CaseRef:065
Expeditionofwork
Highlander Construction Ltd, themaincontractorofahousing development project, employed five crane operators for lifting building materialsforsub-contractorsintheconstructionsite. Thestaffhandbookof Highlander clearly stipulated that staff was prohibited from soliciting or accepting advantages from persons having business dealings with the company, including sub-contractors. The crane operators were briefed this policybytheHumanResourcesManager whentheywerefirstrecruited.
Shortlyafterthecommencementofwork,thecraneoperatorsdiscussed atradepracticeamongthemselvesanddecidedtochargesub-contractors‘tea money’of$9,000permonthforexpeditingliftingoftheirbuildingmaterials. Tothosesub-contractorswhodidnotpay, thecraneoperatorswoulddelaythe liftingoftheirmaterials.
CHAN wasthe director of Shing Kee Engineering Ltd, a subcontractor responsibleforthesuperstructureplumbingworks. Hewasfamiliarwiththe craneoperators. Theyoftenwentoutformealsandgambledafterwork. When the crane operators were in financial needs, CHAN would lend them money.
A residentengineerYUwasawarethatthecraneoperatorsoftengave priority to CHAN in lifting plumbing materials before attending to other sub-contractors. HewasalsoawarethatthecraneoperatorsandCHANkept averycloserelationship. Althoughthereweresuspiciousundertakings,YU didnotmakeacomplainttotheICACashehadnoevidenceofcorruption.
Thecraneoperatorsaccepted$35,000fromCHANoveraperiodof seven months as a reward for giving special attention to the lifting of CHAN’s materials. Theincidentwasfinallyrevealedandtheywereallarrestedand eventuallyconvicted of offering/accepting advantages as a reward for expeditingliftingforCHAN,contrarytoSection 9 of the Prevention of Bribery Ordinance. Allofthem gotimprisonmentsentences.
CHANwasthebreadwinnerofhisfamily. Whileservinghisterm,hisson who was studying abroad had to return to Hong Kong as his family could no longer afford the costs involved.
Questions
1.Why were CHAN and the crane operatorsconvictedofcorruption offences?
2.Arecustomary/tradepracticesexcusesforthecraneoperatorstotake advantages on the subcontractors?
3.Whatarethepossiblecostsofcorruption?
4.Shouldtheresidentengineerreportanysuspected corruption to the ICAC
if he only has suspicion and do not have any evidence?
Analysis
Section9ofthePreventionofBribery Ordinance
The crane operators acceptedanadvantagefromCHANforexpeditingthe lifting of his materials was an offence under Section 9(1) of the Prevention of BriberyOrdinance. CHANalsocommittedanoffenceunderSection9(2)of thePreventionofBriberyOrdinance. Thesection(Section9)statesthat:
•anagent(normallyanemployee)cannotsolicitoracceptanadvantage withoutthepermissionofhisprincipal(normallytheemployer)when conductinghisprincipal’saffairsorbusiness;and
• the person who offers the advantage also commitsan offence.
Customary/TradePractices
It is the duty of crane operators to use the crane to assist constructing parties toliftbuildingmaterialsinaconstructionsite. Thereshouldbenoexcusefor corruptionbyreferringto acustomaryortradepracticeofsolicitingand/or accepting‘teamoney’ forexpeditingwork. Companymanagementshould therefore strictly prohibit this malpractice and make staff clearly aware of the prohibitionandtheseriousnessofanybreaches.
SiteOperation
Contractor site management should cover the operation logisticsofthetower cranes. The use of the cranes for lifting materials should be based on operational considerations with laid-downinstructions. Discretion at the operator level should be prohibited andthis message should be clearly conveyed to all staff concerned.
CostsofCorruption
The consequence of corruption is serious. In this case, CHAN was sentencedtoimprisonment. Hisfamilywasadverselyaffectedandthestudy ofhissonwasinterrupted. Corruptionruinsbusinessesandcareersandputs individualsintodisrepute.
MakeaCorruptionComplaint
Many complainants have the question of‘Should I report suspected corruption totheICACifIdonothaveanyevidence?’ Anypersonisencouragedto report any matter which he genuinely believes may involve corruption, even if he does not have any direct evidence.
To facilitate ICAC in investigation,one should include in his complaint as much details aspossible. Investigation and collection of evidence are the responsibilitiesoftheICAC. Onlycomplainantswhoknowinglymakefalse andmaliciouscomplaintsareliabletoprosecution.