JANUARY 17 — In Why the alarm over MACC’s proposal for DPA in Malaysia? I wrote that a deferred prosecution agreement (DPA) – that is, an agreement reached between the prosecution and an organisation being prosecuted, under the supervision of a judge – in the UK applies to organisations, never individuals.
The law is in Section 4 of Schedule 17 of the Crime and Courts Act 2013. Section 4, on persons who may enter into a DPA with a prosecutor, states as follows:
(1) [a person whom the prosecutor is considering prosecuting for an offence specified in Part 2] may be a body corporate, a partnership or an unincorporated association, but may not be an individual.
(2) In the case of a DPA between a prosecutor and a partnership—
(a) the DPA must be entered into in the name of the partnership (and not in that of any of the partners);
(b) any money payable under the DPA must be paid out of the funds of the partnership.
(3) In the case of a DPA between a prosecutor and an unincorporated association—
(a) the DPA must be entered into in the name of the association (and not in that of any of its members);
(b) any money payable under the DPA must be paid out of the funds of the association.
The provisions can be read here.
In Singapore, where DPA has also been legislated, DPA cannot similarly apply to an individual.
The law is contained in Section 149D of the Criminal Procedure Code 2010. It reads as follows:
149D Persons who may enter into DPA with Public Prosecutor
(1) A subject may be a body corporate, a limited liability partnership, a partnership or an unincorporated association, but cannot be an individual.
(2) In the case of a DPA between the Public Prosecutor and a partnership —
(a) the DPA must be entered into in the name of the partnership (and not in the name of any of the partners); and
(b) any money payable under the DPA must be paid out of the funds of the partnership.
(3) In the case of a DPA between the Public Prosecutor and an unincorporated association —
(a) the DPA must be entered into in the name of the association (and not in the name of any of its members); and
(b) any money payable under the DPA must be paid out of the funds of the association.
(4) A subject must be represented by an advocate at the time the subject enters into a DPA.
The provisions can be read here.
The provisions in the UK and Singapore are similar – in pari materia, as lawyers would say.
In Malaysia, alarms have been raised: the Malaysian Anti-Corruption Commission (MACC) chief Tan Sri Azam Baki allegedly would like to have DPAs apply to individuals as well.
Azam reportedly said that the DPA mechanism to strengthen the country’s asset recovery framework was at the final stage of review at the Attorney General’s Chambers (AGC). He believed that the legislation to introduce DPAs in the country was at the final stage.
Will the proposed legislation provide for application of DPAs to individuals?
Let’s hold our fire and wait for the proposed legislation to be introduced as a Bill.
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
