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Section 17A of the Malaysian Anti-Corruption Commission (Amendment) Act 2018

Is Your Organisation Prepared for Enforcement of Corporate Liability for Bribery & Corruption?

What if bribery transpired in the hands of your organisation’s associates or network of business partners when negotiating business deals?  Were they aware of what actions are prohibited by laws or whether some actions could have been seen as undue influence?  Have they been circumventing your organisation's instructions, processes and procedures?  Could your Leadership Team have prevented it?  What are the implications?

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The consequences of an illicit act such as bribery can be very costly to the company as well as the individuals in position of authority, and that includes:

  • losing customers’ faith in the company and the implicated individuals 

  • investors being discouraged by the company’s bad ethics 

  • loss of reputation 

  • financial losses (loss of profits, expensive legal costs, etc.) 

  • losing the company’s talent pool to its competition

 

Corruption has been robbing off many societies of equitable access to healthcare, education, sanitisation, clean water, utilities, safety, protection by laws & yield from economic growth.  Today, being nonchalant about its prevalence is simply not an option.  There is a need for united resolve to see the end of it.

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​Organisations like yours need to stay ahead with Anti-Bribery and Anti-Corruption ("ABC") measures to inhibit any development of corrupt conducts in business operations.

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What does "Section 17A" entail?

All content in this website is provided for general information only and does not constitute Amaya Sentinel Consulting ("AMSC")'s professional or legal advisory or opinion of any kind.  Therefore, AMSC shall not be responsible for your reliance on such content as legal or professional advice.  AMSC reserves the right to modify the content in this website at any time.

Background

Section 17A of the MACC (Amendment) Act 2018 addresses corporate liability for corruption offences in commercial organisations. 

A Commercial Organisation ("CO") commits an offence if any Persons Associated with the CO corruptly gives, agrees to give, promises or offers to any person any gratification with the intention to obtain or retain for the CO:

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  • a business; or

  • an advantage in the conduct of business.

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Any person associated with the CO who commits such offence shall expose the CO to a conviction and to be liable to:

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  1. a fine of not less than 10 times the value of the gratification (where such gratification is capable of being valued) or RM1 million, whichever is higher; or

  2. imprisonment for a term not exceeding 20 years; or

  3. both

What is Gratification?

The MACC Act 2009 defines gratification as:

  1. 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;

  2. any office, dignity, employment, contract of employment or services and agreement to give employment or render services in any capacity;

  3. any payment, release, discharge or liquidation of any loan, obligation or other liabilty, whether in whole or in part;

  4. any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage;

  5. any forbearance to demand any money or money's worthor valuable thing;

  6. any other services or favorof 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

  7. any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (1) to (6).

Commercial Organisations

Defined as:

  1. A company incorporated under the Companies Act 2016 and carries on a business in Malaysia or elsewhere;

  2. A company wherever incorporated and carries on a business or part thereof in Malaysia;

  3. A partnership under the Partnership Act 1961 and carries on a business in Malaysia or elsewhere;

  4. A limited liability partnership under the Limited Liability Partnership Act 2019 and carries on a business in Malaysia or elsewhere;

  5. A partnership wherever formed and carries on a business or part thereof in Malaysia.

Persons Associated with Commercial Organisations

Defined as:

  1. A director, partner or an employee of the CO;

  2. A person who performs services for or on behalf of the CO.

Adequate Procedures as Defence

To raise defense, a CO needs to show that it has implemented adequate procedures to prevent persons associated with the CO from committing corruption in the normal course of business.

A CO, at the time of the commission of the offence, is deemed to have committed the offence, unless the person who is the director, controller, officer, partner or the person concerned in the management of the CO's affairs, proves that:

  • the offence was committed without their consent or connivance; and

  • that they had exercised due diligence to prevent the commission of the offence as they ought to have exercised having regard to the nature of their function in that capacity & to the circumstances.

Pursuant to Section 17A Subsection (5)

The Prime Minister's Department has issued the Guidelines on Adequate Procedures which comprise of 5 principles:

Minding the GAP:

T - Top-level commitment

R - Risk assessment

U - Undertaking control measures

S - Systematic review, monitoring and enforcement

T - Training and communication

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Connecting Your People to Your Business Integrity

with Anti-Bribery & Anti-Corruption Principles

Any organisation can move forward with small incremental changes.  And building for the future in today's increasingly more regulated environment starts with you making insightful decisions TODAY.

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Integrity is Your Business

Mitigate bribery risks by implementing & consistently reinforcing a culture of ethical behaviour & compliance to laws, regulations & policies 

Make transparency a norm

Get industry know-how to  customise compliance strategies that support your ABC initiatives from debuting to piloting

Compliance leadership

While business strategies are structured & managed at the forefront, ABC processes & procedures are operative in the background

Build a future worthy for your leaders to lead

By being visible with your own ethics & compliance program, you differentiate yourself from the competition

Resources

Looking for support to set up adequate procedures to prevent bribery & corruption?

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Insights

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