The key anti-bribery and corruption legislation is the Malaysian Anti-Corruption Commission Act 2009 (the MACC Act). The MACC Act contains a broad range of offenses that criminalize the offer and receipt of bribes in the public and private sectors. Other laws (for example the Penal Code and Companies Act) have provisions covering specific corruption offenses. However, the MACC Act is the key anti-bribery legislation used to prosecute offenders who offer and receive bribes.

Besides the MACC Act, there has been no other specific anti-bribery and corruption law enacted in the last ten years. 

Yes. Section 16(b) of the MACC Act provides that it is an offense for any person to corruptly  give, promise, or offer any person gratification as an inducement to or a reward for an officer of a public body doing or forbearing to do anything in relation to an actual or proposed transaction in which the public body is concerned. 

Further, Section 21 of the MACC Act makes it an offense for any person who offers to an officer of any public body, or being an officer of any public body solicits or accepts, any gratification as an inducement or a reward for – 

• The officer voting or abstaining from voting at any meeting of the public body in favor of or against any measure, resolution or question submitted to the public body; 
• The officer performing or abstaining from performing or aiding in procuring, expediting, delaying, hindering or preventing the performance of, any official act; 
• The officer aiding in procuring or preventing the passing of any vote or the granting of any contract or advantage in favor of any person; or
• The officer showing or forbearing to show any favor or disfavor in his capacity as such officer. 

In addition, Section 23 of the MACC Act provides that any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offense. 

Yes. Section 22 of the MACC Act makes it an offense to give, offer or promise or agree to give or offer to any foreign public official, or being a foreign public official, to solicit, accept or obtain or agree to accept or attempt to obtain, any gratification as an inducement or reward for: 

• The foreign public official using his position to influence any act or decision of the foreign state or public/international organization for which the official performs any official duties;
• The foreign public official performing, having done or forborne to do, or abstaining from performing or aiding in procuring, expediting, delaying, hindering or preventing the performance of, any of his official duties; or
• The foreign public official aiding in procuring or preventing the granting of any contract for the benefit of any person. 
   

Yes. Sections 16 (a) and 17 (a) of the MACC Act prohibit a person or agent respectively from corruptly soliciting, accepting or agreeing to accept gratification as an inducement or a reward for performing/ or forbearing to perform a task. 

Both the public and private sector are subject to the MACC Act. Further, the MACC Act applies to all offenses committed within the jurisdiction, and to offenses committed by citizens and permanent residents of Malaysia outside as well as within Malaysia. (Section 66 of the MACC Act). 

Yes. The recently enacted Malaysian Anti-Corruption Commission (Amendment) Act 2018 (“the MACC (Amendment) Act”) introduced Section 17A to the MACC Act which provides that:

“A commercial organization commits an offense 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-

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

A commercial organization is defined in Section 17A(8) as:

• “A company incorporated under the Companies Act 2016 [Act 777] and carries on a business in Malaysia or elsewhere; 
• A company wherever incorporated and carries on a business or part of a business in Malaysia; 
• A partnership – 
  • under the Partnership Act 1961 [Act 135] and carries on a business in Malaysia or elsewhere, or 
  • 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 
• A partnership wherever formed and carries on a business or part of a business in Malaysia.”

In relation to the acceptance and the receipt of bribes under Sections 16, 17, 20, 21, 22 and 23 of the MACC Act, an imprisonment term not exceeding 20 years and a fine not less than 5 times the gratification, or RM 10,000.00, whichever is higher. (Section 24(1) of the MACC Act). 

Under  the corporate liability provisions in Section 17A(2) of the MACC Act, provides for 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 higher, or to imprisonment for a term not exceeding twenty years or to both. For the imprisonment sentence, once the offense is committed by the commercial organization, the Section 17A(3) will deem that certain persons have committed that offense.
These persons are:

• The director, controller, officer (and this would include an employee) or partner; or
• A person who is concerned in the management of its affairs.

The onus then shifts on the individual who is deemed to have committed the offense to prove two elements to defend himself, namely that:

• The offense was committed without his consent; and
• He exercised due diligence to prevent the commission of the offense, taking into account the nature of his function in that capacity and to the circumstances.
   

Yes. Section 17A(4) of the MACC Act provides that it is a defense for the commercial organization to prove that it had in place adequate procedures designed to prevent persons associated with the commercial organization from undertaking the conduct stipulated in Section 17A(1) of the MACC Act. 

The law currently does not provide for parties to enter into a deferred prosecution agreement. Instead, corporate entities liable for violating the anti-corruption law may enter into a plea bargain with the enforcement authorities under the Section 172C of the Criminal Procedure Code.