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Malaysia

Anti-Bribery and Corruption Laws in Malaysia

Table of contents
Malaysia
Source of law Malaysian Anti-Corruption Commission Act 2009 (MACC Act) Penal Code 
Offence 

The principal offences are: 

a) corruptly soliciting or receiving or agreeing to receive; or 

b) corruptly giving, promising or offering gratification as an inducement to or a reward for, or otherwise on account of, any person or officer of a public body agreeing to do anything in respect of any matter or transaction, actual or proposed or likely to take place. 

The MACC Act also provides for the offences of: 

a) giving or accepting gratification by an agent; 

b) corruptly procuring withdrawal of a tender; 

c) offering an officer of any public body any gratification as an inducement or a reward for withdrawal of a tender, performing or abstaining from performing certain actions; 

d) offering any gratification to or accepting any gratification by a foreign public official; or 

e) using public office or position for gratification.; or 

f) dealing with, using, holding, receiving or concealing any property which was the subject matter of any offence under the MACC Act 

Corporate offence 

In addition to the above, there is a corporate liability offence where a person associated with a commercial organisation corruptly gives, agrees to give, promises or offers to any person any gratification with intent to obtain or retain business for the commercial organisation, or to obtain or retain an advantage in the conduct of business of the commercial organisation. 

Failure to report offence 

The MACC Act imposes a reporting obligation on any person to whom any gratification is given, promised, or offered and on any person from whom any gratification has been solicited or obtained. 

The Penal Code provides for offences 

a) against a public servant for taking gratification other than legal remuneration, in respect of any official act; 

b) against a person taking gratification in order to influence a public servant, by corrupt or illegal means; 

c) against a person taking gratification for the exercise of personal influence with a public servant; or 

d) against a public servant obtaining any valuable thing, without consideration, from a person concerned in any proceeding or business transacted by such public servant. 

 

Failure to report offence 

Section 13(1) of the Malaysian Criminal Procedure Code imposes a reporting obligation on any person who is aware of the commission of any offence punishable under the Penal Code or any other written law. 

The bribe  
Is there a presumption that the advantage was given/received corruptly? Yes 1 Where it is proved that gratification has been received, accepted etc., it is presumed to have been done so corruptly, unless the contrary is proved.  Yes 2 The presumption under the MACC Act has been extended to offences in the Penal Code.  
Would facilitation payments be caught? Yes Yes 
Would corporate hospitality be caught? Yes Yes 
Is there any de minimis? No  No  
Does the bribe have to be monetary? No No 
Public officials  
Does the offence only apply to bribing public officials? No  No  
Acts performed outside Malaysia  
Can bribery performed outside Malaysia be caught? Yes (if committed by a citizen or permanent resident of Malaysia) Yes (if committed by a citizen or permanent resident of Malaysia) 
Does the act also need to be illegal in the foreign country of performance? No  No 
Who can be liable?  
Malaysian national? Yes Yes 
Malaysian company? Yes Yes 
Malaysian partnership (including limited liability partnership) incorporated? Yes Yes 
Director of Malaysian company Yes 3 Where an offence is committed by a commercial organisation, a person who is its director, controller, officer or partner, or who is concerned in the management of its affairs at the time of the commission of the offence (Top Management), is also deemed to have committed that offence.  Yes 
Malaysian company if the bribe is committed abroad by its foreign subsidiary? No No 
Foreign subsidiary of a Malaysian company if the bribe is committed abroad? No  No  
Foreign national/company/ partnership if bribe is committed in Malaysia? Yes Yes 
Foreign national domiciled or “ordinarily resident” in Malaysia if bribe is committed outside Malaysia? Yes  (provided the foreign national is a permanent resident of Malaysia) No 
Foreign company/partnership if bribe is committed abroad? No No 
Penalties MACC Act Penal Code 
Penalties include: 

A person who commits an offence under the MACC Act is liable to: - 

  1. imprisonment for a term not exceeding 20 years; and/or 
  2. a fine of not less than five times the sum / value of the gratification where it is capable of being valued or is of a pecuniary nature, or MYR10,000 (whichever is higher). 

Where a commercial organisation commits an offence under section 17A of the MACC Act, culpable Top Management and partners are liable to: 

  1. imprisonment for a term not exceeding 20 years; and/or 
  2. a fine of not less than ten times the sum / value of the gratification where it is capable of being valued or is of a pecuniary nature, or MYR1,000,000 (whichever is higher) 

The commercial organisation will be liable to a fine calculated on the same basis. 

  • Imprisonment for a term of up to not exceeding three years 
  • Unlimited or fine or both. 
Defences  
Are there any defences available? Yes 4 Commercial organisations charged for the corporate offence under s17A of the MACC Act will have a defence if it can prove it had in place adequate procedures to prevent persons associated with it from undertaking any corrupt practices. Where an offence is deemed to have been committed by a member of Top Management pursuant to s17A of the MACC Act, he/she will have a defence if he/she can prove that the offence was committed without his/her consent or connivance and that he/she exercised due diligence to prevent the commission of the offence as he/she ought to have exercised, having regard to the nature of his/her function in that capacity and to the circumstances  No