LETTER | Charity or corrupt practice?

LETTER | Charity is the voluntary giving of help, typically in the form of money, to those in need. (Oxford English Dictionary [OED], 2nd 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:

(a) personation (Section 7 of the Act);

(b) treating (Section 8);

(c) undue influence (Section 9); and

(d) bribery (Section 10).

Every person who commits any of the above offences is of corrupt practice and is liable to imprisonment for a term not exceeding two years and to a fine of not less than one thousand ringgit and not more than five thousand ringgit.

The offences are further categorised as sizeable offences within the meaning of the Criminal Procedure Code (CPC) (Section 11)

The offence of treating is of interest. Section 8 of the Act states as follows:

Every person who, corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives or provides or causes to be given or provided, or is accessory to the giving or providing, or pays or engages to pay wholly or in part, the expense of giving or providing any food, drink, refreshment or provision, or any money or ticket or other means or device to enable the procuring of any food, drink, refreshment or provision, to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote at such election or on account of any such person or any other person having voted or refrained from voting or being about to vote or refrain from voting at such election, and every elector or voter who corruptly accepts or takes any such food, drink, or refreshment or provision or any such money or ticket or who adopts such other means or device to enable the procuring of such food, drink, refreshment or provision shall be guilty of the offence of treating.

That’s a host of offences. 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 the 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 proven 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 (as His Royal Highness then was) 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.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.