In forceUpdated to 20 May 2022Read it in Bahasa Malaysia

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Malaysian Anti-Corruption Commission Act 2009 · Updated to 20 May 2022 · Part IV · Offences and Penalties

17. Offence of giving or accepting gratification by agent

A person commits an offence if—

(a)

being an agent, he corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or a reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or

Malaysian Anti-Corruption Commission 25

(b)

he corruptly gives or agrees to give or offers any gratification to any agent as an inducement or a reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business.

Offence by commercial organization 17a. (1) A commercial organization commits an offence if a person associated with the commercial organization corruptly gives, agrees to give, promises or offers to any person any gratification whether for the benefit of that person or another person with intent—

(a)

to obtain or retain business for the commercial organization;

(b)

to obtain or retain an advantage in the conduct of business for the commercial organization.

(2)

Any commercial organization who commits an offence under this section shall on conviction be liable to a fine of not less than ten times the sum or value of the gratification which is the subject matter of the offence, where such gratification is capable of being valued or is of pecuniary nature, or one million ringgit, whichever is the higher, or to imprisonment for a term not exceeding twenty years or to both.

(3)

Where an offence is committed by a commercial organization, a person—

(a)

who is its director, controller, officer or partner; or

(b)

who is concerned in the management of its affairs, at the time of the commission of the offence, is deemed to have committed that offence unless that person proves that the offence was committed without his consent or connivance and that he exercised due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.

(4)

If a commercial organization is charged for the offence referred to in subsection (1), it is a defence for the commercial organization to prove that the commercial organization had in place adequate procedures to prevent persons associated with the commercial organization from undertaking such conduct.

(5)

The Minister shall issue guidelines relating to the procedures mentioned in subsection (4).

(6)

For the purposes of this section, a person is associated with a commercial organization if he is a director, partner or an employee of the commercial organization or he is a person who performs services for or on behalf of the commercial organization.

(7)

The question whether or not a person performs services for or on behalf of the commercial organization shall be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between him and the commercial organization.

(8)

For the purposes of this section, “commercial organization”

means–

(a)

a company incorporated under the *Companies Act 1965

[Act 125] and carries on a business in Malaysia or elsewhere;

(b)

a company wherever incorporated and carries on a business or part of a business in Malaysia;

(c)

a partnership–

(i)

under the Partnership Act 1961 [Act 135] and carries on a business in Malaysia or elsewhere;

(ii)

which is a limited liability partnership registered under the Limited Liability Partnerships Act 2012

[Act 743] and carries on a business in Malaysia or elsewhere; or

(d)

a partnership wherever formed and carries on a business or part of a business in Malaysia.

*NOTE—The Companies Act 1965 [Act 125] has since been repealed by the Companies Act 2016

[Act 777] which come into operation on 31 January 2017—see subsection 620(1) of Act 777.

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Terms defined in s 3

agent
Defined · s 3
“agent” means any person employed by or acting for another, and includes an officer of a public body or an officer serving in or under any public body, a trustee, an administrator or executor of the estate of a deceased person, a subcontractor, and any person employed by or acting for such trustee, administrator or executor, or subcontractor;
Open s 3
business
Defined · s 3
“business” means any activity carried on for the purpose of gain or profit and includes all property derived from or used in or for the purpose of carrying on such activity, and all the rights and liabilities arising from such activity;
Open s 3
Commission
Defined · s 3
“Commission” means the Malaysian Anti-Corruption Commission;
Open s 3
gratification
Defined · s 3
“gratification” means— (a) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage; (b) any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity; (c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part; (d) any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage; (e) any forbearance to demand any money or money’s worth or valuable thing; (f) any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and (g) any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (a) to (f);
Open s 3
Minister
Defined · s 3
“Minister” means the Minister responsible for the Malaysian Anti-Corruption Commission;
Open s 3
officer
Defined · s 3
“officer” or “junior officer” means any officer or junior officer appointed under subsection 6(1) or (2);
Open s 3
principal
Defined · s 3
“principal” includes any employer, any beneficiary under a trust, any trust estate, any person beneficially interested in the estate of a deceased person, the estate of a deceased person, and, in the case of any person serving in or under a public body, the public body;
Open s 3

Report

Read on from s 18

Part V

Investigation, Search, Seizure and Arrest

Read on from Part V

Part VI

Evidence

Read on from Part VI

Part VII

Prosecution and Trial of Offences

Read on from Part VII

Part VIII

General

Read on from Part VIII

Part IX

Repeal and Saving

Read on from Part IX