A guide to the laws used against Guan Eng

KINIGUIDE DAP was dealt a major blow on Thursday when Penang chief minister Lim Guan Eng was charged with graft and abuse of power under Section 23 of the Malaysian Anti Corruption Commission Act and Section 165 of the Penal Code.

The first charge claims Lim abused his position when he chaired the Penang planning committee to approve the rezoning of land in Mukim J, Daerah Barat Daya from agricultural to housing, in favour of Magnificent Emblem Sdn Bhd on July 2014.

Magnificent Emblem is 30 percent owned by Phang Li Koon, Lim's landlord and his wife's associate, whom the chief minister claims ultimately did not benefit from the re-zoning as it was rejected by the Penang Island City Council last December.

The second charge concerns the purchase of the bungalow Lim had been renting from Phang, for allegedly below market price in July 2015, which the DAP secretary general maintains was on a willing buyer-willing seller basis.

Lim's supporters claim the charges were trumped up while his detractors say it is a moment of reckoning.

While Malaysiakini cannot go into the specifics of Lim's case pending trial, we take a closer look at the two legal provisions being used to charge Lim to learn what they're all about.

What is Section 23 of the MACC Act 2009?

Section 23(1) states: 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(2) then automatically assumes gratification has taken place if a public official makes a decision where the officer or his relatives or associates have an interest, unless it can be proven otherwise.

Those convicted under this section can be jailed for up to 20 years and fined at least five times the value of the gratification, or fined RM10,000, whichever is higher.

What is Section 165 of the Penal Code?

Section 165 concerns a public servant who obtains or even attempts to get any valuable thing, without or with inadequate consideration, from someone who is involved is any proceeding or business transacted by the public official.

If someone is found guilty under this section, he or she can be jailed up to two years or face a fine or both.

What do the experts say?

Malaysiakini asks lawyers Amer Hamzah Arsyad and Joshua Tay on how these sections will apply in certain situations.

Q: If a public official makes a decision in favour of his associate but if the decision does not ultimately go through or is later aborted, is it an offence?

Amer: It depends on what stage of the transaction (it was at). One will have to look at the facts.

An attempt to commit any offence under the MACC Act is an offence as per Section 28. Anyone who does any act preparatory to or in furtherance of the commission of any offence under this Act, commits an offence under the Act.

Similarly, an attempt to commit an offence under Section 165 of the Penal Code is an offence.

Tay: Yes (it's a crime) if (the public officer) uses his position for it... Section 50(1) of the MACC Act covers attempts (to perform graft)

Note: Section 50(1) of the Act states that in cases under several sections, including Section 23, corruption would have taken place if "any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused" unless proven otherwise.

Q: Is it an offence for a member of a committee to receive gratification from an interested party, even if the public official does not influence the ultimate collective decision made by the committee?

Amer: One needs to look at the evidence and determine the role that the particular (individual) played during the decision making process. A lot of factors have to be considered.

Tay: It is very hard to say yes or no. It is fact sensitive. What was the purpose of the gift?

Q: Is it an offence under Section 165 of the Penal Code if a public officer were to receive a valuable thing, without adequate consideration but did not result in kickbacks?

Amer: The objective of Section 165 is to punish public officers who receives 'gifts' and the gift or gratification must emanate from someone who has some sort of dealing with the public officer.

Whether the giver ultimately receives any benefit or anything in return is not an element of the offence.

Tay: I think the crucial idea is that the gift, discount, or whatever must relate to the person as a public servant. If not, then even the public servant's father would not be able to give him present(s) for Christmas, for example. - Mkini