KUALA LUMPUR: The perception that only bribe recipients are punished in corruption cases is inaccurate, says Datuk Ahmad Akram Gharib.
The Malaysian Anti-Corruption Commission (MACC) senior deputy director of legal and prosecution division said corruption cases typically involved more than one party, including the giver, recipient, middleman or those who ultimately benefit from the transaction.
Ahmad Akram said the real issue was not whether the law only punished recipients, but whether there was sufficient evidence to enable both parties to be charged and convicted in court.
“Corruption prosecutions must be based on evidence, not perception,” he said in a statement on Friday (July 10).
He said those offering bribes were not immune from action under Malaysian law.
"In September 2023, the Dewan Negara was informed that 240 bribe givers had been charged under the MACC Act 2009 since 2019, comprising 29 individuals under Section 16(b) and 211 under Section 17(b).
"Of that number, 86 were convicted," he said.
More recent figures, he added, also showed that action against bribe givers was not uncommon.
“We recorded 1,689 arrests for giving bribes between 2015 and June 30 last year compared with 4,896 arrests for receiving bribes during the same period.
"Members of the public made up the highest number of arrests for giving bribes, followed by those in the private sector, government-linked companies, civil servants and politicians," he lamented.
Ahmad Akram said the MACC Act 2009 clearly criminalised both the giving and receiving of bribes.
He said offences involving soliciting or receiving gratification were provided for under Sections 16(a) and 17(a), while the act of offering or giving gratification was an offence under Sections 16(b) and 17(b).
He added that the MACC itself listed the giving of gratification as one of the main corruption offences, punishable by up to 20 years’ imprisonment and a fine of no less than five times the value of the bribe or RM10,000, whichever is higher upon conviction.
Ahmad Akram said the scope of action against bribe givers had also been widened through the introduction of corporate liability under Section 17A of the MACC Act 2009, which came into force on June 1, 2020.
"Under the provision, commercial organisations can also be charged if a person associated with them gives, promises or offers gratification to obtain or retain business or business advantages.
“This shows that Malaysia’s legal approach is not focused solely on the recipient, but also extends to the giver, intermediaries, companies and corporate management when there is sufficient evidence,” he said.
However, Ahmad Akram acknowledged that public perception was often shaped by media coverage that tended to focus more on recipients, especially civil servants or political office holders.
He said this had to be understood in the context of the nature of corruption offences and the burden of proof required in criminal proceedings.
He explained that corruption was not a typical crime with clear victims, independent witnesses or easily obtainable documentary evidence.
“Bribery transactions often take place in secret, without third-party witnesses, without official records and sometimes through cash payments or intermediaries,” he said.
He said that both the giver and recipient were usually complicit and benefited from the transaction, making it a crime that was deliberately concealed.
In such cases, Ahmad Akram said prosecutors had to assess whether there was enough evidence to prove the case beyond reasonable doubt.
“If both the giver and recipient are charged at the same time without strong independent evidence, both have the right to defend themselves and remain silent in court.
“If both remain silent, the prosecution may lose its main witnesses, which could result in all offenders escaping conviction because the criminal standard of proof cannot be met,” he said.
He said this was not because the law was weak, but because the available evidence may not meet the threshold required in court.
Ahmad Akram said in some cases, the bribe giver could be the key witness to prove the demand, receipt, purpose of the bribe, conversations, instructions or promises made by the recipient.
Without such testimony, he said, it could be difficult for prosecutors to establish important elements of the case, especially where there were no independent witnesses.
Because of this, he said, the decision on whether a bribe giver should be charged, used as a prosecution witness or dealt with through another approach could not be made automatically.
“It is a prosecutorial discretion exercised on a case-by-case basis, taking into account the role of the giver, the level of involvement, the value of the evidence, public interest and the prospects of securing a conviction,” he said.
Ahmad Akram said not all bribery cases arose in the same circumstances.
He said there were bribe givers who actively offered gratification to obtain projects, licences or other benefits, and such individuals should face stern action if there was sufficient evidence.
At the same time, he said, there were also situations where money was handed over only after a demand was made by an authority, or where the giver later came forward to lodge a report and cooperate with the MACC.
In such situations, he warned that indiscriminately prosecuting every giver could have the opposite effect by discouraging members of the public, small business owners or complainants from reporting corruption out of fear that they themselves would be charged.
“This could weaken enforcement, even though the law also imposes a duty to report offers, demands or acts of bribery,” he said.
Ahmad Akram said the focus on recipients in cases involving civil servants or those holding positions of power also had its own rationale, as they were entrusted with approving licences, permits, contracts, enforcement matters and administrative decisions.
“When that power is abused, the impact is not only on the bribe giver, but on institutional integrity, public confidence and fairness in the economic system,” he said.
Still, he stressed that this should not be interpreted as an exemption for the giver.
“The more accurate principle is that the recipient must be punished for abusing public trust, while the giver, intermediaries and companies must also be punished when evidence shows they knowingly participated in the corrupt transaction,” he said.
To illustrate that bribe givers were indeed prosecuted, Ahmad Akram cited the case of businessman Albert Tei, who was charged with four counts of giving RM176,829.03 in bribes to Datuk Seri Shamsul Iskandar Mohd Akin in connection with approval for a mineral exploration licence in Sabah.
He also referred to the Menara Kuala Lumpur takeover case, in which Datuk Abdul Hamid Shaikh Abdul Razak Shaikh was charged with offering a RM500,000 annual bribe over 15 years to speed up the takeover of the management and administration concession of Menara Kuala Lumpur by Hydroshoppe Sdn Bhd.
“These examples show that where sufficient evidence exists, bribe givers can and will be brought to court,” he said.
Ahmad Akram said it would be wrong to insist that all bribe givers and recipients must automatically be charged simultaneously in every case.
“The real issue is not the absence of laws against givers, but the sufficiency of evidence, the role of the giver in the overall transaction and the prosecution strategy needed to prove the case effectively in court,” he said.
He stressed that the fight against corruption could not focus only on recipients.
“Givers, recipients, middlemen, companies and any party that benefits from a corrupt transaction must face action when evidence is sufficient.
“No one is immune. Whether the person gives, receives, acts as an intermediary or profits through a company, all can be subjected to legal action when the evidence meets the requirements of the law,” he said.
