Written by: Averroes
(1.0) Introduction;
In today’s article we will be
delineating and scrutinising section 18 of the Malaysia Anti-Corruption
Commission Act 2009 (the Act), coupled together with a few case laws as
to interpret and better understand this law at hand.
(2.0) The legislation and case laws
(2.1) The provision;
Section 18 of the Act provides
for the offence that;
“A person commits an offence if he gives to an agent, or being an agent
he uses with intent to deceive his principal, any receipt, account or other
document in respect of which the principal is interested, and which he has
reason to believe contains any statement which is false or erroneous or
defective in any material particular, and is intended to mislead the principal.”
Section 24 of the Act
provides for the punishment that;
Any person who commits an offence under sections 16, 17, 18, 20, 21, 22
and 23 shall on conviction be liable to:
(a) Imprisonment for a term not exceeding 20 years; and
(b) A fine of not less than 5 times of the sum of value of the
gratification which is the subject matter of the offence where such
gratification is capable of being valued or is of a pecuniary nature, or RM10,000,
whichever is the higher
(2.2) Case laws
In the case of Shahidan
bin Bakar v Malaysian Anti Corruption Commission [2016] MLJU 1527, the
appellant was charged at the Sessions Court for fifteen (15) charges for the
offence committed as under section 18 of the Act. Each of the offence was
valued at RM535.00.
The facts were that, he deceived
his principal as an agent (Inspektor Polis), that he made a false document for
claiming travelling allowance in the State of Sabah on behalf of 15 people, at
an amount of RM535.00 on an official trip from Sandakan to Tawau between 4th
to 10th February 2009.
He was the Inspektor Polis at the
Ibu Pejabat Polis Kontinjen Sabah, Kota Kinabalu, being the Pengarah Musik at
cawangan pancaragam IPK Sabah. Documentary evidence shows that the appellant
instructed all the 15 personnel at the cawangan pancaragam to claim for the two
official functions at Sandakan to Tawau, for the purpose of buing air
conditioner for the brass band hall.
Clearly, it is not for travelling
purpose, but to buy that air conditioner. At the same time, the personnel were
instructed to contribute RM80.00 to purchase the said air-conditioner. The 15
witnesses said that they were not involved on the said duty at Sandakan and
Tawau.
Hence, the appellant managed to
gain at an amount of RM8025.00 from the 15 personnel. The appellant was then
punished pursuant to section 24 of the Act. The penalty imposed was that he is
to receive 12 months imprisonment and to pay RM150, 000. In default of the
fine, he is to serve 75 months of imprisonment and it was to run concurrently.
Another case is in Norlela
binti Surip v Public Prosecutor [2019] MLJU 844, whereby the accused
abetted her husband to deceive the Branch Head (General Adminstration),
Management Services Division of the Social Security Organisation (SOSCO), in
respect of an invoice for the sum of RM42,000.00.
That sum of money were to supply
and deliver souvenirs to the headquarters of SOSCO, but the invoice was made
with a document, in respect which her principal was interested contained false
statement in its material particulars. However, the supply of souvenirs was not
carried, even when the purchase order states that the supply of souvenirs was
performed.
Therefore, she committed an
offence under section 18 and punished under section 24 of the Act. The court
reduced her punishment from 2 years to 1 year and a fine of RM210,000. In
default, a 6 months’ imprisonment is affirmed. The court reduced the sentencing
as the former sentencing for the accused would cause longer terrible hardship
for her family.
She has three children who are
undergoing tertiary education and that with both her and her husband
unemployed, there is no opportunity for her to get integrate back into society,
especially that her children’s education are jeopardized. The nature of the
offence was not that grave, it was only of one instance and that she had three
excellent service awards while working there for 28 years at SOSCO. She
tendered her resignation and was remorseful about it.
There are more cases under section
18, but with different reasons as to why they deceived their principal.
In Amir Hassan Ali Usin v. PP [2018] 6 MLJ 421,
the facts indicate that the offence was related to the use of documents,
containing false statements to deceive the principal in respect of the supply
of uniform and sports attire with a contract value of RM446,220.00.
Additionally, in Pendakwa
Raya lwn Mohd Iqbal bin Sabtu dan seorang lagi [2017] MLJU 404, whereby
he endorsed the payment of RM3, 500 for a contract to clean an area which is
conducted by another person, which is actually to deceive his principal. The cleaning
was never even conducted. The purpose of the money for something else was not
mentioned, but that is not a legal requirement. Court adduced that, as long as
the principal was deceived that is all there is to be proven.
(3.0) Conclusion
To conclude and summarise, there
are four elements for the offence of section 18 of the Act to be proven.
This is construed as in Yahya Abdullah v PP [1991] 4 CLJ (Rep) 229
di m/s 231, which are;
(i)
Must be an agent
(ii)
Document contains false statements
(iii)
The agent knows and have the intent deceive his
principal
(iv)
The agent used the false statements to deceive
his principal
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