Principal's permission should be definite and given in advance

Ivan was a shareholder of a manufacturing company in charge of procurement. A supplier offered him commissions as a reward for placing orders. Ivan did not obtain proper permission from the company for accepting the commissions.
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Ivan had been in the toy business for many years. Some years ago he became a shareholder of a Shanghai-Hong Kong joint venture. Because of Ivan's substantial experience in the toy trade, he took charge of the production line, and divided much of his time between Hong Kong and Shanghai.

Ivan often made all the procurement and purchasing decisions, and was often offered with entertainment and gifts by many suppliers. One of these suppliers even went so far to offer Ivan a commission of five per cent of the value of each contract, as a reward for Ivan’s placing orders for industrial chemicals with their company.  Ivan had received a total of HK$250,000 illegal rebates or commissions over an eight-month period. 

The case was brought to the attention of the ICAC, who found that some of the shareholders were not aware of Ivan's acceptance of advantages from this supplier, and that the company did not have in place a clear policy on this issue. Some shareholders claimed they had given Ivan permission to accept commissions to subsidise his social expenses in Shanghai and Hong Kong, but they were not able to state when the permission was granted, let alone the approved amount or the circumstances under which the acceptance was permitted.

Case Analysis

Under Section 9 of the Prevention of Bribery Ordinance (POBO), the principal's permission (in this case, the toy company) has to be given before an agent (Ivan) solicits or accepts an advantage; otherwise the agent has to apply for permission as soon as reasonably possible after the acceptance. In addition, for such permission to be lawful, the principal needs to carefully consider the details of the application before granting permission.

Ivan's company had not stated clearly in advance whether or not its staff members could accept advantages in relation to their official duties. In other words, Ivan did not have the company's permission when he accepted the commission. Furthermore, since he had not applied for retrospective permission from his company afterwards, and his acceptance of the commission was not known to and approved by all shareholders, such acceptance was considered without the principal’s permission.  

Some of the company shareholders recklessly claimed that they had given permission for Ivan to accept commission. However, they had not specified the details and scope of acceptance, and there was no record of the accepted rebates. They also did not take into account the fact that such a policy would affect fairness of competition among their suppliers. This was against both the spirit and requirements of Section 9 of the POBO, so the defence of "permission of the principal" was not substantiated.

As such, companies should proactively formulate rules and regulations to govern the acceptance of advantages by staff at all levels. They should also state clearly in writing the company policy on the nature and maximum amount of advantages staff are permitted to accept, conditions of such acceptance, declaration procedures and enquiry channels, etc. for staff compliance.

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Unauthorized loan from contractors

A project engineer is employed by a chemical product manufacturer to supervise the engineering works performed by its contractors. Due to his job nature, he develops a close companionship with a contractor who has recently undertaken a gas tank repair project of the company.
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A project engineer is employed by a chemical product manufacturer to supervise the engineering works performed by its contractors.   Due to his job nature, he develops a close companionship with a contractor who has recently undertaken a gas tank repair project of the company.

Learning that the project engineer suffers from substantial loss in a recent stock investment, the contractor immediately offers to lend the project engineer $200,000 to help him overcome the financial difficulty.

When time comes for an inspection to be conducted for the gas tank repairing works, the contractor requests the project engineer to turn a blind eye to certain defects found in the finished works, saying that the defects can have little chance to pose a safety hazard.   He also reminds the project engineer of his generosity to him in the past.   The project engineer finds it difficult to require the contractor to rectify all the defects found in the works.

Case Analysis

Besides breaching the Rules of Conduct of the Hong Kong Institution of Engineers, the project engineer may put his employer's interest and public safety at stake if he compromises his objectivity in professional judgment and turns a blind eye to substandard works.

The project engineer should not accept a loan from persons who have business dealings with the company, placing him into a position of obligation that may lead to a conflict of interest.

The project engineer and the contractor may be liable to the charge of a corruption offence under the Prevention of Bribery Ordinance (POBO) for offering and accepting a loan, an advantage under the POBO, in relation to the duties of the recipient's company without his employer's permission.

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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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Deceiving the company by subcontracting a job from a contractor

A software engineer recommended his company to award a software design job to an outside contractor, who then sub-contracted the job back to him.
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When receiving his company's instruction to design a computer software for a digital answering machine, a company's software engineer claimed that he was too busy to take up the job and recommended it to be contracted out to an outside software house which was owned solely by his former colleague.

The software house owner at first had no intention to undertake the job.  But the software engineer persuaded him to secure the job first and then sub-contract it back to the software engineer.  Using the software house as a disguise to deceive his own company, the software engineer could pocket $95,000 being 90% of the project fee while the rest would go to the owner.

Case Analysis

The software engineer contravened the Rules of Conduct of the Hong Kong Institution of Engineers, which require an engineer to offer complete loyalty to his employer and avoid engaging in business, investments or activities which conflict with the interests of his employer.

An employment or contract could be considered as an advantage.  As the software engineer's company neither approved the engineer to take up part-time job nor allowed him to accept any advantage in relation to his duties, the engineer had violated Section 9 of the Prevention of Bribery Ordinance for assisting the software house to get the job and accepting the project fee in return.

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Bribery still exists even if the purpose of the bribe has not been achieved

Susanna was appointed by her company to chair the selection committee for procuring IT equipment. She accepted the bribes from a computer supplier though she knew she could not influence the committee’s decision.
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An international company intended to set up its South East Asian headquarters in Hong Kong.  A committee was appointed, chaired by the company's vice president, Susanna, to select the supplier of IT equipment and computer software for the new office.

One of Susanna's old school friends, who worked for a computer supplier, learnt of the possible contract and approached Susanna.  In an attempt to influence Susanna's decision over the contract for the IT equipment and software, he gave her an expensive watch as a gift. Though fully aware of her classmate's intention  and  clearly  knowing  that  she  did  not  have  the  power  to  affect  the decision  of  the  committee,  Susanna  still  succumbed  to  the  temptation  and accepted the gift. In a further attempt to influence her decision, her school friend paid Susanna a visit at home and deliberately left behind a new notebook computer, saying it was for her trial use during overseas business trips.

After prudent consideration, the committee finally decided to award the equipment and software contract to another company.  Susanna's old school friend was upset at the outcome but could do nothing about it. Later, some of Susanna's colleagues learnt of the watch and notebook computer, which gave rise to much gossip in her company. The incident eventually drew the attention of senior management and was reported to the ICAC for investigation.

Case Analysis

Susanna's old school friend clearly tried to sweeten her with gifts. He was the offeror and Susanna was the recipient. Even though Susanna subsequently did not place orders with his company, both of them already breached the Prevention of Bribery Ordinance (POBO).

Under Section 11 of the POBO, if it is proved that the offeror believes that the advantage given is an inducement or a reward of favours , the recipient of the bribe cannot use the defence that: (a) "he did not actually have the power to do so", (b) "he accepted the advantage without intending to do so" or (c) "he did not in fact do so". It is important to note that accepting any gift or sweetener is an offence under law, even if the final outcome or intent of the gift is not achieved.

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Conflict of interest

Jonathan was a computer programmer in Galaxy Electronics. The job assigned to Jonathan was contracted out to an outside software house whose proprietor was his friend. His friend asked Jonathan to take up the job in his own spare time…
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Jonathan was a very task-oriented young computer programmer employed by the Galaxy Electronics Ltd for two years.

One day, his supervisor asked him to design a programme for a digital answering machine.   Jonathan turned it down and explained that he was extremely busy at that time.  The job was then contracted out to an outside software house named Leo Systems Company.

It so happened that Leo, the proprietor of Leo Systems, was an old friend of Jonathan.  He rang Jonathan and told him of the job offer.  Actually, Leo and his staff had their hands full at that time but would not like to turn down Galaxy when they made the offer.  What Leo wanted was to maintain a good relationship with Galaxy all through so that in future when their jobs again had to be contracted out, they would come to Leo Systems again.

Leo asked if Jonathan would consider lending a hand in designing the programme in his own spare time.  The contract money could be split, with Jonathan taking a share for the part that he did and Leo taking the share his men worked on.

Jonathan thought hard.  He could certainly sacrifice a few nights' sleep to get a part of the programme written up.  He knew what the requirements were.

Should he say ‘yes’ to Leo?  He would be earning extra money at the expenses of his boss.  Would this weigh heavily on his conscience? Or was it a stone that could be lifted easily?

Case Analysis

Jonathan was facing a situation of conflict of interest as well as an ethical dilemma that might put his personal values such as loyalty and honesty to challenge. On one hand, his assistance to Leo could help Leo’s company maintain a good business relationship with Galaxy; on the other hand,  his taking up of the moonlighting job from Leo at the expense of his boss might create a conflict of interest.  In handling the situation, Jonathan 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 himself:

  1. Does his decision violate professional, industry specific, or company code of conduct?
  2. Is his decision against the law?
  3. Does it correspond with his self-values such as loyalty, honesty?
  4. Can he disclose the 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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Accepting advantage from contractor

Man, an IT manager, was responsible for sourcing a LAN system for his engineering company. A technical sales manager tried to seal the deal by offering Man a set of expensive computer equipment for his personal use.
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Man, an IT manager, was responsible for sourcing a LAN system to be set up in his large engineering company.  He started to contact various contractors and one of them was a medium sized computer firm called ABC whose technical sales manager Gordon was a personable young man.

Gordon tried to persuade Man to use his suggested LAN system by quoting a price at $500,000 and claiming it the best bargain in the market.  Indeed, Gordon had his eyes set on the cost of after-sales service and maintenance which was actually quite profitable.  Man hesitated and said that he needed to seek his supervisor’s approval first as well as to seek a few more other quotations for comparison.  In order to secure the deal, Gordon made a suggestion that he would offer Man a set of free computer equipment of the latest model for his personal use if Man assisted Gordon in getting the contract. 

What should Man do? Should Man accept Gordon’s attractive offer?  Would he commit any offence by doing so?

Case Analysis

Under Section 9(1) of the Prevention of Bribery Ordinance (POBO), it would be an offence if Man (an employee), without the approval of his employer, accepted advantage from Gordon for assisting him in getting the business contract. 

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. The set of free computer equipment offered by Gordon to Man can be regarded as advantage.

Gordon might also violate Section 9(2) of the POBO for offering bribes to Man for the same purpose.

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Tipping off about the sack

The boss wanted to replace Anthony who was Edmond’s friend and colleague. Edmond wanted to tell Anthony the news in advance so that Anthony could get himself prepared.
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Edmond introduced his friend Anthony to work under his wing in a small I.T. company.  Felix, the company boss, had complained to Edmond for several months about Anthony’s work performance.  Anthony’s procrastination and being unnecessarily thorough was well-known in the company.  Felix just managed to tolerate the situation because he did not want to upset Edmond who brought large profits to the company.  Felix also told Edmond in confidence that Anthony was not the person whom the company needed and could be replaced by someone who was more efficient and yet cheaper.

As a friend, Edmond wondered if he should personally warn Anthony in advance so that Anthony could get prepared.  If Felix was right, terminating Anthony might be for the best interest of the company as well as for Edmond to maintain a good relationship with Felix.  On the other hand, leaking out the news in advance might also damage Felix’s trust and affect staff morale.

To tell Anthony or not to tell Anthony? That was the question worrying Edmond!

Case Analysis

Edmond was facing an ethical dilemma that might put his personal values such as honesty, responsibility and compassion to challenge. In handling the situation, Edmond 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 honesty, responsibility and compassion?
  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 this ethical.

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A long shot: facing temptation

Customer Services Officer Tony and part-time phone salesman Curtis worked in the same team in a telephone company. Knowing that Tony was keen at golfing, Curtis offered to fix a golf club membership for Tony if Tony released clients’ personal information…
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Tony was a Customer Services Officer of a telephone company.  He tried his best in whatever he was assigned to do.  Very soon, he made a name for himself as a hardworking and responsible young officer.  Soon he got to know a lot of people working in his section.  One of them was Curtis.

Curtis was a part-time phone salesman working with Tony in the same team.  He had contacts everywhere and could gain entry to many exclusive clubs.  He treated Tony to dinners in the evenings, and sometimes even golf trips across the border on Sundays.

Tony picked up golf eagerly. He loved the greens and enjoyed the leisurely pace of the sport.  What was more was the pride of being among the well-to-dos in town.  He wished he had his own golf-membership but he knew it was almost impossible, given his present income and connections.

Curtis could guess what was on Tony's mind and told him, “If you release the personal information of your clients to me, I can fix a membership for you.  You have easy access to the computer records and this should not be a problem.”

Tony knew very well that Curtis would misuse these clients’ personal information for illegal gains.  He did not wish to be part of any scam.  But he could not resist the temptation of the golf membership. It would be decades before he could secure one on his own merits and earnings.  Perhaps it would not be difficult to find another colleague who also had access to the data to be the scapegoat.  Dinner and entertainment by Curtis also flashed across his mind.  Tony began to waver.  Should he say ‘yes’ to Curtis?

Case Analysis

Under Section 9(1) of the Prevention of Bribery Ordinance, it would be an offence if Tony (an employee), without the approval of his employer (the telephone company), accepted an advantage from Curtis for leaking out clients’ personal data. 

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.  Therefore, a golf club membership offered by Curtis can be regarded as an advantage.

Curtis might also violate Section 9(2) of POBO for offering bribes for the same purpose.

Furthermore, Tony and his company might breach the Personal Data (Privacy) Ordinance for disclosure of personal data of his clients with an intent to obtain gain or cause loss to the company’s clients or failed to protect the personal data of their clients.

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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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