FAQ

01
  • According to the Prevention of Bribery Ordinance (POBO), public servant includes any government officer, employee of public body and member of its governing body (e.g. the council, board or committee), whether permanent or temporary, paid or unpaid.
Who are public servants?
02
  • Public body includes any board, commission, committee or other body specified in the Schedule of the POBO, such as public transport operators, public utility companies, tertiary education institutions, public hospitals, etc. It also includes the Government, the Executive Council, the Legislative Council, any District Council, any board, commission, committee or other body appointed by or on behalf of the Chief Executive or the Chief Executive in Council.
03
  • Advantage includes almost anything which is of value, except entertainment, under the POBO.
  • If a public servant accepts an advantage in connection with his official capacity and without any written permission from the public body, both the offeror and the acceptor will commit an offence under Section 4 of the POBO.
  • Hence, the key factors for consideration are the purpose, motive and the circumstances of the offering and acceptance of the advantage, regardless of its value.
  • Even if the advantage is not offered on account of his official capacity, the public servant should follow the guidelines of the public body so as to avoid contravention of its code of conduct.
04
  • Red packets and gifts are regarded as advantages under the POBO. If the advantages are accepted in connection with his capacity as a public servant and without any written permission from the public body, both the employee and the offeror will commit an offence under Section 4 of POBO. It shall not be a defence that the gifts offered are customary in any profession, trade, vocation or calling.
  • Even if the red packets or gifts are not offered in exchange for any abuse of official power or position, employees should handle them in accordance with the policy of the public body.
Can an employee of a public body accept red packets in New Year or festive gifts given by service targets or business partners voluntarily?
05
  • According to Section 8 of the POBO, any person who, without lawful authority or reasonable excuse, while having dealings of any kind with a public body, offers any advantage to any public servant employed by that public body, shall be guilty of an offence.
  • Gift giving, such as sending hampers and gift sets, during festive or special occasions should not be applied to public servants employed by public bodies, even though it could be a common practice in the private sector.
06
  • If an employee wishes to accept an advantage in connection with his official capacity, a written permission must be obtained from the public body. If the code of conduct or guidelines of the organisation do not specify such permission, the employee must apply to his public body case-by-case. He should check with the management of his organisation regarding the application procedures.
07
  • Gifts and souvenirs are regarded as advantages under the POBO. If an employee of a public body or a member of its governing body represents the organisation to attend an event during which the event organiser sends him a gift or a souvenir, it should be considered as gifting to the public body, and should be handled in accordance with the policy and procedures of the public body.
08
  • Loan is defined as an advantage under the POBO. If the loan is given to the employee for abusing his official capacity or power in return, both the offeror and the acceptor of the loan will commit a corruption offence.
  • Even if no abuse of official power or position is involved, employees should not obtain loans from their subordinates or business partners, in order to maintain objectivity at work and avoid conflict of interests.
  • Employees should follow the organisation’s regulations on loan matters and make enquiry with the management when in doubt.
Can an employee of a public body solicit a loan from his colleagues or business partners?
09
  • According to the POBO, entertainment means 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, such as live performance at a banquet.
  • Although entertainment does not fall within the definition of advantage under the POBO, public servants should not accept any lavish, unreasonably generous or frequent entertainment, as it may put them in an obligatory position in the discharge of official duties and compromise their impartiality or judgement.
  • In accepting entertainment provided by clients or suppliers, public servants should follow the guidelines on acceptance of entertainment of their public bodies.
What should a public servant be aware of when attending business dinner?
10
  • Section 4 of the POBO covers corrupt dealings which happen outside Hong Kong.
  • It will be an offence for both the offeror and acceptor if advantages including free travel, accommodation and other expenses, etc. are offered to the employee of a public body in return for his showing favour to the business partner.
  • Public servants should understand and follow the organisation’s guidelines in considering the acceptance of work-related advantages and entertainment, regardless of where they are.
11
  • According to Section 11 of the POBO, both the offeror and acceptor of the bribe are guilty of an offence even if the purpose of the bribe is not carried out. It shall be no defence that the acceptor “did not actually have the power to do so”, “did not intend to do so”, or “did not in fact do so”.
  • Any person, whether directly or indirectly, accepting an advantage personally or through a third party, is also considered as having accepted an advantage.
12
  • If an employee uses any false document, such as false attendance records, with an intent to deceive his principal, he will commit an offence under Section 9(3) of the POBO. Assisting colleagues to commit such crime will also be liable to an offence of conspiracy.
Is it an offence for an employee to exaggerate hours worked in an overtime allowance claim form or assist a colleague who is late at work to sign in?
13
  • If the public servant accepts advantages from his relative and disclose restricted information of the organisation, or through any other means, to assist his relative in obtaining the contract, both the public servant and his relative will breach Section 4 of the POBO.
  • Even when no acceptance of advantages is involved, if the public servant assists his relative by providing internal information obtained in his official position, he may violate the organisation’s code of conduct, or even commit the common law offence of Misconduct in Public Office if the misconduct is serious.
  • Even if the public servant has not offered any assistance to his relative, he should still declare the conflict of interest situation arising from his relationship with the relative who is one of the bidders.
  • All public servants should, as far as possible, avoid any actual and perceived conflict of interest. When a situation of conflict of interest cannot be avoided, public servants should as soon as possible declare all relevant details of such situation to their organisations.
If a relative of a public servant would like to bid for a contract of his public body and seek his advice regarding the procurement exercise, what should the public servant do?
14
  • Upon receipt of a report on conflict of interest situation, supervisors should follow the organisation’s code of conduct and, as soon as practicable, decide on the appropriate course of action to be taken, such as to relieve the subordinate concerned of his involvement in the task, and give clear instruction to the staff concerned. The declaration, decision and action should be properly recorded. Supervisors should ensure the staff’s compliance with the instruction so as to effectively remove or mitigate the conflict of interest.
  • In deciding on the course of action to be taken, supervisors should take into account the seriousness of the conflict, the public interest involved and public perception. Supervisors can make reference to “Mitigating Measures for Managing Declared Conflict of Interest” at Appendix 5 of the Sample Code of Conduct for Employees of Public Bodies.
15
  • Mistake which is trivial and resulted from inadvertence does not fall under Misconduct in Public Office (MIPO).
  • 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.
  • Therefore, if a public servant, being a public official, wilfully misconducts himself by abusing the powers, discretions or duties exercisable by virtue of his official position conferred on him for the public benefit, and such misconduct is serious, he may be culpable under MIPO.
16
  • If public servants suspect any corruption in their organisations, including an attempt to offer bribe to a public servant, they should immediately make a report to ICAC Regional Office or 24-hour report corruption hotline 25 266 366.
  • Full evidence is not required when lodging a complaint. Complainants only need to state what he knows about the suspected corruption case and ICAC officers will follow up, based on the information provided, in accordance with the law.
If there is suspected corruption in the organisation, but no full evidence is obtained, what should be done?
17
  • Any corruption complaint with reasonable suspicion should be referred to the ICAC for follow up as soon as possible. The support from management and early reports made to the ICAC are often essential for the successful collection of evidence and investigation. If the case, however, merely involves a breach of the organisation’s code of conduct, the management should then consider taking disciplinary action against the staff concerned.
  • In case of doubt, please contact ICAC Regional Offices or call the 24-hour report corruption hotline 25 266 366.
18
  • Any person who knowingly misleads an ICAC officer by giving false information will breach Section 13B of the Independent Commission Against Corruption Ordinance and shall be liable to a maximum penalty of $20,000 fine and one year’s imprisonment.