Section 17A(4) is to a large extent modelled upon Section 7(2) of the Bribery Act 2010, which is the primary law for bribery in the United Kingdom. A few English cases may be referred to in order to determine what the English courts opined amounted to ‘adequate procedures’ and when the procedures in place were regarded as inadequate for purposes of a defence.
Section 17A(4) provides that where a commercial organisation is charged under Section 17A of the MACC Act, that commercial organisation may raise a defence if it had in place adequate procedures to prevent such corruption. However, Section 17A is silent as to what amounts to ‘adequate procedures’. The only guidance at the time of writing is the ‘Guidelines on Adequate Procedures Pursuant to Subsection (5) of Section 17A Under the Malaysian Anti-Corruption Commission Act 2009’ issued by the Prime Minister’s Department.
Section 17A of the Malaysian Anti-Corruption Act 2009 was added to address the issue of corporate corruption in Malaysia. With Section 17A coming into force on 1 June 2020, companies and businesses will have to ensure that there are adequate measures to address and prevent corporate corruption.