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Integrity in Practice - A Practical Guide for Medical Practitioners on Corruption Prevention

Legal RequirementsLegal Requirements

The Prevention of Bribery Ordinance (POBO) (Chapter 201, Laws of Hong Kong)

The POBO is the piece of legislation against corruption in Hong Kong to uphold a fair and corruption-free society and safeguard the legitimate interests of different stakeholders. The law governs corruption in both the public and the private sectors.

Doctors employed by the government or public hospitals managed by the Hospital Authority are public servants who must abide by the relevant provisions of the POBO, in particular Sections 4 and 5. Doctors employed by the government must further comply with Section 3 of the POBO and familiarise themselves with the Acceptance of Advantages (Chief Executive's Permission) Notice which sets out the rules governing solicitation and acceptance of advantages in the private capacity of government officers.

Section 4 (Bribery)

Section 4 of POBO aims to prevent public servants from abusing official authority for private gain and safeguarding the interests of public bodies and the community at large.

It is an offence for a public servant, in Hong Kong or elsewhere and without written permission of the public body, to solicit or accept an advantage in relation to his official capacity.
Any person offering such an advantage also commits an offence of corruption.

Section 5 (Bribery in relation to public contracts)

Section 5 of POBO aims to maintain fair play in the procurement of contracts with public bodies.

It is an offence for a public servant, without permission of the public body, to solicit or accept an advantage for giving assistance or using influence in securing contracts with the public body.
Any person offering such an advantage also commits an offence of corruption.

Section 9(3) (Use of false documents to deceive principal)

It is an offence for an agent to use any false document, receipt or account with intent to deceive his principal.

Section 3 (Soliciting or accepting advantages without permission)

Section 3 of POBO aims to prevent government officers from falling into the "sweetening or softening up process" by accepting advantages and thereby rendering themselves vulnerable to subsequent corrupt approaches.

A government officer, who without the general or special permission of the Chief Executive, solicits or accepts any advantage shall be guilty of an offence.
Government officers should refer to the Acceptance of Advantages (Chief Executive's Permission) Notice for details about the general and special permission to accept advantages.

Common Law Offence of Misconduct in Public Office

Misconduct in public office (MIPO) is a common law offence which targets all forms of serious abuse of office by public officials.

The Court of Final Appeal has in previous court cases spelt out the key elements of the offence of MIPO. It was held that the offence would be committed where -

a public official;
in the course of or in relation to his public office;
wilfully misconducts himself; by act or omission (for example, by wilfully neglecting or failing to perform his duty);
without reasonable excuse or justification; and
where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The misconduct must be deliberate rather than accidental in the sense that the public official either knows that his conduct is unlawful or wilfully disregards the risk that his conduct is unlawful. Wilful misconduct without reasonable excuse or justification is culpable.

A public official may commit MIPO even if his misconduct does not involve any bribery or he does not have any pecuniary gains as a result. The essential feature of the offence is an abuse by the public official of the powers, discretions or duties exercisable by virtue of his official position conferred on him for the public benefit.

Public body - includes the government and the organisations scheduled in the Prevention of Bribery Ordinance. Hospital Authority is one of such organisations.
Public officer - means any prescribed officer, i.e. any person holding an office of emolument, whether permanent or temporary, under the Government, and also any employee of a public body.
Public official - for the purpose of MIPO, a public official is a person who is vested with powers, duties, responsibilities or discretions which he is obliged to exercise or discharge for the benefit of the general public. Such a person may or may not be employed by the Government, and he may or may not be paid.
Principal - generally refers to an employer.
Agent - includes a public servant and any person employed by or acting for another.
Advantage - refers to anything that is of value such as money, gift, loan, fee, reward, commission, office, employment, contract, service, favour, payment, release or discharge of loan or liability, etc., but does not include entertainment which is defined as the provision of food or drink, for consumption on the occasion when it is provided, and of any other entertainment connected with or provided at the same time.
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 must 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. In the public sector, permission of the public body e.g. Hospital Authority must be in writing.
Custom constitutes no defence - According to Section 19 of the POBO, it shall not be a defence to claim that any advantage accepted or offered is customary in any profession, trade, vocation or calling. The court shall make the judgement based on whether permission has been given by the recipient's principal.
Agreement counts - According to Section 11 of the POBO, the offeror and the recipient of a bribe are liable to prosecution if an agreement of corruption is reached. Both parties will have breached the law irrespective of whether or not the purpose of bribery has been carried out.
Penalty :
  • Any government officer convicted of an offence under Section 3 is subject to a maximum penalty of one year's imprisonment and a fine of $100,000.
  • A person convicted of an offence under Section 4 or Section 9 of the POBO is subject to a maximum penalty of seven years' imprisonment and a fine of $500,000 while the maximum penalty of violating Section 5 is ten years' imprisonment and $500,000 fine.
  • 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.
  • A public officer convicted of MIPO is punishable under Section 101I(1) of the Criminal Procedure Ordinance (Chapter 221, Laws of Hong Kong), and is liable to a maximum penalty of seven years' imprisonment and a fine.
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