Chapter 7
Trial and Sentencing
Since the ICAC had sufficient evidence to prove that the defendant had solicited advantages from PW2, DoJ decided to charge the defendant with two counts of soliciting an advantage by an agent, contrary to section 9(1)(a) of the POBO, Cap. 201. The trial was conducted in the Eastern Magistracy on 28 March 2017.
Section 9 of the POBO prohibits the offering of a bribe to or its solicitation/acceptance by an agent, or the use of false document by an agent to deceive his principal. Offenders are subject to a maximum penalty of 7 years’ imprisonment and a fine of $500,000.
Reasons for conviction: All elements of the offences were proved
In convicting the defendant, the magistrate held that the prosecution had proved beyond reasonable doubt all elements of the two counts of agent soliciting an advantage. He set out in his Statement of Findings the five elements of the offences as follows:
the existence of an agent-and-principal relationship
the agent made the solicitation
an advantage
the advantage was solicited as an inducement to or reward for or otherwise on account of his act
the agent’s act was in relation to his principal’s affairs or business
Based on these five elements, the magistrate ruled that the relationship between the defendant and PW2 stemmed from his provision of securities investment advice and recommendations to PW2 as an agent of the bank. Hence, by requesting extra commission from PW2 after assisting her to make profits in securities investment, the defendant did solicit and accept an advantage as an inducement to or reward for or otherwise on account of his act.
When considering whether the defendant’s act was in relation to his principal’s business, the magistrate stated that the defendant must give more investment advice to PW2 in a bid to get more commission based on the profits made. This would have two effects. First, the defendant would spend an unreasonable amount of his work hours on PW2, and the time he spent on other customers must be comparatively less. Second, the defendant would give more frequent investment advice to PW2, thus putting PW2 at higher investment risk. Hence, the defendant’s act was deemed to be in relation to his principal’s business.
The magistrate found that the defendant’s act definitely had a negative, prejudicial and detrimental effect on the bank’s affairs or business. By soliciting an advantage from his customer in private, the defendant was in breach of the bank’s code of conduct for staff, damaging the bank’s reputation as well as seriously undermining the trust between the bank and him in their employer-and-employee relationship. The magistrate also considered the case of Chan Chi Wan Stephen before the Court of Final Appeal (CFA), where the CFA confirmed that if the receiving party believed that he was accepting the advantage as reward for his doing an act in relation to his principal’s affairs or business, even if the offering party had no corrupt intent, the prosecution case was still proved. The magistrate held that the same applied to this case. As the prosecution had proved all the elements of the offences beyond reasonable doubt, the defendant was found guilty on two counts of agent soliciting an advantage.
Sentence
The defendant was sentenced to 15 months’ imprisonment and ordered to repay the bank $630,000 in restitution within 12 months after conviction of two counts of agent soliciting an advantage.