a month before the Easter holiday, Paul invited Patrick to a golf trip and covered all the expenses to win him over.  During the trip, Paul casually mentioned that he had received many forwarding orders to transport goods to Europe and expected Patrick’s “usual support” regarding allocation of cargo space.  He also hinted that he would not take Patrick’s assistance for granted and would reciprocate with a 5% rebate on the freight charges.

However, shortly after the golf trip, a labour strike occurred at several airports in Europe, and Patrick’s boss took charge of the company’s contingency plan for cargo allocation.  As a result, Patrick was unable to assist Paul.

Case Analysis

Rebates are considered advantages under the Prevention of Bribery Ordinance (POBO).  Patrick might breach Section 9 of the POBO since he accepted advantages from Paul, i.e. free golf trip and the 5% rebate of the freight charges, without obtaining permission from his principal, i.e. the airfreight company, as an inducement for reserving extra cargo space for Paul.  Paul might also breach the POBO as the offeror of the bribe.

Even though Patrick could not allocate the cargo space to Paul, the corruption offence was still pursuable under the law.  According to Section 11 of the POBO, once an agreement to offer and accept a bribe is reached, both the offeror and acceptor of the bribe shall commit an offence even if the acceptor claims that he did not actually carry out the act as agreed.

Although “entertainment” is not an “advantage” under the POBO, it can be a “sweetener” in a corrupt dealing.  Therefore, Patrick should adhere to the company’s code of conduct regarding the acceptance of entertainment from business clients.  He should also decline invitations to meals or entertainment that are excessive in nature or frequency while conducting official duties to avoid any conflict of interest.

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Customary trade practice not a defence

Bill, a regional manager of a medical equipment company, treated the supplier’s representatives with lavish entertainment and a Macao trip. To show his hospitality, he also offered them casino chips and red packets.
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Customary trade practice not a defence
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Bill was the regional manager of South East Asia in a European medical equipment manufacturer. He learnt that a medical equipment supplier in Chinese Mainland was planning to set up a company in Hong Kong to conduct bilateral business by purchasing European products through the suppliers in Hong Kong and selling wheelchairs and medical equipment made in China to South East Asia.

Bill invited the supplier to Hong Kong to have a look at the latest European medical facilities and the equipment used in hospitals in Hong Kong, as well as to get familiar with the local business environment.

Upon their arrival in Hong Kong, Bill only spent half a day visiting the hospitals with the two supplier representatives, but spent a whole week treating them to lavish meals and red wine at five star hotels and restaurants. Bill also arranged a tour to Macao, including a visit to a newly opened casino. Bill gave each of them HK$10,000 worth of casino tokens to "try their luck", claiming that it was a "trade practice" to show his hospitality to their clients. He also implied that he would offer them a handsome "red packet" if they purchase the medical equipment from his company.

Case Analysis

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.

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Common trade practice is not a defence

Andrew was the chief accountant of a large trading company. He discovered a number of fraudulent and corrupt activities involving senior sales representatives and their mainland clients and such activities were condoned by the senior management.
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Andrew was the chief accountant of a large trading company.  Due to keen competition, the business of the company deteriorated substantially.  To improve the situation, the company attempted to invest in the Mainland.

When reviewing the books and bank statements, Andrew found that there was evidence of fraudulent activities involving some sales representatives. Andrew discovered that there were no supporting documents for some cash payments claimed by the sales representatives.  When asked for explanations, the sales representatives replied that those expenses had been incurred for the purpose of building up new businesses in the Mainland.  They further explained that the offering of commission to agents of business clients was a common practice.  When consulting the Marketing Director who was a long serving staff of the company, Andrew was told that the expenses were approved by  the Marketing Director personally. 

With no choice, Andrew went to see the Vice-president.  The Vice-president pacified Andrew and told him that in real business life, the company had to tolerate some minor variations in order to get the job done.

Next day, a cheque was placed on Andrew’s desk and the phone rang.  It was the Marketing Director.  Andrew was asked to sign the cheque and was told that it would be deposited in a designated Hong Kong bank account belonging to a buyer of a firm in the Mainland.  The arrangement enabled the buyer to pay for his various expenses while on business in Hong Kong.  He further suggested that the sum could be paid by an overseas subsidiary of the company.

Although Andrew knew that the client was very important to the company, he suspected that the payment might be unlawful.

What should Andrew do?

Case Analysis

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.

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Neglecting risk factors

William is a fund manager. Although his clients have clearly specified a low risk mandate, William still invests a large proportion of the funds of his discretionary clients in emerging Asian countries, ignoring any warning signs of an economic downturn within the region.
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Neglecting risk factors
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William is a fund manager who manages a number of Asian unit trusts comprising of low stake portfolios.   Given the keen competition with his fellow fund managers in the company, he sets out to make the unit trusts in his care the star performing funds within a short period of time.

Although his clients have clearly specified a low risk mandate, William still invests a large proportion of the funds of his discretionary clients in emerging Asian countries, ignoring any warning signs of an economic downturn within the region.   He even explains to the trustees of the unit trusts that the financial hiccup in some of the countries will soon be over.   However, the financial turmoil quickly spreads across Asia causing the collapse of several stock markets.   The unit trusts under William’s management suffer a tremendous loss.

Case Analysis

William manages the portfolios of his clients without due consideration of their risk profiles.   He violates the *Codes of Conduct by ignoring the objectives of his clients’ portfolios and placing their  interests at stake.   He fails in his fiduciary duty towards his clients.

*Remarks: Codes of Conduct refer to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission, the Code of Conduct for Corporate Finance Adviser and the Fund Manager Code of Conduct.

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Exercising duty without care and diligence

Doris, an account manager of a brokerage company, has not exercised her duties with due care, causing her client Kelvin suffered a great financial loss.
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Doris  is  an  account  manager  of  a  brokerage  company.    One  day,  a white-collar worker named Kelvin steps into her company with a request to open an account to deal in securities.   He tells Doris that, as he plans to study abroad next year, he wants his savings of one hundred thousand dollars to have a good return so that he can have enough money to reach his goal early.   He asks Doris in what products he should invest.  Doris persuades Kelvin to open a margin account to buy second-line stocks.   However, Doris doesn’t try to explain to Kelvin the difference between margin accounts and cash accounts, nor the risks involved in the former.

Hearing that the Hang Seng Index is dropping rapidly soon after the opening of the stock market, Kelvin calls Doris and places the order to immediately sell all the shares in his account.   Because Doris also receives many other "sell" orders from her large clients that morning, she sets aside Kelvin’s order and busily handles their transactions.   When Doris has time to eventually execute Kelvin’s order, Kelvin has already suffered a great financial loss.

Case Analysis

Doris breaches the *Codes of Conduct because she hasn’t exercised her duties with due care and diligence and fails to protect the interest of her client, Kelvin.   Evidently Doris has not performed her function properly.   She is obliged to ensure that her client understands the nature and risk of a margin account at the very beginning, and execute Kelvin’s order promptly upon receiving his instruction.

*Remarks: Codes of Conduct refer to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission, the Code of Conduct for Corporate Finance Adviser and the Fund Manager Code of Conduct.

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Providing investment advice without thorough research and required registration

Donald, an account manager of a brokerage company, provides investment advice on futures options to clients and accepts clients’ orders without being licensed.
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Donald is an account manager of a brokerage company and has been licensed by the Securities and Futures Commission (SFC) to deal in securities. Since his company is keen to develop the futures brokerage business and needs more manpower to handle client orders, Donald is instructed by his supervisor to apply for the related license.  In fact, his company never considers whether Donald possesses the required qualifications and experience to be so licensed.

One day, a regular customer, Gordon, seeks Donald’s advice on index options.   Although Donald has yet to obtain the license, he is confident of providing advice to Gordon because, in preparing for the license application, he obtains plenty of reference material from his colleagues in the futures brokerage division.   He even accepts the order from Gordon to buy in index options contracts.

Case Analysis

Donald neither conducts the research himself nor considers his investment advice for Gordon in the light of his client’s objectives.   He has contravened the *Codes of Conduct and also the Securities and Futures Ordinance because he provides investment advice on futures options to clients and accepts clients’ orders without being licensed.   His reckless act can also cause damage to his company, which may be punished by the regulatory authorities since the company is responsible for the conduct of its employees.   Moreover, the company violates the Codes of Conduct because it fails to ensure that Donald has the appropriate qualifications and experience to perform the new function.

*Remarks: Codes of Conduct refer to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission, the Code of Conduct for Corporate Finance Adviser and the Fund Manager Code of Conduct.

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