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Offering client’s son a job to get a deal – is that bribery?

2021-07-29

Introduction   

A Hong Kong logistics group went public in December 2013 but behind the scene, there was an alleged bribery involving the former managing director (the “Defendant”) of an international financial institution (“JPM”) and the son of the director of a company (“K Holdings”) in getting the IPO deal. It was not until February this year did the Court hand down judgment in acquitting the Defendant of the charge of offering an advantage to an agent.


Offering client’s son a job to get a deal – is that bribery?


Facts

The Defendant joined JPM between May 1994 and March 2001 and re-joined JPM between September 2002 and April 2015 as its managing director.


At the material time, K Holdings and another related company (“KP”) were the major clients of JPM, and another group company (“KL”) was a wholly owned subsidiary of KP.


Mr A was the director of K Holdings from September 1999 to September 2016, and also the deputy director of K Holdings in 2010. He was appointed as the chairman of KP from August 2003 to June 2008.


Mr A’s son, was employed under a long-term contract of JPM in June 2010 and his salary was over HK$500,000 a month and was adjusted upwards to over HK$600,000 a month afterwards.

The Defendant was accused of deliberately arranging Mr A’s son to be employed by JPM and was charged of offering an advantage to an agent under the Prevention of Bribery Ordinance against the following backdrops:

  1. JPM usually considered candidates with a GPA (University academic score) of 3.5 and whether they have  any financial background, leadership skills, language skills etc. and there would have to be one or two video interviews and candidates would eventually have to be approved by the legal and compliance department, which would have to receive a recommendation letter from the sponsor of the candidate;
  2. In the case of Mr A’s son, (i) his GPA was 3.3, which belonged to the borderline category; (ii) although his résumé was impressive, his experience did not suit the position; (iii) and he did not get the approval from the legal and compliance department, but he was nevertheless hired on an expedited manner with exceptional benefits.
  3. KL was going to decide which bank would be doing their IPO within the next 10 days at that time and an email disclosed that one of the witnesses of the prosecution said “in any event, we definitely need to offer Mr A’s son the 1-year programme.

 

The prosecution’s case was that the Defendant used a JPM contract to Mr A’s son and the “Sons & Daughters Program”, which was a program for recruiting the children or relatives of clients or potential clients as interns, as benefits to Mr A in order to maintain JPM’s position in getting the KL IPO deal. Section 2 of the Prevention of Bribery Ordinance provides that “advantage”, unless the context otherwise requires, means (among other things) any office, employment or contract. Section 2 also provides that if an agent indirectly takes, receives, or obtains an advantage, whether for the agent or for any other person, that is considered to be an acceptance of the advantage by the agent.


The Defendant denied the allegations and argued that in order to find her guilty under the Prevention of Bribery Ordinance, the court would have to consider:

  1. whether the Defendant offered an advantage to Mr A;
  2. whether the Defendant offered the advantage with a “prohibited purpose”;
  3. whether the Defendant had any defences.


The legal principles and their application

The Court of Appeal had in the case of香港特別行政區  何年宋及其他 [2019] HKCA 1306 laid down the following:

  1. the prosecution has to prove the intention of the person offering an advantage is to use the advantage offered as an inducement or reward for the other (the “agent”) to act or forbear to act in a manner relating to the agent’s principal’s affairs or business;
  2. the act or forbearance of the agent must be related to the affairs or business of the principal, which means that the act or forbearance must be directed to and intended to affect or influence the affairs or business of the principal;
  3. the act or forbearance directed to the affairs or business of the principal must be an act or forbearance that undermines the integrity of the agency relationship and harms the interests of the principal, and the harm need not be immediate or economic in nature. 

In Secretary for Justice v Chan Chi Wan Stephen [2017] 20 HKCFAR 98, the Court of Final Appeal held that the harm includes reputational damage. “The mens rea requirements of knowledge, belief and intention adhere in their appropriately adapted forms to the essential actus reus ingredients of each of these variants, applied independently to each person allegedly involved in the transaction… In offering cases, the prosecution must prove that the offeror intended that the advantage would be accepted as an inducement or reward for or otherwise on account of the agent’s act or forbearance which is aimed at and intended to influence or affect the principal’s affairs or business.

In the present case, the judge concluded that the Defendant did offer an advantage to Mr A when she gave Mr A’s son a position (offered an employment contract) in JPM. However, the court was not sure whether the Defendant had a corrupt intent when she could have made the offer merely to maintain a good client relationship with KL, and mentioned the prospect of listing on the referral to show off her knowledge to her colleagues. Further, the referral was not against the purpose of the “Sons & Daughters Program” and the Defendant did give the résumé of Mr A’s son to JPM for approval. It was not sure whether the legal and compliance department of JPM approved the employment but this department was the gatekeeper and it failed its job in letting the employment procedures of Mr A’s son turn into a mess. To give the Defendant the benefit of the doubt, the court decided that the prosecution could not prove the Defendant had the intent to offer an advantage.



Conclusion

Bribery involves the act of offering an advantage to an agent and the intention that the advantage would be accepted as an inducement or reward for the agent’s act or forbearance which is directed at and intended to affect or influence the principal’s affairs or business. Oftentimes, it is the intent requirement that would turn a case around as the prosecution have to prove beyond reasonable doubt that a defendant gives an advantage for the purpose of inducing or rewarding the other for making certain decisions in relation to its affairs or business but not some other reasons. Employers and corporations should be mindful of the risk related to offering employment contracts (including summer jobs and internships) to the children of clients and contacts under the Prevention of Bribery Ordinance, particularly when there are ongoing and close business dealings between the offeror of the advantage and the recipient agent.

  


For enquiries, please feel free to contact us at:

E: criminal@onc.hk                                                              T: (852) 2810 1212
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www.onc.hk                                                                     F: (852) 2804 6311

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2021


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