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Case Studies
Exercising discretion to approve claims
Alex was a senior engineer of a consultancy firm. Part of his duties was to approve various applications of claims from contractors and subcontractors. Alex was in a good relationship with a contractor Bernard because they shared the same interest in golfing.
Recently, Alex’s company was responsible for over-seeing a private housing estate project, in which Bernard was one of the subcontractors. One day, Bernard invited Alex for lunch over which Bernard complained the funds for the project was short. He hinted if Alex could use his discretion to approve claims for an additional cost of around $5,000,000 for contingencies. Bernard even tried to convince Alex by offering shares of his company to Alex.
As Alex would retire from his company soon, should he help Bernard this time so that Bernard would return the favour after his retirement?
Case Analysis
Under Section 9(1) of the Prevention of Bribery Ordinance (POBO), it would be an offence for Alex (an employee), without the approval of his employer (the consultancy firm), to accept the advantages for exercising work discretion to approve additional claims for Bernard the subcontractor in a private housing estate project.
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, shares of Bernard’s company offered by Bernard can be regarded as advantage.
Bernard might also violate Section 9(2) the POBO for offering bribes to Alex.
Moreover, according to the Rules of Conduct of Hong Kong Institute of Engineers, members are required to discharge his professional responsibilities with integrity, dignity, fairness and courtesy. By agreeing with Bernard’s suggestion, Alex might also violate his professional code of conduct which might lead to disciplinary sanction, e.g. suspension of professional qualification.