Beyond Bribery: MACC Offences Most Employees Have Never Heard Of

From “upah” for roti canai to a spouse’s company winning a contract, a plain-English guide to the lesser-known offences under the Malaysian Anti-Corruption Commission Act 2009 and the court cases that explain them

Why This Matters to Ordinary Employees

Ask most people what corruption looks like and they will describe a businessman handing an envelope of cash to a government officer. That is certainly corruption, but the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) goes much further. It contains a series of offences that catch everyday workplace conduct, often by people who never thought of themselves as doing anything criminal.

This article explains these offences in plain language, using real Malaysian court cases. It also matters for employers. Since Section 17A came into force, a company can be prosecuted when a person associated with it commits corruption for its benefit, so every employee who misunderstands these rules is a risk to the business as well as to themselves.

Two Rules That Apply to Almost Every Offence

Rule 1: “Gratification” means far more than money

Section 3 of the MACC Act defines gratification very broadly. It includes:

Money, donations, gifts, loans, fees, rewards, property or any financial benefit.
Any office, job, employment contract or agreement to provide services.
Paying off or releasing a loan or other liability.
Any discount, commission, rebate, bonus or percentage.
Not demanding money that is owed.
Any service or favour, including protection from disciplinary, civil or criminal action.
Any offer, undertaking or promise of any of the above, whether conditional or not.

In short, if it has value to the person receiving it, it can be gratification.

Rule 2: Once a benefit changes hands, the law presumes corruption

Under Section 50(1) of the MACC Act, for offences under Sections 16, 17, 18, 20, 21, 22 and 23, once the prosecution proves that gratification was given, received, solicited, offered or promised, the court presumes that it was done corruptly and for the purpose stated in the charge. The accused must then prove otherwise.

The courts have made clear that this is a real burden. In Noordin Sadakatullah & Ors v Public Prosecutor, the Court of Appeal held that once the first two elements of a Section 17(a) offence are proved, the corrupt purpose is presumed. The accused must then show, on the balance of probabilities, that it is more likely than not that the payment was innocent. The Federal Court has also stressed that the presumption must be rebutted by proof, not by an explanation that merely sounds plausible. The High Court applied these principles in Badrul Hisham bin Hashim @ Ishak v Public Prosecutor (No 2) [2020] MLJU 358, where a police corporal who simply denied receiving RM1,500 failed to rebut the presumption.

What this means in practice

If you receive money or a benefit from someone connected to your work, and you cannot give a convincing and truthful explanation, the law will assume the worst. Explanations raised for the first time at trial are likely to be rejected. In several cases discussed below, courts dismissed defences as a bare denial or an afterthought.

At a Glance: The Main MACC Offences

Section	What it covers in simple terms	Maximum penalty
16	Any person soliciting, receiving, giving or offering gratification as an inducement or reward for anyone doing or not doing something	Up to 20 years’ jail and a fine of at least 5 times the gratification or RM10,000, whichever is higher
17(a)	An agent (including any employee) accepting gratification to do or not do something relating to the employer’s affairs	Same as above
17(b)	Giving or offering gratification to someone else’s agent or employee	Same as above
18	Using false or misleading documents, such as fake invoices, to deceive a principal	Same as above
20	Paying someone to withdraw a tender for a public contract, or accepting payment to withdraw	Same as above
21	Bribing an officer of a public body to vote, act, delay, help secure a contract or show favour	Same as above
22	Bribing a foreign public official, or a foreign official accepting a bribe	Same as above
23	A public officer using his position for gratification for himself, a relative or an associate	Same as above
25(1)	Failing to report being given, promised or offered a bribe	Up to RM100,000 fine or 10 years’ jail, or both
25(2)	Failing to report that a bribe was solicited or obtained from you	Up to RM10,000 fine or 2 years’ jail, or both
26	Dealing with, using, holding or concealing property that was the subject of a corruption offence	Up to RM50,000 fine or 7 years’ jail, or both

The MACC Act also makes it an offence to attempt or abet any of these offences. The person faces the same penalty as for the offence attempted or abetted.

Section 16: The General Bribery Offence

Section 16 is the broadest offence. It applies to anyone, public or private, who corruptly solicits, receives, gives or offers gratification as an inducement or reward for someone doing or not doing something in any matter or transaction. The book notes that it does not matter whether the act could actually take place. What matters is that the gratification was sought or given for that purpose.

However, the prosecution must still prove its case properly, including how much was demanded.

Case Spotlight: Public Prosecutor v Chua Beng Seong & Another Case [2016] 5 CLJ 456

Facts: The accused was the managing director of an engineering consultancy appointed by Majlis Perbandaran Pulau Pinang as consultant engineer for infrastructure upgrading works at the Bayan Lepas industrial zone. His firm prepared the tender valuation reports that the council relied on. According to the contractor, the accused offered to help his company win the Package 2 tender by giving him the likely price range, and asked for RM400,000. After the contractor won, problems began at the site. The evidence showed 274 engineering instructions issued while the accused’s firm supervised about 48% of the works, compared with only 3 after the council took over. The amount was later reduced to RM350,000, the contractor reported the matter, and the accused was arrested after picking up a bag of marked notes.

Outcome: The soliciting charge (RM400,000) failed because the evidence was unclear about how much had actually been demanded. The amount mentioned had shifted between RM270,000, RM350,000 and RM400,000. The receiving charge (RM350,000) succeeded. The accused was sentenced to three years’ jail and a fine of RM1.75 million, and the High Court upheld the conviction and sentence.

Lessons: First, private consultants working on public projects are fully exposed. Second, the prosecution did not need to prove that the accused actually helped the contractor win. It was enough that he represented that he could. Third, although a vague demand may fail, taking the money will very likely be caught.

Section 17: Every Employee Is an “Agent”

This is the offence most employees have never considered. Under the MACC Act, an “agent” is any person employed by or acting for another. It expressly includes officers of public bodies, trustees, administrators and executors of estates, and subcontractors. A “principal” includes any employer. In other words, a purchasing executive at a private company, a site supervisor, a building manager or a subcontractor is an agent, and the company or client they work for is their principal.

Offence	Who commits it	What must be proved
Section 17(a): accepting	The agent (employee) who takes the benefit	(1) The person was an agent. (2) He accepted, obtained or agreed or attempted to obtain gratification. (3) It was corruptly obtained as an inducement or reward relating to his principal’s affairs. Once (1) and (2) are proved, (3) is presumed.
Section 17(b): giving	The person who gives or offers the benefit to someone else’s agent	(1) Gratification was paid or given to the agent. (2) The agent was employed at the time. (3) It was corruptly given for the same purposes. Again, once (1) and (2) are proved, (3) is presumed.

A certificate from the employer stating the person’s position is admissible as prima facie proof of employment under Section 55, which makes the first element easy to prove.

“I didn’t have the power to do it” is not a defence

Section 19(1) says that an agent charged under Section 17(a) still commits the offence even if he did not have the power, right or opportunity to do what was promised, did not intend to do it, or the act was not in fact related to his principal’s affairs. Section 19(2) applies the same rule to the giver under Section 17(b).

Case Spotlight: Sundaram Kuppusamy lwn Pendakwa Raya [2016] 1 LNS 417

Facts: The accused was a building manager at the body managing an industrial area in Kuala Lumpur. A contractor had a rubbish disposal contract that was renewed every two years. The contractor said he had paid the accused RM2,000 for each renewal. He reported the matter, and in April 2013 the accused was caught in an MACC trap after taking an envelope containing RM2,000 in marked notes from the seat of the contractor’s lorry.

The defence: The accused argued that he had no power to renew the contract because that decision belonged to the management council. He also said he did not know what was in the envelope.

Outcome: The High Court dismissed his appeal. Although the council made the final decision, it relied on the accused’s reports on the contractor’s performance, and the contractor dealt only with him. Under Section 19, his lack of formal power was no defence. The court also found it telling that he left the office during working hours to meet the contractor at a bus stop and pocketed the envelope within seconds without asking what was inside. His sentence of 12 months’ jail and a RM10,000 fine was upheld.

Lesson: Employees who recommend, report on or influence decisions are just as exposed as those who make them.

“It was just an upah for a small favour” is not a defence either

Case Spotlight: Public Prosecutor v Fadhil Hassan [2017] 1 LNS 2103

Facts: A police lance corporal on lock-up duty in Seberang Perai Utara told a detainee that his father would have to pay RM200 if he wanted roti canai brought into the lock-up. The father reported it, and the officer was arrested at a bus stop near Kepala Batas Hospital with the RM200 in marked notes and a package of roti canai, teh tarik and cigarettes in his car.

The defence: Bringing food to detainees was not part of police duties, so at most it was a disciplinary matter, not corruption. The RM200 was just an “upah” for the favour. The Sessions Court agreed and acquitted him.

Outcome: The High Court reversed the acquittal. It held that the lock-up is strictly regulated by the Lock-Up Rules 1953, and complying with those rules was part of his duties. The officer had also played an active role: he gave the detainee a phone to call home, demanded the RM200 and insisted on meeting to collect it. The court observed that the word “upah” itself closely relates to gratification, and described Section 19(1)(d) as an added weapon for the MACC. He was sentenced to 18 months’ jail and a RM10,000 fine.

Lesson: Taking payment to bend the rules you are supposed to enforce is corruption, even if the favour seems trivial and even if you call it a fee, tip or upah.

Giving is as serious as taking

Case Spotlight: Lee Chin Hon & Anor v Public Prosecutor [2020] MLJU 2573

Facts: In November 2015, a joint Immigration Department and MACC operation inspected a construction site in Kuching and found eight Indonesian workers without valid work permits. The workers were employed by a subcontractor. Inside the workers’ quarters, the main contractor asked whether the matter could be “settled” and raised five fingers to indicate RM5,000. Despite being warned by the officers that bribing public servants was wrong, he took out the cash, his son-in-law helped count it, and the son-in-law handed it to the immigration officer. The whole episode was video recorded.

The defence: They claimed the money was a loan advance for the subcontractor’s workers. The courts rejected this as an afterthought because it had never been put to the prosecution witnesses during the trial.

Outcome: Both men were convicted under Section 17(b) and each sentenced to six months’ jail and a RM25,000 fine. The High Court upheld the sentences, noting that forbearing from action against illegal workers concerned the national interest.

Lessons: Trying to “settle” an enforcement problem on the spot is a serious offence, even when the workers belong to your subcontractor. Family members who help can also be convicted if they share the common intention.

Precise evidence still matters

Like Section 16, the prosecution under Section 17 must prove its facts with care. The book describes Public Prosecutor v Ling Sing Ching, where a person charged with giving RM2,000 to a police officer in Sarawak to avoid action over illegal timber activities was acquitted because of doubts about the exact description of the banknotes received. However, this should not be treated as a loophole. In Lee Chin Hon, the court rejected arguments about the denomination of the notes and the lack of a proper seizure list, because witnesses positively identified the money. Each case turns on its own evidence.

Section 18: Fake Invoices and False Claims

Section 18 makes it an offence to give an agent, or for an agent to use, any receipt, account or other document intended to deceive the principal, where the document contains a materially false, erroneous or defective statement. Typical cases involve invoices for goods never supplied or services never performed. No bribe is needed. This offence will be covered in detail in the next article in this series.

Section 20: Paying a Rival to Withdraw a Tender

Section 20 targets a specific form of tender manipulation for public contracts. It is an offence to offer gratification to someone who has submitted a tender for a contract with a public body so that they will withdraw it, and equally an offence for the bidder to solicit or accept gratification to withdraw.

According to the book, there were no reported Malaysian cases on Section 20 or its earlier equivalents when it was written. However, the book points out that the Malaysia Competition Commission (MyCC) had fined eight companies a total of RM1.5 million in its first bid-rigging decision and announced that it was investigating around 500 companies over suspected bid rigging worth about RM2 billion. The book suggests this may signal future Section 20 charges. Companies bidding for public contracts should treat any approach from a competitor about “stepping aside” as a serious red flag.

Section 21: Bribing Officers of Public Bodies

Section 21 covers bribes offered to, or solicited or accepted by, officers of public bodies for:

Voting or abstaining from voting at a meeting of the public body.
Performing or not performing an official act, or helping to speed up, delay, hinder or prevent it.
Helping to secure or block a vote, contract or advantage for any person.
Showing or not showing favour or disfavour in their official capacity.

It is an offence even if the officer had no power to do it, never intended to do it, did not actually do it, or the matter was not related to the public body’s affairs.

Why is Section 21 needed when Sections 16 and 17 exist? The book explains that some situations may not fit neatly into “doing or forbearing to do” something. In Pendakwa Raya v Affiah Zainal Abidin [2021] 1 LNS 2672, as described in the book, a police officer was convicted on two counts under Section 21(b) for soliciting and accepting RM2,000 to delay the prosecution of a person. The High Court upheld a sentence of one day’s jail and a RM10,000 fine. The book also notes that facilitation payments, meaning small payments to speed up routine government actions, would clearly be caught by Section 21(b).

A bribe can also destroy the deal itself

In Deepak Jaikishan Jaikishan Rewachan v Dato’ Seri Mohd Najib Tun Abdul Razak & Ors [2021] 1 CLJ 860, as described in the book, a former director of a company claimed that the company acquired land because he was willing to bribe the then Minister of Defence. The court held that a land acquisition procured by bribing a public official would be void under Sections 24(a), 24(b) and 24(e) of the Contracts Act 1950, both because the bribe is an offence under Section 21(d) and because it is against public policy. A company cannot rely on a contract it obtained through bribery.

Section 22: Bribing Foreign Officials

Section 22 makes it an offence to give, promise or offer gratification to a foreign public official, or for such an official to solicit or accept it, to influence official decisions, perform or delay official duties, or help secure or prevent a contract. A foreign public official includes anyone holding a legislative, executive, administrative or judicial office in a foreign country, anyone performing a public function for a foreign country (including employees of foreign state bodies and corporations), and anyone authorised to act for a public international organisation.

The book notes that this offence did not exist under the earlier Anti-Corruption Act 1997 or Prevention of Corruption Act 1961. It reflects the fact that corruption now often crosses borders. Malaysian employees involved in overseas sales, projects or licensing should be aware that paying a foreign official is a crime under Malaysian law, not just the law of that country.

Section 23: Using Your Position to Benefit Yourself or Your Family

Section 23 applies to officers of public bodies. It is an offence for such an officer to use his office or position for gratification for himself, a relative or an associate. Unlike other offences, the prosecution does not need to prove that anyone solicited, gave or accepted a bribe. It only needs to prove that the accused was an officer of a public body and used his position for gratification.

Section 23(2) adds a powerful presumption. An officer is presumed to have used his position for gratification if he makes any decision or takes any action in a matter in which he, a relative or an associate has a direct or indirect interest. This is why declaring a conflict and stepping away from the decision is so important.

Case Spotlight: Public Prosecutor v Mohd Shabri Hassan [2018] 1 LNS 1885

Facts: The accused was a lecturer at Politeknik Tuanku Syed Sirajuddin in Perlis. When the polytechnic asked for course proposals, he proposed a mobile phone repair course. He obtained quotations from a mobile phone repair business, which could have run the whole course for about RM23,840. He did not show those quotations to his head of department. Instead, the contract was approved in favour of a firm owned by his wife and brother-in-law, which was paid RM39,006.50. The actual trainer was paid RM11,520 by the accused himself. Bank records showed that RM38,600 was withdrawn from the wife’s firm’s account by the accused days after the payment was deposited. His head of department said he did not know the firm belonged to the accused’s wife and would not have approved it if he had.

The defence: The head of department had told him to use his wife’s company, and he was only following orders. He also argued that the date in the charge was wrong.

Outcome: The High Court held that the exact date was immaterial. It also held that even if the head of department had known about the wife’s company, this would not excuse the accused, because he had taken active and irregular steps to route the contract to her firm. The High Court set aside the Sessions Court’s acquittal, convicted him, and sentenced him to one year’s jail and a fine of RM195,032.50, which is five times the gratification.

Lesson: Steering work to a family member’s business, especially while hiding the relationship or cheaper alternatives, can amount to a serious offence even where no bribe is paid.

Section 23(3) deems Cabinet members to have used their position for gratification if they breach the rules in the Federal Constitution against engaging in businesses connected with their portfolios. Section 23(4) provides a narrow defence for a person who holds office in one public body as the representative of another public body that controls it, acting for that controlling body’s benefit. In the SRC International case, the Court of Appeal held that the former Prime Minister could not rely on this defence.

Section 25: The Duty to Report That Most People Don’t Know About

This is perhaps the most surprising offence for ordinary employees. Section 25 imposes a legal duty to report:

Situation	What you must do	Penalty for failing
Someone gives, promises or offers you a bribe	Report the gift, promise or offer, and the name of the person if known, to the nearest MACC officer or police officer	Fine up to RM100,000 or up to 10 years’ jail, or both
Someone solicits or obtains a bribe from you, or tries to	Report it at the earliest opportunity, with a full and true description and the person’s name if known, to an MACC officer or police officer	Fine up to RM10,000 or up to 2 years’ jail, or both

Simply refusing a bribe is therefore not enough. The law expects you to report it. Several cases in this article began exactly this way. In Sundaram Kuppusamy, Fadhil Hassan and Chua Beng Seong, the people who were asked for money went to the MACC, which then set a trap. The duty to report, and the protection available to those who do, are discussed further in the whistleblowing article in this series.

Section 26: Holding or Hiding the Proceeds

Section 26 makes it an offence for anyone, inside or outside Malaysia, directly or indirectly, to deal with, use, hold, receive or conceal any property that was the subject matter of a corruption offence. This can catch family members, friends or colleagues who agree to keep money, register assets in their names or move funds for someone else. The penalty is a fine of up to RM50,000 or up to seven years’ jail, or both.

Common Beliefs Versus What the Courts Say

Common belief	What the law and cases show
“Corruption laws only apply to government servants.”	Any employee or subcontractor is an “agent” under Section 17. Private consultants were convicted in Chua Beng Seong.
“I can’t be guilty if I had no power to deliver the favour.”	Section 19 removes this defence, as in Sundaram Kuppusamy.
“It was only a small upah or tip.”	The amount does not matter. RM200 led to 18 months’ jail in Fadhil Hassan.
“The prosecution has to prove my intention was corrupt.”	Section 50 presumes a corrupt purpose once the benefit is proved. The accused must rebut it.
“Giving my family member’s company the job isn’t bribery.”	For public officers, it can be an offence under Section 23, as in Mohd Shabri Hassan.
“If I refuse the bribe, I have done my part.”	Section 25 requires you to report it to the MACC or police.
“My boss told me to do it.”	Following instructions did not excuse the accused in Mohd Shabri Hassan.

Practical Checklist for Employees and Employers

Treat any benefit linked to your work with suspicion. If it has value and comes from someone who deals with your employer, assume it could be gratification.
Never accept payment for doing, speeding up or bending your normal duties, however small or however it is described.
Do not try to “settle” enforcement problems with officers on the spot. Deal with them through proper legal channels.
Declare family and personal interests in any supplier, contractor or transaction, and step away from the decision.
Report every bribe offer or demand to the MACC or police, and follow your company’s internal reporting procedure as well.
Keep honest records. Never create or use documents you know to be false, even to “tidy up” a claim.
Do not hold or move money for others if you suspect it is connected to corruption.
Employers should train staff that Sections 17, 19, 23 and 25 apply to them, and build these points into the company’s adequate procedures.

Conclusion

The MACC Act is far broader than the traditional picture of bribery. It reaches private sector employees and subcontractors, it treats small payments and “upah” as seriously as large ones, it presumes corruption once a benefit changes hands, and it punishes silence as well as action. The cases show a consistent pattern: explanations such as “I had no power”, “it was not my duty”, “it was a loan” or “my boss told me to” rarely succeed. The safest course for every employee is simple: do not accept or give anything of value connected to work decisions, declare conflicts, and report any bribe offer or demand straight away.

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