No Excuse for Ignorance About Accepting Advantages

Phyllis Tsang - Editorial Board member, The Journalist

A recent suspected bribery case involving a top executive of a broadcaster has raised public concern over where to draw the line between accepting gifts of a reasonable price at social events and accepting bribes and advantages. What should journalists do in situations where gifts and laisee packets are handed out when they are on assignment and what are the proper methods of dealing with this?

Senior Counsel Ronny Tong Ka-wah suggests that journalists should be very cautious if they are being offered advantages like gifts and laisee packets by an interviewee. Ignorance is not an excuse for journalists involved in a bribery offence after accepting advantages from others without the consent of employers, the media organizations, he says.

Under the Prevention of Bribery Ordinance, anyone who solicits or accepts advantages in relation to his job without the permission of the employer is guilty of an offence and subject to a maximum fine of HK$ 500,000 and seven years" imprisonment.

But what is a definition of "advantage" in law? Is there any difference between accepting a HK$ 20 laisee packet and a valuable gift such as laptop computer in a lucky draw at a working function?

The answer is there is no difference between these two situations and both are listed as advantages in law. Advantage includes any money, reward, gift, loan, fee, subsidy reward, office, employment, contract, services or favor.

"No matter what the monetary value of the gift is, a journalist as an employee should have the consent from the employer before accepting any advantage from other parties in relation to their work", Tong said.

Laisee packets
Media organisations should set up a clear guideline or code of conduct to journalists on how to handle advantages. This would be a good practice for eliminating the potential for bribery, he added.

A cap on the value of the gifts that journalists are allowed to accept in the guideline would clarify that the journalist is allowed to accept gifts below this cap without the need to declare or report to the section head.

"A journalist would be regarded as committing an offence if he/she does not report to their boss after receiving an advantage above the cap listed in their company guideline," Tong said.

The principle behind journalists reporting or obtaining consent from their employers on accepting advantages is related to the principle of "secret process" in Common Law, Tong said.

Any advantage obtained from the work of an employee is regarded as the property of the employer. Therefore, the contract between the employer and employee would be violated if the employee received any advantage, without the authority of the employers, in a secret process, Tong explained.

A prize received in a lucky draw at a work function and laisee packets from the interviewee are all regarded as advantages under the law, according to the definitions in the ordinance.

Some journalists choose to donate the prize or laisee packet to charities, but they should also obtain the consent from the employers instead of donating it without permission of the employer. By doing so the journalist may be considered to have accepted an advantage and used it for his own purpose.

Customary practice no defence
Loads of hampers, including expensive wines, delicacies and even cans of abalone, are sent to news desks and journalists during festive occasions such as Christmas and Lunar New Year. Tong said the principle of obtaining consent also applied to such hampers.

Journalists might not need to make specific declarations to their boss if a hamper sent to a news desk with 10 persons and the nominal value of it was below the sum of the combined cap of 10 persons.

Some journalists might argue that the gifts they received had no influence on the report about the advantage provider. But it is clearly stated in the law that it is no defense to say the purpose of the bribe was not carried out, nor that there was no intent to return a service for the gift.

Meanwhile, the customary practice in any profession, trade, vocation or calling cannot be a defense in any proceedings for an offence under the bribery law.

In short, we, the journalists, should be very cautious if we are being offered any form of advantage while covering news. Asking for consent or approval from the section head should be a good way to protect yourself and avoid being involved in any bribery offences. A "sunshine test" is also a good method: Ask yourself if you can have a clear conscience if it was decided that acceptance of gifts should be revealed.