MARCH 9 — There have been a number of high-profile cases involving the offence under Section 23(1) of the Malaysian Anti-Corruption Commission Act 2009 (the MACC Act).
The most prominent must be the offence in relation to the company called SRC International Sdn Bhd (the SRC cases) where former prime minister Datuk Sri Mohd Najib bin Hj Abdul Razak was charged and convicted on all seven charges. The first charge was under Section 23(1) of the MACC Act.
There the four ingredients of the offence, namely:
(a) that the accused is an officer of a public body;
(b) that the accused had used his position;
(c) for any gratification; and
(d) the gratification is for the accused himself, his relative or associate.
According to the Court of Appeal in Public Prosecutor v Mahiaddin bin Md Yasin [2024], the manner in which the offence was committed is not an ingredient of the offence.
In other words, Section 23(1) of the MACC Act does not require the prosecution to state in each charge whether the accused made any decision or took any action for the gratification.
How the offence was committed relates to particulars of the offence and evidence will be adduced at the trial to show its occurrence.
Therefore, where there is an error or omission on the part of the prosecution to state in the charge or charges against the accused whether the accused made any decision or took any action is not an error in stating the ingredients of the offence.
It is but an error in stating the particulars of the offence.
The Federal Court in the case of Ravindran a/l Ramasamy v Public Prosecutor [2015] had the occasion to explain the distinction between error in stating the ingredients of the offence and error in stating the particulars of the offence.
If it is an error in stating the ingredients of the offence, the charge is defective and not curable under Section 422 of the Criminal Procedure Code (CPC).
Whereas error in stating particulars of the offence is curable under Section 156 and 422 of the CPC.
In Public Prosecutor v Mahiaddin bin Md Yasin, the Court of Appeal noted that each of the four charges which were preferred against the accused stated that the accused was an officer of a public body.
The accused was charged in his capacity as the Prime Minister of Malaysia and President of Parti Pribumi Bersatu Malaysia (PPBM). Therefore, the first ingredient of the offence was stated.
The charges also alleged the accused had used his position. Hence, the second ingredient was also stated.
Next, the charge specifically mentioned the word gratification. Therefore, the third ingredient was also stated.
The fourth ingredient was also satisfied because the charges stated the gratification was for his associate, namely PPBM.
As all the ingredients of an offence under Section 23(1) had been stated, the Court of Appeal was of the view that the charges were clear and unambiguous.
Judge of Court Appeal Hadhariah Syed Ismail, who delivered the judgment of the appellate court, said:
“In our opinion, the particulars contained in each of the four charges were sufficient to give the [accused] notice of the matter with which he was charged. The [accused] was not misled in any manner whatsoever merely because of the lack of particulars.
“As such, there was no necessity on the prosecution to set out the manner or give further particulars as to how the offence was committed.”
Be that as it may, the burden remains with the prosecution to adduce evidence at the trial to show how these offences were committed.
Now, is PPBM an “associate” within the meaning of Section 23(1) of the MACC Act?
Section 3 of the MACC Act defines “associate” to include any organization of which a person is “in charge or in control of, or has a controlling interest in, its business or affairs”.
Given the ordinary meaning of the word “organization” – that is, a group formed for a particular purpose – and society is also a group formed for a particular purpose, “organization” would therefore include a society.
It follows that PPBM, a political society, comes within the definition of “associate” under Section 3 of the MACC Act.
The above explains why the trial against former prime minister Muhyiddin Yassin has started in earnest on Monday (March 9), three years after he was charged in relation to his administration’s Jana Wibawa project.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
