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Corruption


Article exclusively contributed
by the ICAC

A gift or a bribe?


Jonathan had worked in the design and production field since graduation. After years of hard work, he managed to set up his own company.

One of his company's first jobs was the production of souvenirs for a government department wishing to promote its services during an exhibition. Unfortunately, due to some unforeseen circumstances, the quality of the souvenirs produced was far from satisfactory. Gina, the government officer overseeing the souvenir production, found the products unacceptable and returned the whole lot for reproduction.

Jonathan figured his company would not be able to bear the extra cost of reproducing all the souvenirs. In face of the pressing deadline, he offered a designer watch to Gina as a belated birthday gift in the hope that she would not reject the products. Jonathan also told Gina that since the souvenirs were to be distributed to members of the public free of charge, people would not have high expectations anyway. Gina finally agreed to the deal.

Had Jonathan and Gina contravened the anti-bribery legislation in Hong Kong in this case?

* Yes, both Jonathan and Gina had breached Section 4 of the Prevention of Bribery Ordinance (PBO).

* All government officers in Hong Kong are "public servants". Under Section 4 of the PBO, any person who, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement to or reward for or otherwise on account of any act in relation to the latter's official duties will breach the law. The public servant who accepts the advantage will also contravene the ordinance. The maximum penalty for breaching Section 4 is 7 years' imprisonment and a fine of $500,000.

* In the above case, Jonathan offered the watch to Gina so that she would turn a blind eye to the substandard quality of the souvenirs. Despite Jonathan's claim that the watch was given to Gina as a "birthday gift", his motive of offering the gift was clearly related to her official duty. He and Gina had thus breached Section 4 of the PBO for offering and accepting an advantage.

Advice from ICAC:
The best practice is not to offer any advantage to a public servant

As already mentioned, the offering of an advantage to a public servant in relation to the latter's official duties may contravene Section 4 of the PBO. In addition, members of the public should also note that the offering of any advantage to any public servant without lawful authority or reasonable excuse while having any dealings with that public servant's department or organisation is also an offence under Section 8 of the PBO. Therefore, the best practice for those having official dealings with public servants is not to offer any advantage to the latter.

For enquiries about this article, the PBO or any other ICAC services such as the provision of corruption prevention training, please call the ICAC Enquiry Hotline at 2756-3300.

To report corruption, call the ICAC 24-hour Hotline at 2526 6366.

To report corruption, call the ICAC 24-hour Hotline at 2526 6366.

To report corruption, call the ICAC 24-hour Hotline at 2526 6366.

To report corruption, call the ICAC 24-hour Hotline at 2526 6366.

To report corruption, call the ICAC 24-hour Hotline at 2526 6366.

Q&A about the Prevention of Bribery Ordinance (PBO)
Q1 I am employed by a public body and my colleagues told me that I am also a "public servant". Does that mean I have to comply with PBO provisions governing public servants too ?
A1 Yes, in addition to government officers, public body employees are also "public servants" and should comply with PBO provisions governing public servants including Section 4. There are about 100 public bodies as scheduled by law, including public utility companies, hospitals under the Hospital Authority, universities, institutions performing public regulatory and service functions, etc.

Q2 Will it be an offence to send gift hampers to public servants during festive occasions?
A2 If the offering and acceptance of an advantage are in relation to the recipient's official duties, both parties will have breached Section 4 of the PBO. Gift hampers are gifts and a gift is defined as "an advantage" under the PBO. It is not a defence to show that the advantage is customary in any profession or trade.
Q3 How about the presentation of souvenirs, e.g. plaques to public servants during ceremonial occasions at which they are invited to attend in their official capacity?

Q3 How about the presentation of souvenirs, e.g. plaques to public servants during ceremonial occasions at which they are invited to attend in their official capacity?
A3 For government officers, any gifts (including souvenirs) presented to them in their official capacity on any occasion are regarded as gifts to the department of the officer. The officer is merely accepting such gifts on behalf of his department at the occasion and should report and hand over the gifts to his department for disposal as soon as possible. Similarly, public body employees should refer to the guidelines stated by the respective public bodies and follow the proper procedures accordingly. If in doubt, they should seek clarification from the department/organisation.

Q4 Can the PBO govern the offering of an advantage to a public servant while outside Hong Kong?
A4 Yes, it would still be a corruption offence under the PBO even if an advantage which is in relation to the public servant's official duties is offered to or accepted by a public servant while outside Hong Kong.

   
 
Source : ICAC


Taken from Career Times 19 July 2002

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor.

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