SECTION 23 of the Malaysian Anti-Corruption Commission (MACC) Act (Act 694) provides for the offence of using office or position for gratification.

Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence – section 23 (1).

The two main elements that must be proved are as follows:

(a) the accused was an officer of a public body; and

(b) the accused had used either his office or position for gratification for himself or his relative or associate

Officer of a public body

Under section 3, “officer of a public body” includes a member of the administration, a member of parliament, and any person receiving any remuneration from public funds.

In the case of Public Prosecutor v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808 (Najib case), the learned trial judge ruled that the accused was clearly an officer of a public body on three separate counts. First, as a member of the administration – prime minister and finance minister – secondly as a member of parliament and thirdly as a person receiving remuneration from public funds.

There was overwhelming evidence establishing the fact that the appellant was at the material time the prime minister, finance minister, member of parliament, and was receiving remuneration from public funds.

The defence did not challenge the position and accepted that the accused was an officer of a public body at the material time.

Use of position for gratification

The prosecution must prove that the accused had used his position for gratification whether for himself, his relative or associate.

So, the gratification can be for the accused himself or his relative or his associate.

Under the same section 3, “gratification” includes donation and “associate” includes any organization of which the person is “a person in charge or in control of” the organisation.

Presumption of using office for gratification

For the purpose of proving the second element, the prosecution can rely on the rebuttable statutory presumption under section 23(2), which reads as follows:

For the purposes of subsection (1), an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative or associate, when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.

The presumption of the accused having used his position for gratification will become applicable if the prosecution can show that the accused had made any decision or taken any action in respect of any matter in which the accused had an interest.

In Najib case, the prosecution submitted that it had successfully proved the second element above by clear evidence and by relying on the presumption above.

There are two related aspects to this presumption. The first is whether the accused made the decision(s) or was involved in the decision making which is the subject of the charge and the second is whether the accused had an interest in any such decisions or actions

If the prosecution successfully proves the above two elements, then the presumption applies and the accused is presumed, until the contrary is proved, to have used his office for gratification.

This was decided by the Court of Appeal in the case of Siti Aishah bt Sheikh Abd Kadir v Public Prosecutor [2013] 6 MLJ 86, when construing the statutory presumption under section 15(2) of the Anti-Corruption Act 1997 (ACA), which is predecessor equipollent offence to that under section 23(1) above.

In Najib case on appeal to the Court of Appeal, the appellate court observed that there was not much difference in structure as well as the wording in section 15(2) ACA and section 23(2) except for the addition of the words “whether for himself, his relative or associate”.

One can say that section 23(2) – and section 23(1) as well – is an improvement of section 15(2) ACA.

The principles enunciated in cases on section 15(2) of the Anti-Corruption Act therefore are very much applicable to a charge under section 23(1).

Use of statutory presumption

The use of statutory presumption against an accused has been explained by the Federal Court in the recent case of Abdullah bin Atan v Public Prosecutor and other appeals [2020] 6 MLJ 727 to mean that the prosecution may prove each ingredient of the offence either:

(a) by adducing credible direct evidence of that ingredient;

(b) by drawing inferences of fact – that is, adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(c) by invoking presumptions of law – that is, adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists.

A presumption is not evidence. It is, rather, a rule of evidence stating how a particular fact can be proved. It is nothing more than a rule of law which assists the prosecution in making out a prima facie case.

One can say that presumptions are a special mode of proving facts which must otherwise be proved by evidence. Accordingly, where there is direct evidence to prove the presumed facts, the presumptions do not need to be applied.

It is noteworthy that presumptions of fact and law operate in every legal system. What is required of the prosecution is to adduce credible evidence of the basic facts in order to rely on the statutory presumption.

Therefore, upon proof of the basic facts of the offence under section 23(1), the presumption under section 23(2) will apply and the accused is legally presumed to have used his office or position for gratification.

It then falls on the defence to rebut the presumption on a balance of probabilities.

If the prosecution failed to prove the basic facts, the presumption under section 23(2) will not have any application, which consequently will not only affect the second element of “using office or position for any gratification” in section 23(1) but the whole of the offence under section 23(1) will fall, unless of course if the prosecution adduces direct evidence establishing the fact of the accused using his office or position for gratification. (See the Court of Appeal decision in Najib case)

In short, a case turns on the facts, whether it be for the prosecution or the defence. It is then for the court to decide.

When a case, criminal or civil, is before the court, it is sub judice. The term is Latin for “under judicial consideration”. The Concise Dictionary of Law describes the sub judice rule as “a rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue”.

The rule is part of the law relating to contempt of court. It governs what public statements can be made about ongoing legal proceedings before the courts.

The basis for the rule is that it is the role of the courts to deal with legal issues that are before it. The courts’ role should not be usurped by others making public statements about how these issues should be dealt with.

Statements ought not to prejudice the minds of the public by mentioning circumstances relating to the case.

It is therefore timely that the public be reminded, again, of the sub judice rule. – March 12, 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.