CHARITY is the voluntary giving of help, typically in the form of money, to those in need. (Oxford English Dictionary, second edition)

The act of giving, however, can be a corrupt practice.

The term “corrupt practices” is defined by OED as the perversion of integrity by bribery or favour. It is used in the Election Offences Act 1954, but is not defined.

In Part III (Corrupt Practices) of the Act, the following are corrupt practices:

• personation (section 7);
• treating (section 8);
• undue influence (section 9); and
• bribery (section 10).

Every person who commits any of the above offences has committed corrupt practices, and is liable to imprisonment for a term not exceeding two years and to a fine of not less than RM1,000 and not more than RM5,000. The offences are further categorised as seizable offences within the meaning of section 11 of the criminal procedure code.

The offence of treating is of interest. Section 8 of the Act is a host of offences of treating. The actus reus or offending act is to corruptly give or provide or pay or engage to pay for any food, drink, refreshment, money or ticket to any person for the purpose of corruptly influencing that person to vote, or refrain to vote for, a person.

The giver and the taker commit the offence of treating.

The word “corruptly” is not defined in the Act. However, Shepherd J in Lim Kheng Kooi & Anor v Reg [1957] MLJ 199, a case that was decided under the Prevention of Corruption Ordinance 1950, quoted with approval the definition of the word “corruptly” from the case of Bradford Election Petition 19 LT 723:

“If the money is given after the man has voted, you must show that that was done corruptly. Now, what is the exact meaning of that word ‘corruptly’. It is difficult to tell; but I am satisfied it means a thing done with an evil mind – done with an evil intention; and except there be an evil mind or an evil intention accompanying the act it is not corruptly done.

“And thus when the word ‘corruptly’ is used it means an act done by a man knowing that he is doing what is wrong, and doing so with evil feelings and evil intentions. I think it may be safely said that that is the meaning of the word ‘corruptly’.”

What is being given and taken or received corruptly is purely a question of intention. This in turn is solely a question of fact. Everything falls to be decided by looking at the proved facts and the circumstances of the case. (See the case of Public Prosecutor v Mohamed Ali bin Mohamed Amin & Anor [1979] 2 MLJ 57)

Raja Azlan Shah FJ in Public Prosecutor v Datuk Hj Harun bin Hj Idris (No 2) [1977] 1 MLJ 15 at page 22 defined the meaning of the word “corrupt” as follows:

“‘Corrupt’ means ‘doing an act knowing that the act done is wrong, doing so with evil feelings and evil intentions’; ‘purposely doing an act which the law forbids’.

“’Corrupt’ is a question of intention. If the circumstances show that what a person has done or has omitted to do was moved by an evil intention or a guilty mind, then he is liable…”

To prove “corruptly”, the prosecution must show that the purpose of the gratification was an unlawful one. (See the case of Public Prosecutor v Dato’ Saidin bin Thamby [2012] 3 MLJ 476)

The point is this: the act of giving may be charity in the eyes of one but can be a corrupt practice in the eyes of the law. – January 22, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.