Anti-Corruption Legislation -
An Overview of the Prevention of Bribery Ordinance (PBO)

The offering and acceptance of bribes can unfairly influence
judgment and decisions, and seriously impair the interests
of clients and other stakeholders.

To prevent non-compliance, professionals are obliged to
thoroughly understand their professional code of conduct
and the Prevention of Bribery Ordinance (PBO).

The PBO, governing both the private and the public sectors,
is the law acting against corruption. Major points of the
Ordinance are summarised below:

Contravening any statutory provisions?
In compliance with Rules of Conduct of Hong Kong Institute of Surveyors?
In compliance with the code of conduct of your employer?
Are you alert to conflicts of interest or other grey areas?
Provisions of PBO governing the private sector  
Provision
Summary of the law
Section 9

Prevent corruption to
maintain fair play in
the private sector and
uphold market integrity
  • It is an offence for an agent (normally an employee) to solicit or accept an advantage without permission of his principal (normally the employer) as an inducement to, or reward for, his doing an act in relation to his principal's affairs.

  • The person who offers the advantage is also guilty.

  • It is also an offence for an employee to use any false document, receipt or account to deceive his employer
Provisions of PBO governing dealings with public servants
In executing projects, surveyors may come into contact with public servants, including government officials and employees of public bodies such as gas or power companies. Thus, it is important to get a clear understanding of the following provisions:
  
Provision
Summary of the law
Section 4

Prevent public officials from abusing authority for personal gain and safeguard community's interests
  • It is an offence for a public servant to solicit or accept any advantage offered as a reward in connection with the performance of his official duty
  • Any person offering such an advantage also commits an offence
Section 5

Maintain fairness in the procurement of contracts with public bodies
  • It is an offence for a public servant without written permission of the public body to solicit or accept an advantage for providing assistance in securing contracts from the public body
  • Any person who offers such an advantage can also be liable to an corruption offence
Section 6 & 7

Maintain fair play in tendering of public projects
  • Any person who accepts an advantage from another person for not making a tender or bidding at an auction in relation to a public body's project is guilty of an offence.
  • Any person who offers the bribe in this situation also commits an offence
Section 8

Prevent dishonest dealings with public officials
  • It is an offence for a person to offer an advantage to a public servant while having dealings with the public servant's office/department.
Explanatory notes
  1. Principal - A principal generally refers to an employer. In a private organisation, "employer" means the proprietor or the board of directors. For a surveyor, your principal is not confined to your employer, but may include your clients when you are doing an act in relation to your clients' business.

  2. Agent - An agent is a person acting for, or employed by, the principal. At the same time, you are also the agent of your clients if you are doing an act in relation to your clients' business.

  3. Advantage - Advantage refers to anything which is of value such as money, gift, employment, service, or favour etc., but does not include entertainment, which means food or drinks provided for immediate consumption on the occasion.

  4. Principal's permission - It is lawful for an agent to accept an advantage in relation to his official duties with his principal's permission. Such permission has to be sought before the advantage is solicited or accepted. If the advantage is accepted without prior permission, the agent must apply for his principal's retrospective approval as soon as possible. When you are acting on behalf of your client in handling his business, you must also obtain the consent of your client to the acceptance of an advantage in addition to your employer's permission.

  5. Penalties - A person who violates the PBO can be subject to a maximum penalty of ten years' imprisonment and a fine of $1,000,000. He may also be prohibited from taking up a management post of any corporation or public body, or practising any profession for a period not exceeding seven years.

  6. Verbal agreement counts - Offerer and recipient of a bribe are liable to prosecution so long as a verbal agreement of corruption is reached, and both parties will be guilty notwithstanding that the purpose of the bribery is not carried out. Under Section 11 of the PBO, if it could be proved that an advantage was given to the acceptor as a reward for favours done to the offerer, the following should not be considered a defence: (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.

  7. Custom constitutes no defence - It shall not be a defence to claim that any advantage accepted or offered is customary in any profession, trade or calling. The court shall make the judgment based on whether permission has been given by the recipient's principal.
Tips to handle offering and acceptance of advantages

(a) Seek guidance from the employer: clarify with your employer if there is any written policy on whether employees can accept advantages from clients or business associates in the course of business dealings.

(b) Avoid the "sweetener": avoid a situation whereby the acceptance of advantages will place you in a position of obligation to reciprocate the offerer. From past experience, corruption does not always start with a direct bribe. In fact, it often begins with a "sweetening up" process laden with lavish entertainment and gifts which do not seem to be connected with your official duties at the time of offering. Hence, you will be trapped in an embarrassing or compromising situation when you are asked to return a favour later on.

(c) Ensure that the recipient has his employer's permission before offering advantages: obtain the confirmation from the recipient's employer that he is permitted to accept advantages from clients or business associates.