Apart from the penalties prescribed in Section 17A of the Malaysian Anti-Corruption Commission (Amendment) Act 2018, what ultimately happens to the fruits of corruption is not clear, if corporate liability is established against the commercial organisation.
If it’s procurement of a contract or a pecuniary benefit, will there be forfeiture in addition to the penalties prescribed in Section 17A of the Act?
If the company staff procured a benefit and that benefit has accrued to the commercial entity, what happens to the benefit derived through corruption?
As a compliance measure, the commercial organisation would have adhered to the “Guidelines on Adequate Procedures” and implemented measures which would serve as defence to the organisation to avoid corruption charges.
Though the guidelines serve as a preventive measure and for general application, and that depending on the nature and size of the organisation the procedures can be adapted, differences in opinion and interpretations will still arise.
Since “adequate procedures” are not defined in Section 17A of the Act and the element for waiving the occasion as not a corrupt practice is also not specified, these guidelines will have to be constantly reviewed when circumstances change or laws are revised.
Adequate procedures may seem adequate between the principal and agent but may not be so in the eye of an enforcement officer though adequacy of procedures has to be determined by the courts.
The list of staff will range from the chairman, directors, executives, partners and agents of the commercial organisation.
From an economic point of view, the factual objective of the incident has to be considered.
Policy decisions and resolutions made within the broad parameters of the boardroom are still a grey area.
If it is not corruption and depending on the gravity of the offence, compounding the offence may also be a provision to be considered.
Sentul, Kuala Lumpur