Ethics in Practice

Ethics in Practice A Practical Guide for Financial Practitioners

A Practical Guide
for Financial Practitioners

2004 J 2529
This book is jointly published by the organizers of Professional
Ethics Programme for the Securities, Futures and Investments Sectors

ࠗಋল৻ᚋਐነผ
Hong Kong Association of Financial Advisors

ࠗಋ͚‫מ‬ʥ೶့ֺτࠉʔ̇
Hong Kong Exchanges and Clearing Limited

ࠗಋҙ༅ਥ‫ټ‬ʔผ
Hong Kong Investment Funds Association

ࠗಋᖬԴਿพነผ
Hong Kong Securities Institute

ࠗಋᖬԴነผ
Hong Kong Securities Professionals Association

ࠗಋᖬԴ຤޵พԾผτࠉʔ̇
Hong Kong Stockbrokers Association Limited

ࠗಋऋПϷ‫ਂܧ‬෧‫ܧ‬ʔອ
Independent Commission Against Corruption, HKSAR

ᖬԴʥ౨ஒԑ৻ဟྦկࡗผ
Securities and Futures Commission

October 1999 English Version - First Edition

March 2000 English Version - Second Edition
March 2004 English Version - Revised Edition
CONTENTS

Message from Financial Secretary, HKSAR iii

Message from Commissioner,

Independent Commission Against Corruption, HKSAR iv

Message from Chairman, Organizing Committee of Professional

Ethics Programme for the Securities, Futures and Investments Sectors v

Organizing Committee vi

Acknowledgements vii

Definitions viii

PART 1 ETHICS IN PRACTICE - NOT OPTIONAL

1.1 Introduction 4
1.2 What is business ethics? 4
1.3 Why is business ethics important to financial practitioners? 5
1.4 Why is business ethics important to financial markets? 6

PART 2 LEGAL AND ETHICAL ISSUES FACED BY

FINANCIAL PRACTITIONERS

2.1 Introduction 12
2.2 Standards of behaviour 12
2.3 Guidelines to handle legal and ethical issues 14
2.4 Bribery, illegal gifts and commission 15
2.5 Use of confidential information 23
2.6 Conflicts of interest 30
2.7 Professional competence 35

PART 3 ETHICAL DECISION MAKING

3.1 Introduction 44
3.2 ETHICS PLUS decision making model 44
3.3 How to apply the ETHICS PLUS decision making model 46
PART 4 ETHICS IN MANAGEMENT - THE COMPLETE SOLUTION

4.1 Introduction 54
4.2 How to build up an ethical culture 54
4.3 Formulating a corporate code of conduct 56
4.4 Strengthening a system of controls 57
4.5 Organizing training for staff 61
4.6 Whistle blowing 62

PART 5 SERVICES AND ASSISTANCE

5.1 Introduction 66
5.2 Independent Commission Against Corruption 66
5.3 Regulatory authorities 70
5.4 Professional institutions 71

APPENDICES AND REFERENCES

Appendix I : Extracts of Securities and Futures Ordinance
(Sections 114 and 115) 74
Appendix II : Extracts of the Prevention of Bribery Ordinance 78
Appendix III : Extracts of Securities and Futures Ordinance
(Sections 270 and 291) 81
Appendix IV : Sample Code of Conduct 86
References 99
1.1 Introduction

Hong Kong, being an international financial centre, has well developed

financial markets. Fund management and corporate finance businesses have
also grown increasingly sophisticated with a strong presence of international
financial institutions. To maintain Hong Kong’s leading position as an
international financial centre in the Asia Pacific region, through upholding high
ethical standards, is in the interests of every financial practitioner and investor.
In short, ethics in financial practice is not an optional issue. It is a necessity.

1.2 What is business ethics?

1.2.1 Ways of conducting business

Business ethics covers the whole spectrum of interactions between

individuals, companies, industries and the society. It is about how we conduct
our business affairs fairly and legally, irrespective of an individual’s or a
company’s standing and size of operation in the market.

1.2.2 Above legal requirements

People often tend to define business ethics as

meaning merely operating within the law.
However, it means far more than that. Ethics, in
business, is a set of standards above the legal
minimal requirements, that clearly defines the
approach to handling ethical issues in this
mercurial business environment where there are
few fixed rules, but many "grey" areas.

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1.3 Why is business ethics important to
financial practitioners?

1.3.1 Basic registration requirement

In most financial markets throughout the world, practitioners providing

securities, futures and foreign exchange services are required to be authorized
by a regulated authority. In Hong Kong, practitioners are required to be
licensed by or registered with the Securities and Futures Commission (SFC)
before conducting business. It is an offence to conduct such financial services
business without the appropriate licence or registration.

In order to obtain or maintain such a licence or registration with the

SFC, a person must satisfy and continue to satisfy the SFC that he is a "fit and
proper person". That is to say, the onus is on the applicant to prove himself
that he meets the necessary requirements for licensing or registration, whether
he is an individual or a company.

The detailed guidelines are set out in the "Fit and Proper Guidelines"
issued by the SFC. It places emphasis on the high standards of conduct for
applicants apart from their educational, experiential and professional
qualifications. They must conduct their business with integrity, fairness and
diligence, and organize their internal affairs in a responsible manner. The SFC
will inevitably impugn the fitness and propriety of those financial practitioners
whose behaviour is unethical.

1.3.2 Prevention of non-compliance

The principles of business ethics underpin the "fit and proper"

guidelines and related regulations in the financial industry. When such self
discipline of practising above the legal minimal requirements becomes a state
of mind, financial practitioners are guarded against regulatory sanctions and
thus avoid the costs of non-compliance such as reprimand, suspension or
revocation of licence, or being restricted and intervened.

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 Prevention is always better than cure. Spending effort up front in
adhering to the ethical standards expected by the regulatory authorities is far
better than rebuilding the hard-earned reputation of a financial intermediary
that has been impaired by unethical practice. As such, adopting a high
standard of business conduct is not an esoteric concept. It is a realistic one
which ensures the future success of financial practitioners.

1.3.3 Effective marketing tool

A number of survey studies revealed that an average of 70% of

consumers, including investors, considered the ethical conduct of an
individual or a company a major bearing on their decision in selecting its
products or services (1). The marketing equation is thus simple: Investors will
seek business relationships with organizations that they can trust. The
implementation of business ethics within a company creates an environment of
confidence, familiarity and predictability which is crucial to customer loyalty
and long-term business relationships with clients. In other words, business
ethics and revenues are inextricably bound regardless of differences in the
structure and size of companies.

1.4 Why is business ethics important to

financial markets?

1.4.1 Enhancement of competitiveness

In the face of severe competition, especially in the Asia Pacific region,

profit making or improvement of service quality is not the only element to
maintaining the competitiveness of Hong Kong. Both local and overseas
investors are less tolerant of unethical practices nowadays. In the course of

(1) The percentage is quoted from "Hunting - Who cares about socially responsible business
practices? Seventy percent of consumers, that’s who." written by Gayle Sato Stodder, 1998.

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business dealing, they are seeking assurances about market integrity and
fairness, a level playing field in competition and transparency. To this end, the
commitment of all financial practitioners to observing the laws and practising
business ethics is the key to building up the trust and confidence of investors
and enhancing the competitive edge of the financial markets in Hong Kong.

1.4.2 Requirement of international standards

These days, people around the world are more aware of the notion of
right and wrong. Sound business practice has reached new heights in market
compliance and ethical literacy. The financial markets in Hong Kong have to
move with the times and are in tandem with the international requirements of
placing heavy emphasis on the market’s transparency, accountability and the
business conduct of financial practitioners themselves.

1.4.3 Ultimate benefit of the profession

Few will risk their investments in an unethical and corrupt market. The
prospect of the profession in the financial industry hinges on an environment
regulated by ethics and professional discipline. When business ethics is
adequately enforced in the financial markets, it ultimately benefits all
practitioners. The reverse is equally true if business ethics is neglected.
Unethical practitioners may find themselves in trouble when public opinion
turns against them and the business opportunities are lost to competitors.

1.4.4 Essential ingredient of professionalism

The continuance of public confidence in the financial markets largely

depends on the professional ethics of practitioners in protecting the interests of
clients and stakeholders including employers, employees and the industry
itself. Furthermore, the fulfilment of professional standards through ethical
business practice is a social responsibility which should be borne by all
financial practitioners.

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2.4.4 Application of the conduct requirement

Scenario 1 Offering and accepting an advantage both constituting an offence

Peter is a dealing director of a brokerage company. Due to the

favourable performance in the local property market, the Hang Seng Index is
driven up and many of his clients place orders to buy blue-chip stocks. In
order to deal with the clients’ orders expeditiously, Peter decides to direct a
portion of the business to an external broker.

Without taking the service quality into consideration, Peter offers the
business to his golfing partner, David. In fact, David charges a much higher
brokerage rate than other brokers. One day, in a prestigious country club,
David thanks Peter for giving him the business. He tells Peter that he is now on
the executive committee of the country club and is able to secure for Peter one
of the highly sought after memberships. David even implies that if Peter
continues to provide him with business in the future, Peter will have more
advantages. In response, Peter accepts the offer gratefully.

Analysis: Peter violates the Codes of Conduct by abusing his official

position to refer business to David in return for accepting an advantage
in the form of a country club membership. Peter fails to fulfil his
obligation to protect the interests of his employer and clients as David
may not be the broker who provides the best service to his company,
not to mention the excessive brokerage fee charged.

If Peter does not obtain prior permission from his employer

to accept the advantage, both Peter and David are in breach of Section
9 of the PBO. That is, Peter commits an offence of accepting a bribe
and David commits an offence of offering a bribe. Even if Peter refers
the business to David because the latter can offer the same quality of
service at the same brokerage fee as other brokers, they still violate the
PBO. In court, Peter cannot excuse himself by saying that his employer
did not suffer any loss as a result of his act. Whether his act has caused
damage to the employer is only one of the factors to be considered in
mitigation by the judge.
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