SPRM Cases (Corruption Case Advisory)

1.  Duties and Functions of the Malaysian Anti-Corruption Commission

The Malaysian Anti-Corruption Commission (“MACC”) is responsible for receiving and considering reports concerning offences under the MACC Act and investigating such reports. The MACC may also detect and investigate suspected offences, including any suspected attempt or conspiracy to commit an offence under the Act.

The MACC may examine the practices, systems and procedures of public bodies to facilitate the discovery of offences and to identify practices or procedures which may be conducive to corruption.

The MACC also has a preventive and educational role, including advising and assisting persons on ways to eliminate corruption, recommending changes to public bodies to reduce the likelihood of corruption, and educating the public against corruption.

2. Powers and Immunities of the Malaysian Anti-Corruption Commission

In carrying out its duties and functions, the MACC has all the powers of a police officer appointed under the Police Act 1967. These powers include inspecting licences and vehicles, detaining and searching aircraft, erecting road barriers and requiring persons to remain indoors.

MACC officers are also afforded the same immunities as police officers appointed under the Police Act 1967.

In addition to these powers, MACC officers have further investigative powers under the MACC Act. Reports concerning an offence may be made orally or in writing. Where an MACC officer has reason to suspect that an offence under the MACC Act has been committed, an investigation shall be carried out.

For the purpose of such investigation, the MACC may exercise all powers of investigation available under the MACC Act and the Criminal Procedure Code.

3. Examination of Persons During an MACC Investigation

The Malaysian Anti-Corruption Commission (“MACC”) is vested with extensive powers to examine persons and obtain information for the purpose of investigating offences under the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”).

An investigating MACC officer may require any person to attend before the MACC for oral examination where the officer considers that the person may possess information relevant to the investigation. The MACC may also require the production of books, documents, records, accounts, computerised data or certified copies thereof which, in the officer’s opinion, may assist in the investigation.

The MACC may further require a person to attend for the taking of handwriting or voice samples. It may also issue a written notice requiring a person to provide, within a specified period, a written statement made on oath or affirmation containing information considered relevant to the investigation.

4. Obligation to Answer Questions

A person ordered to attend an oral examination must comply with the terms of the order and may be required to continue attending from day to day until the examination is completed.

During the examination, the person is required to disclose all information within his knowledge and answer questions truthfully and to the best of his knowledge and belief.

Importantly, the MACC Act provides that a person cannot refuse to answer a question merely because the answer may incriminate himself or his spouse.

This is particularly important for a person summoned by the MACC to appreciate before attending an examination, especially where his own conduct may potentially form part of the investigation.

5. Examination Outside Office Hours

The MACC Act does not restrict examinations to normal office hours.

This issue was considered by the Court of Appeal in Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya, Suruhanjaya Pencegah Rasuah Malaysia & Ors v Tan Boon Wah [2010] 3 MLJ 193 (CA).

Tan Boon Wah, a municipal councillor for Kajang, was required to attend the MACC headquarters in Shah Alam to assist in an investigation as a witness. He was subsequently questioned from approximately 9.45 p.m. until 2.53 a.m. the following morning.

The High Court initially accepted the argument that a witness could only be examined during office hours and held that Tan Boon Wah had been unlawfully detained beyond office hours. Damages were consequently awarded for false imprisonment. The High Court decision is reported as Tan Boon Wah v Datuk Seri Ahmad Said Hamdan, Ketua Suruhanjaya, Suruhanjaya Pencegah Rasuah Malaysia & Ors [2010] 2 MLJ 411.

However, the Court of Appeal reversed the High Court’s decision.

The Court of Appeal held that the legislation must be given effect according to its plain wording. Where a person is ordered to attend for examination according to the terms of an MACC order, those terms may include the time at which the person is required to attend, as fixed by the MACC officer.

There is therefore no statutory requirement that an MACC examination must only take place during normal office hours.

The Court of Appeal further interpreted the expression “from day to day” as meaning continuously or without interruption from one 24-hour day to another. Accordingly, the interrogation of Tan Boon Wah outside office hours did not, in those circumstances, amount to false imprisonment.

The Court also emphasised the importance of promptness in the investigation of serious offences under the MACC Act, particularly in circumstances where delay may have implications for the credibility of witnesses.

6. Preservation and Production of Documents

Where the MACC orders a person to produce any book, document, record, account or computerised data, that person comes under specific legal obligations concerning the preservation of those materials.

The person must not conceal, destroy or alter the materials, remove them from Malaysia, dispose of or otherwise deal with them, alter or deface any entry contained in them, or assist or conspire with another person to carry out any such act.

Accordingly, once an MACC production order has been received, particular care should be taken to preserve all potentially relevant physical and electronic records.

7. Written Statements on Oath or Affirmation

Where the MACC requires a person to furnish a written statement made on oath or affirmation, that person is legally required to truthfully disclose all information required by the notice which is within his knowledge or otherwise available to him.

The person cannot refuse to furnish or disclose such information merely on the ground that the information may incriminate himself or his spouse.

Consequences of Non-Compliance

Compliance with a lawful MACC order is not optional.

A failure or refusal to comply with an order made by the MACC in the exercise of its statutory powers, or a refusal to discharge the corresponding legal obligations imposed upon the person, may itself constitute a criminal offence.

As stated in the MACC Act provisions discussed above, non-compliance may expose the person concerned to a fine of up to RM10,000 and imprisonment for up to two years.

Accordingly, where a person receives an MACC notice or is required to attend an MACC examination, it is important to first ascertain the statutory power being exercised, the capacity in which the person is being called, the scope of the information or documents required, and the person’s corresponding legal obligations and potential exposure before responding.

8. MACC’s Powers of Search, Entry and Seizure

The Malaysian Anti-Corruption Commission (“MACC”) is vested with extensive search, entry and seizure powers when investigating offences under the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”).

Where there is cause to suspect that evidence relating to an offence under the MACC Act may be found at a particular place, the MACC may enter the premises and seize and take possession of books, documents, records, accounts, data or other relevant articles. The MACC may also inspect such materials and make copies of them.

Search of Persons, Premises and Vehicles

In the course of a search, MACC officers may search and detain persons found within the premises. Where necessary to facilitate the search, a person may also be removed to another place for the purpose of conducting the search, and articles found on that person may be seized and detained.

The MACC may also break open, examine and search articles, containers or receptacles. Its powers extend to stopping, searching and seizing vehicles where the statutory requirements are satisfied.

Where necessary, MACC officers may use force to gain entry into premises, including breaking open outer or inner doors or windows and forcibly removing any obstruction to the entry, search, seizure or removal.

Persons found within the premises or vehicle may also be detained until the relevant search has been completed.

Documents in Languages Other Than Malay or English

Where books, documents or records seized by the MACC are not in Bahasa Malaysia or English, the MACC may require those materials to be translated.

This may be particularly relevant to companies and individuals whose business records, correspondence or transaction documents are maintained in other languages.

Access to Banking and Financial Information

The MACC’s investigative powers also extend to information maintained by financial institutions.

Where considered necessary for an investigation under the MACC Act, the MACC may inspect and take copies of a financial institution’s banker’s books, accounts, documents, share accounts, purchase accounts, expense accounts and other accounts relating to a person.

The MACC may also inspect the contents of a safe deposit box maintained with a financial institution and request other information relating to the relevant accounts or materials.

Accordingly, banking and financial records may form part of an MACC investigation where the statutory requirements for exercising these powers are satisfied.

Taking Possession of Documents and Financial Records

The MACC is not limited to merely inspecting or copying relevant materials.

It may take possession of documents, records or other materials where it considers that inspection or copying cannot reasonably be carried out without taking possession of them, where there is a risk that the materials may be interfered with or destroyed, or where they may be required as evidence in the prosecution of an offence.

Consequences of Refusing to Cooperate

A person who fails or refuses to disclose information or to produce an account, document or article as lawfully required by the MACC may commit a criminal offence.

Upon conviction, the person may be liable to a fine not exceeding RM10,000, imprisonment for a term not exceeding two years, or both.

Accordingly, where an individual or company is subjected to an MACC search or receives a demand for documents or financial information, it is important to ascertain the legal basis and scope of the MACC’s request, the materials covered by it, and the corresponding legal obligations of the person concerned, while ensuring that potentially relevant evidence is properly preserved.

9. MACC Freezing and Seizure of Property

The Malaysian Anti-Corruption Commission (“MACC”) is vested with extensive powers under the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) to seize and freeze property in the course of an investigation.

These powers may extend to both movable and immovable property, including monies held in financial institutions.

Property Liable to Seizure

During an investigation into an offence under the MACC Act, property may be liable to seizure where there are reasonable grounds to suspect that the property constitutes the subject matter of an offence or represents evidence relating to an offence under the Act.

The power is not confined to cash or bank accounts. It may potentially extend to other forms of movable or immovable property where the statutory requirements are satisfied.

Effect of Seizure

Once property has been seized, any dealing with that property is subject to significant legal restrictions.

Any dealing effected in respect of the seized property shall be void and shall not be registered or otherwise given effect to by any person or authority.

Further, no civil action, suit, attachment, execution or similar proceeding may be commenced, maintained or continued in respect of the seized property without the prior written consent of the Public Prosecutor.

The practical effect is that seizure may significantly restrict an owner’s ability to transfer, dispose of, enforce against or otherwise deal with the affected property while the seizure remains in force.

Freezing of Bank Accounts and Other Property

In addition to seizure, the MACC has powers to prohibit dealings with movable or immovable property.

Where the property consists of monies held with a financial institution, a freezing order may be issued directing the financial institution not to release, transfer, deal with or otherwise dispose of the monies or any part thereof.

Accordingly, a freezing order may effectively prevent the account holder from accessing or dealing with the affected funds while the order remains operative.

Property Held Outside Malaysia

The MACC’s investigative process may also extend to property held or deposited outside Malaysia.

In such circumstances, the assistance of the Public Prosecutor may be sought for an application to the High Court of Malaya for an order prohibiting the person holding the property, or the person with whom it is deposited, from dealing with that property.

This is particularly relevant where an investigation involves assets, funds or financial arrangements spanning more than one jurisdiction.

Practical Implications for Clients

A seizure or freezing order can have immediate consequences for an individual or company, particularly where the affected property comprises operating accounts, business funds or other important assets.

Upon receiving such an order, it is important to ascertain the statutory basis of the order, the property covered, the restrictions imposed, and the available legal avenues for challenging, varying or otherwise dealing with the order.

Particular care should also be taken not to transfer, conceal, dispose of or otherwise deal with property contrary to the terms of a valid seizure or freezing order.