On
In a first prosecution of its kind since the enactment of the corporate liability offence for corrupt practices, the corporate entity, Pristine, was also charged under Section 17A of the MACC Act.
What is the corporate liability charge for?
Pristine, in association with its then director, Chew, is accused of giving a bribe of
When was the alleged offence committed?
The bribe was allegedly made by Chew between
Are the senior management of Pristine liable under the corporate liability provisions?
If the company is found guilty, the senior management, namely any director, controller, officer or other person who is concerned in the management of its affairs, at the time of the commission of the offence is deemed to have committed the offence (Section 17A(3)) unless they succeed in establishing the "due diligence" defence (see below for further discussion).
Is the company that awarded the subcontract,
No. Section 17A(1) states that a commercial organisation commits an offence if a person associated with the organisation 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:
What are the potential penalties?
If convicted, Pristine will face a fine of not less than 10 times the amount of the bribe or
Chew, if found guilty, may be imprisoned up to 20 years and fined up to five times the bribe amount, i.e.
The senior management at the time of the commission of the offence may be imprisoned up to 20 years.
What are the defences available for a corporate liability offence?
Pristine - must prove that it had in place "adequate procedures" designed to prevent persons associated with the organisation (i.e. Chew while he was a director of the company) from undertaking such corrupt conduct.
Directors, controller, officers and management - each of these individuals must show that the offence was committed without his consent or connivance; and that he exercised due diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his function and circumstances.
What are "adequate procedures"?
Guidelines on Adequate Procedures ("GAP") was issued by the Prime Minister's Department on
The GAP has been formed based on five key principles known as the 'TRUST Principles':
- Top Level Commitment
- Risk Assessment
- Undertake Control Measures
- Systematic Review, Monitoring & Enforcement
- Training & Communication
Comments
This charge is a wake-up call for commercial organisations that have not adopted sufficient measures to mitigate against the risk of corporate liability, and for management who have hitherto been wilfully blind to the commission of gratification by their colleagues.
Additional Notes
It was reported in The Edge Markets on
The alleged scheme was purportedly initiated to defraud Petronas Carigali in relation to multiple maintenance and services contracts between a
On
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