Learning From Experience

Our clients are mainly organisations in the private sector. They include companies in the Property Development, Information Technology and Manufacturing industries.

Before s17A MACC Act:

The individuals involved in the acts of corruption (the recipients) were most definitely prosecuted. Their companies were not prosecuted as there was no indication that the companies knew or benefitted from the corruption. However, the companies who gave the gratification (the givers) definitely had committed acts of corruption and could similarly be prosecuted.

Case 1

Director of company requested for “under-table” payment in order that company will allocate low-cost housing to purchaser.

Case 2

Managing Director accepted furniture sets and watches from contractor in order to procure that his company issued a letter of intent to the contractor for a project.

Case 3

Husband of the CEO took money from a contractor to help the contractor secure a tender. He was working with a vice president of the company to help the contractor secure the tender.

After s17A MACC Act

On the part of the givers, all directors and senior executives can now be prosecuted for the act of corruption regardless whether they knew about it or otherwise. Their only defence is that the companies had put in place adequate procedures to prevent such corruption from happening. Without adequate procedures, they are deemed guilty (i.e. the burden of proof had been reversed).

On the part of the receivers, if it can be shown that any gratification flowed to the company or that the corrupt individuals were acting as agents/servants of the company at the material time, then the companies as well as all directors and senior executives can be prosecuted for corruption. Again, the only available defence is that the company had put in place adequate procedures

Conclusion

Therefore, the scenario before and after the implementation of s.17A MACC Act can be a vast difference.

  • The number of people who can be implicated for corruption has greatly increased to include every director and senior executive of the company (both the givers and recipients).
  • The burden of proof has been reversed. Previously, it was the burden of the prosecution to prove that the director or senior executive was involved in corruption. Currently, the burden has been reversed so that it is for the directors and senior executives to prove that they could not possibly have been involved or known about the corruption and that they have implemented sufficient adequate procedures in their company.