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Case 2:	Customary Gifts

Customary Gifts

While having dealings with a government department, the proprietor of a company offered boxes of mooncakes to an officer of the department a few days before the Mid-Autumn Festival.  Despite the officer’s refusal to accept, he insisted and left the mooncakes behind.  A senior officer of the department referred the case to the ICAC and returned the mooncakes to the proprietor.

Offences Committed

In this case, the proprietor of the company, while having dealings with the government department, offered advantages (i.e. the mooncakes) to an officer of the department concerned, who was a public servant.  The proprietor thus contravened Section 8 of the POBO.

Case in Perspective

Unlike bribery (Section 4 of the POBO) which often involves a reciprocal performance of duties (or refrain from performance of duties) by a public servant being offered an advantage, Section 8 of the POBO does not require the proof that the advantage is offered in return for any favour.

While it is a custom for business companies or persons to offer gifts (e.g. mooncakes and/or hampers) to business associates in festivals or other special occasions, the POBO provides that for any POBO offence, it shall not be a defence that the gifts offered are customary in any profession, trade, vocation or calling.

If on any occasion a public servant declines to accept an advantage, he is not only trying to be polite, and the offeror should not insist.

Legal implication aside, business companies or persons who, while having business dealings with any government department or public body, offer advantage to any public servant of the government department or the public body concerned, in particular those who are performing regulatory or supervisory duties, may attract criticisms or allegations of intention to secure unfair advantage through unethical means, which would adversely affect their business reputation in the long term.