DECember 2009 issue
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Professional Practice
APEGGA Discipline Committee Decision
In the matter of the Engineering, Geological and Geophysical Professions Act and In the matter of the conduct of Philip Thien Sung Fung
This matter came up for hearing before a panel of the Discipline Committee on October 19, 2009 at the Edmonton offices of the Association of Professional Engineers, Geologists and Geophysicists of Alberta (APEGGA).
Mr. Fung was not present at the hearing, nor was he represented. The Discipline Committee panel determined that there was proof of service of the notice of formal hearing on Mr. Fung and proceeded with the hearing in his absence.
Charges
The notice of hearing, dated April 1, 2009, contains the following charges brought by the Investigative Committee against the Member:
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That between March, 1999 and January, 2003, you directed or participated in a scheme with BCL Engineering Services to defraud your employer [Company A] by authorizing the payment of inflated or fabricated invoices from BCL Engineering Services in exchange for wrongful payments from BCL Engineering Services, either directly or indirectly.
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In March, 2003, you entered [Company A’s] premises after hours and wrongly removed invoices and related documents in order to conceal your aforesaid wrongful conduct.
Thereby committing conduct that constitutes unprofessional conduct as defined by Section 44(1) of the Engineering, Geological and Geophysical Professions Act and which is in violation of:
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1990 APEGGA Code of Ethics, Rules of Conduct 4, 5, and 8, and
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2003 APEGGA Rules of Conduct 3 and 5.
Findings
The Discipline Committee panel finds that Mr. Fung did commit the actions outlined in charges 1 and 2 above.
The panel heard from witnesses that described Mr. Fung’s actions during the time period under consideration. The Investigative Committee also submitted into evidence sworn statements by Mr. Fung made during earlier court proceedings against Mr. Fung by his employer, as well as statements made by Mr. Fung to the Investigative Committee. Mr. Fung confessed in the court proceedings and in the Investigative Committee’s investigation to participating in a kickback scheme, whereby he participated in a scheme to defraud his employer of money by approving false invoices for payment of work that either overstated the amount of work completed or for work that never occurred and for which Mr. Fung received payments from the contractor. The amount of the fraud was substantial, being at least approximately $600,000 by Mr. Fung’s own admission, and as much as $1,389,788, the amount that his employer was awarded in summary judgment against the participants in the scheme. The panel considers the statements entered into the record from these sources as being reliable and we accept them as full and sufficient evidence that Mr. Fung committed the offences as outlined in charges no.1 and 2.
The Panel next had to determine if the conduct outlined in the charges 1 and 2 constituted unprofessional conduct as outlined in the 1990 APEGGA Code of Ethics, Rules of Conduct 4, 5, and 8, and in the 2003 APEGGA Code of Ethics, Rules of Conduct 3 and 5.
The panel is aware that the dishonest conduct carried on for several years and involved the abuse of trust that the Member had built up with his employer over a career of 23 years. The employer trusted a senior employee to act in the employer’s best interests and relied upon that trust. The dishonesty was discovered through the employer’s actions when investigating a discrepancy and not through any confession by the employee. The Member acted to obfuscate and to conceal his participation by further acts that were contrary to the employer’s interests.
His less than honest conduct continued when he failed to accurately represent the liability he owed his employer in his filing for bankruptcy.
Professional engineers hold a position of trust in their dealings with their clients and employers. Society looks to engineers to decipher and understand complex matters of science, materials and cost, and relies upon the engineers to provide advice that is accurate. The engineers are expected to work on behalf of their clients/employers and not to put their own interests ahead of those of their clients/employers. To fail the client by acting in one’s own pecuniary interest at the direct expense of the client/employer is dishonest and does a disservice to the respect for and the reputation of the profession.
The panel finds that Mr. Fung’s conduct constitutes unprofessional conduct.
Orders
Having found the Member guilty of unprofessional conduct, the panel delivered that decision orally at the hearing and received the Investigative Committee’s submissions on sanctions before adjourning.
Having considered those submissions, the panel must now address the matter of penalty or discipline. The panel is aware that the Member stated during previously mentioned sworn statements that he had a gambling addiction. However, no information was submitted to the panel that this should be considered as a mitigating circumstance and, therefore, was not considered.
In consideration of the serious nature of his unprofessional conduct against his employer the following sanctions are warranted.
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Mr. Fung’s registration as a professional engineer is hereby cancelled.
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This Decision, including Mr. Fung’s name, shall be published in The PEGG.
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The other provincial/territorial engineering regulatory associations in Canada shall be notified of this Decision.
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Mr. Fung shall pay, to APEGGA, costs of the hearing in the amount of $1,150 within six months of the date of this Decision.
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Notwithstanding an appeal, this Decision shall remain in effect until the Appeal Board or the Court of Appeal, as the case may be, makes its decision on the appeal.
Dated this 3rd day of December, 2009.