Chew Ben Ben & Anor

68 [2023] 6 MLRH
v. PP

CHEW BEN BEN & ANOR

v.
PP

High Court Malaya, Shah Alam

Norsharidah Awang J
[Criminal Application No: BA-44-257-09-2022]
23 June 2023

Criminal Procedure: Transfer of cases — Transfer from Sessions Court to High Court
— Applicants charged with offences under ss 16(b)(A) and 17A(1)(a) Malaysian Anti-
Corruption Commission Act 2009 (Act) — Whether threshold requirement of s 417(1)(b)
Criminal Procedure Code, satisfied — Whether learned Sessions Court Judge competent
and capable of dealing with any complexities of law that might arise during course of
trial specifically with regard to the words ‘adequate procedures’ in s 17A(4) of the Act —
Whether High Court’s exercise of its power to transfer, warranted

The applicants were charged in the Sessions Court with the offence under s 17A(1)(a)
of the Malaysian Anti-Corruption Commission Act 2009 (Act) and s 16(b)(A)
of the Act and had applied pursuant to s 417 of the Criminal Procedure Code
(CPC) for the matter to be transferred to the High Court. The application was
premised on the grounds inter alia that some questions of law were likely to
arise specifically with regard to the words ‘adequate procedures’ in s 17A(4)
of the MACC Act; that there were no precedents in Malaysia for the offence
under s 17 of the Act as far as corporate liability was concerned and that the
essential ingredients to prove the commission of the said offence remained in
doubt; that there was an uncertain burden of proof upon the defence to prove
that the commercial organisation had in place, adequate procedures to prevent
corrupt practice; and that the capability of the 1st applicant under s 17A of
the Act was ambiguous if the 2nd applicant was found guilty under a distinct
and separate offence under s 16(b)(B) of the Act. The application was opposed
by the respondent on the basis that the threshold requirement of s 417(1)(b) of
the CPC had not been fulfilled by the applicants in that there was no question
of law of unusual difficulty that was likely to arise and which would require
adjudication by the High Court. The respondent submitted inter alia that the
learned Sessions Court Judge (SCJ) was competent and capable of dealing
with such questions of law that were likely to arise during the trial at the Court
below; that it was not shown that the SCJ was incompetent or incapable of
dealing with any question of law of unusual difficulty.

Held (dismissing the application):

(1) The corporate liability offence under s 17A(1) of the Act was a strict liability
offence. This meant that where a commercial organisation failed to prevent a
person associated with the commercial organisation from giving or offering
gratification to obtain or retain business or an advantage in the conduct of
 Chew Ben Ben & Anor
[2023] 6 MLRH 69
v. PP

business for the commercial organisation, the commercial organisation might

be liable whether or not its top level had actual knowledge of the corrupt acts
of its employees and/or associated persons. (para 25)

(2) The sole defence available to commercial organisations under the Act was
a regulating diligence defence. It was for the commercial organisation to prove
that it had in place ‘adequate procedures’ to prevent persons associated with it
from undertaking such corrupt practices in relation to their business activities.
(paras 30 & 32)

(3) In determining whether ‘adequate procedures’ were undertaken and

implemented by commercial organisations to facilitate the prevention of
corrupt practice in relation to its business activities, the Guidelines on
Adequate Procedures (Guidelines) issued pursuant to s 17A(5) of the Act
might be referred to. The said Guidelines were not intended to be prescriptive
and should be applied practically, in proportion to the scale nature, industry
risk and complexity of the organisation. (paras 27, 31, 33 & 37)

(4) The ‘adequate procedure’ defence was only a defence available for
corporate liability and was a strict liability provision, which required no intent
or knowledge, and the controlling mind of the legal identity need not be
established. (para 38)

(5) The power of transfer of the Court should be exercised only if it appeared
to the Court that such power if not exercised, might result in an unfair or
impartial trial or if it otherwise appeared to the Court expedient in the interest
of justice. (para 41)

(6) On the facts and the learned SCJ’s legal qualification and vast experience,
there was no doubt as to the SCJ’s competency and capability to deal with
such complexities of law that might arise during the course of the trial.
(paras 45 & 46)

(7) The interest of justice in this instance, would be best served if the
matter could be disposed of expeditiously without any delay. The burden
was on the defence in proving the ‘adequate procedures’ under s 17A(4) of
the Act. In this regard, the grounds in s 417(b) of the CPC in support of
their application for transfer of the matter to the High Court, could not be
sustained. (paras 50 & 51)
Case(s) referred to:
Lin v. PP [1986] 1 MLRH 412 (refd)
Oh Keng Seng v. PP [1974] 1 MLRH 63 (refd)
PP v. Dato’ Kee Yong Wee [1987] 1 MLRH 306 (refd)
Riza Shahriz Abdul Aziz v. PP [2019] MLRHU 1631 (refd)
Yong Choo Kiong lwn. PP [2020] 3 MLRH 330 (refd)
 Chew Ben Ben & Anor
70 [2023] 6 MLRH
v. PP

Legislation referred to:

Criminal Procedure Code, ss 177, 417(1)(b), (2)
Malaysian Anti-Corruption Commission Act 2009, ss 16(6)(a), (b)(A), 17A(1)
(a), (4), (5)

Others referred to:

British Law on Corporate Bribery [2015] JFC, p 8

Counsel:
For the applicants: Bernard Francis; Bernard Francis & Associates
For the respondent: Low Chin Hew, (Zende Lim Wai Keong with him); Malaysian
Anti-Corruption Commission

JUDGMENT

Norsharidah Awang J:

Introduction
[1] This motion is filed by the Applicants under s 417 of the Criminal Procedure
Code to seek the Honourable Court’s exercise of its jurisdiction and power to
transfer the Applicants’ Case No BA-62R-20-03/2021 and BA-62R-21-03/2021
from the Sessions Court to the High Court.
[2] The charges preferred against the Applicants in the Sessions Court are as
follows:
BA-62R-20-03/2021:
“Bahawa kamu, sebagai suatu organisasi komersial, di antara 29 Jun 2020
dan 14 Oktober 2020, di No 22-2, Block 4, Kinrara Niaga 3, Jalan BK
5A/2B, Bandar Kinrara, Puchong, di dalam daerah Petaling, di dalam
Negeri Selangor, telah melakukan kesalahan oleh kerana seseorang yang
bersekutu dengan kamu iaitu seorang pengarah kamu bernama Chew
Ben Ben (No. K/P: 570614-08-5083) telah secara rasuah memberikan
kepada Mazrin Ramli (No. K/P: 800410-07-5079) yang merupakan
Ketua Pegawai Operasi Syarikat Deleum Primera Sdn Bhd (No. Syarikat:
963891-W) suatu suapan bagi faedah dirinya, iaitu wang sejumlah
RM321,350.00 (Ringgit Malaysia Tiga Ratus Dua Puluh Satu Ribu
Tiga Ratus Lima Puluh), dengan niat untuk memperoleh perniagaan
bagi kamu iaitu memastikan kamu dianugerahkan dengan subkontrak
bertajuk “Provision of Workboat, Master and Crew and other Associated
Marine Services and Offshore Support Related to the Workboat together
with other Marine Support Spread for Maintenance, Construction
and Modification Services for Petronas Carigali Sdn Bhd (Package C
(Offshore) — Peninsular Malaysia Gas) (“Sub-contract”); Sub-Contract
No: DPSB/PRISTINE/MCM/2019/001”, oleh yang demikian kamu
telah melakukan suatu kesalahan di bawah perenggan 17A(1)(a) Akta
Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta 694] yang boleh
dihukum di bawah subseksyen 17A(2) Akta yang sama.
 Chew Ben Ben & Anor
[2023] 6 MLRH 71
v. PP

BA-62R-21-03/2021:
“Bahawa kamu, di antara 29 Jun 2020 dan 14 Oktober 2020, di No 22-2,
Block 4, Kinrara Niaga 3, Jalan BK 5A/2B, Bandar Kinrara, Puchong,
di dalam daerah Petaling, di dalam Negeri Selangor, telah secara rasuah
memberikan kepada Mazrin Ramli (No. K/P: 800410-07-5079) yang
merupakan Ketua Pegawai Operasi Syarikat Deleum Primera Sdn Bhd
(No. Syarikat: 963891-W) suatu suapan bagi faedah dirinya, iaitu wang
sejumlah RM321,350.00 (Ringgit Malaysia Tiga Ratus Dua Puluh Satu
Ribu Tiga Ratus Lima Puluh), sebagai upah baginya melakukan suatu
perkara yang sebenar, iaitu, memastikan syarikat Pristine Offshore Sdn
Bhd [No. Syarikat: 201401005396 (1081475-A)] dianugerahkan dengan
subkontrak bertajuk “Provision of Workboat, Master and Crew and
other Associated Marine Services and Offshore Support Related to the
Workboat together with other Marine Support Spread for Maintenance,
Construction and Modification Services for Petronas Carigali Sdn Bhd
(Package C (Offshore) — Peninsular Malaysia Gas) (“Sub-Contract”);
Sub-Contract No: DPSB/PRISTINE/MCM/2019/001”, dan oleh yang
demikian kamu telah melakukan suatu kesalahan di bawah perenggan
16(b)(A) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 [Akta
694] yang boleh dihukum di bawah subseksyen 24(1) Akta yang sama.

[3] The criminal motion is filed by the Applicants when the learned Sessions
Court Judge allowed the preliminary objection of the Prosecution pertaining to
the application made by both Applicants under s 177 of the Criminal Procedure
Code.
II. Applicants’ Submission
The Ground Of Transfer Under Section 417 Of The CPC
[4] The reason for this application is that there will be “some question of
law of unusual difficulty that is likely to arise” specifically towards the words
“adequate procedures” contained in s 17A(4) of the Malaysian Anti-Corruption
Commission Act 2009 (“the Act”).
(a) There is no precedent decided by any Court in Malaysia for the offence
under s 17 of the Act as the corporate liability in corruption is concerned.
(b) Uncertain burden of proof lies upon the defence in proving the commercial
organization had in place the adequate procedures to prevent corrupt
practice.
(c) Essential ingredients to prove the commission of the offence under s 17A
of the Act remains in doubt as no precedent in Malaysia.
(d) The capability of Pristine Offshore Sdn Bhd (the first Applicant) under
s 17A of the Act is ambiguous if the second Applicant is found guilty
under a distinct and separate offence under s 16(b)(B) of the same Act.

[5] The Applicants are seeking this Honourable Court to exercise its discretion
under s 417(2) of the CPC to transfer the Applicants’ cases as they have
completed the threshold under s 417(1)(b) of the CPC.
 Chew Ben Ben & Anor
72 [2023] 6 MLRH
v. PP

[6] The Applicants submitted that the Respondent did not deny that these are
the first cases in Malaysia where s 17A of the Act is used against the Applicants
and there has not been any precedent to the effect by any High Court.

[7] Articles 3.5 of the “Guidelines on Adequate Procedures” which was made
under subsection (5) of the s 17A of the Act state as follows:

“If a corruption incident should occur, it would be a matter for the Courts to
decide whether the commercial organisation truly established the necessary
safeguards which should have prevented the offence from happening. When
making a decision, the judiciary is likely to take into account the particular facts
and circumstances of the case, including the existence of an organization’s
policies and procedures and manner of their implementation. However, by
implementation these adequate procedures, companies can gain confidence
that they have established a suitable defence which can be used to protect both
the commercial organisation and top management from the liabilities now
arising from the MACC Amendment Act 2018.”

[8] The guidelines are very vague and ambiguous as the Minister’s guideline
only suggested that if it is a matter that concerns corruption, it is then for the
Court to decide what amounts to “adequate procedure”. The Sessions Court
Judge may not be able to appreciate these issues of drawing the lines as to what
amounts to “adequate procedures” and other circumstances.

[9] The Applicants submitted that it is a rare case in which some questions of
law of unusual difficulty are likely to arise. As per the judgment of KC Vohrah
J quoting P Coomarasamy J in Lin v. PP [1986] 1 MLRH 412:

‘In light of the decisions I have referred to, for the provision of s 184(1)(b) to
be successfully invoked today the case must be extraordinarily rare one and I
find it extremely difficult to think for one.’

[10] The clarity that the High Court would give in the decision-making process
will stand as a guideline to the Sessions Court. The Applicants pray that this
application be allowed.

III. Respondent’s Submission

[11] The power to transfer the case from the lower Court to the High Court
is justifiable if the threshold of s 417(1)(b) CPC is satisfied by the Applicants.

[12] The Applicants fail to satisfy the threshold as there is no question of law
of unusual difficulty that is likely to arise that requires adjudication of the High
Court.

[13] The learned Sessions Court Judge is competent and capable to deal with
such questions of law which might likely arise during the course of trial at the
lower Court. After all, the Respondent has no qualms with the competency and
capability of the learned Sessions Court Judge given the legal qualification and
 Chew Ben Ben & Anor
[2023] 6 MLRH 73
v. PP

vast experience who is sitting as the sole and exemplary Judge of the Special
Corruption Court at Selangor since 2011 and also serving as the presiding
Judge at the Sessions Court for eight years.

[14] The Respondent also submitted that the learned Sessions Court Judge is
the right person to hear this matter given the 19 years of tenure as the trial Judge
at the Sessions Court. Also her competency, capability and professionalism are
required for the adjudication on corruption matters.

[15] None of the affidavits of the Applicants’ criminal motion shows that the
learned Sessions Court Judge is incompetent or incapable to deal with any
question of law of unusual difficulty.

[16] The purported questions of law of unusual difficulty such as no precedent

of s 17A of the said Act prior to the instant cases and the uncertain burden of
proof lie upon the defence in proving the adequate procedures.

[17] Be it the balance of probability or otherwise for the burden of proof lies
upon the defence in proving the adequate procedures by virtue of s 17A(4) of
the Act, the legal issue would be addressed effectively during the course of the
trial at the Sessions Court.

[18] The trial at the High Court is less economical and unavoidable delay is
expected as if the transfer application is allowed by the High Court, the parties
will have to go through a new registration routing system to enable both cases
to be registered at the High Court whereas trial date will be fixed shortly by the
Sessions Court Judge.

[19] It is for the High Court to oversee that s 417(1)(b) of the CPC has been
complied with before exercising its discretion in transferring the case from
the lower Court to the higher tribunal should the condition precedent of the
impugned seek on is being satisfied.

IV. Findings

[20] The issue before this Court was the interpretation of the words “adequate
procedure” contained in s 17A(4) of the Act.

[21] Whether the four grounds raised by the Applicants are within the purview
of s 417(1)(b) of the CPC. In other words if the threshold is being satisfied by
the Applicants.

[22] Section 417 gives the High Court wide powers to transfer cases from one
subordinate Court to another of Higher or lower jurisdictions or of the same
status of the High Court.

[23] These are envisaged as lateral transfer or vertical transfer. In the case of
vertical transfer refers to transfer from one Court to a Court of higher status.
 Chew Ben Ben & Anor
74 [2023] 6 MLRH
v. PP

[24] Section 17A of the Act provides as follows:

“(1) A commercial organization commits an offence if a person associated

with the commercial organization corruptly gives, agrees to give, promises
or offers to any person any gratification whether for the benefit of that
person or another person with intent:

(a) to obtain or retain business for the commercial organization; or

(b) to obtain or retain an advantage in the conduct of business for the

commercial organization.

(3) Where an offence is committed by a commercial organization, a person:

(a) who is its director, controller, officer or partner; or

(b) who is concerned in the management of its affairs, at the time of the
commission of the offence, is deemed to have committed that offence
unless that person proves that the offence was committed without
his consent or connivance and that he exercised due diligence to
prevent the commission of the offence as he ought to have exercised,
having regard to the nature of his function in that capacity and to the
circumstances.

(4) If a commercial organization is charged for the offence referred to in

subsection (1), it is a defense for the commercial organization to prove that
the commercial organization had in place adequate procedures to prevent
persons associated with the commercial organization from undertaking
such conduct.

(5) The Minister shall issue guidelines relating to the procedures mentioned
in subsection (4).

(6) For the purposes of this section, a person is associated with a commercial
organization if he is a director, partner or an employee of the commercial
organization or he is a person who performs services for or on behalf of
the commercial organization.”

[25] The corporate liability offence under s 17A(1) of the Act is a strict liability
offence. This means that where a commercial organisation fails to prevent a
person associated with the commercial organisation from giving or offering
gratification to obtain or retain business or an advantage in the conduct of
business for the commercial organisation, the commercial organisation may be
liable whether or not its top level had actual knowledge of the corrupt acts of
its employees and/or associated persons.

[26] The sole defence available to commercial organisations under Malaysian

Anti-Corruption Commission Act 2009 is for the commercial organisation to
prove that the commercial organisation had in place “adequate procedures” to
prevent persons associated with the commercial organisation from undertaking
such conduct (see s 17A(4) of the Act).
 Chew Ben Ben & Anor
[2023] 6 MLRH 75
v. PP

[27] The Minister has issued the Guideline on Adequate Procedures pursuant
to s 17A(5) of the Act to assist the commercial organisation in undertaking the
adequate procedures that should be implemented.

[28] The burden of proof is on the commercial organisation to prove that

the necessary procedures were in place to facilitate the prevention of corrupt
practices in relation to its business activities once activities are established
under s 17A(1) of the Act.

[29] The Guidelines on Adequate Procedures expressly stated that there is no

one size that fits all and may leave room for interpretation as to what measures
are required of commercial organisations.

What Amounts To “Adequate Procedure”

[30] The sole defence available to commercial organisations under the Act is a
regulating diligence defence. It is for the commercial organisation to prove that
the commercial organisation had in place “adequate procedures” to prevent
persons associated with the commercial organisation from undertaking such
corrupt practices in relation to their business activities.

[31] In determining what constitutes adequate procedures, the Minister has

issued the “Guidelines on Adequate Procedures” pursuant to subsection (5)
of s 17A of the Act. These guidelines procedures are to assist commercial
organisations in undertaking and implementing adequate procedures.

[32] The burden of proof is on the commercial organisation to prove that

the necessary procedures were in place to facilitate the prevention of corrupt
practices in relation to its business activities.

[33] The Guidelines on Adequate Procedures outline five key principles ie, the
T.R.U.S.T principles to which commercial organisations should have regard in
implementing adequate procedures which one for general application by any
commercial organisation.

[34] These principles consist of:

i) Top Level Commitment.

ii) Risks Assessment.

iii) Undertake Control Measures.

iv) Systematic Review, Monitoring and Enforcement.

v) Training and Communication.

[35] The objective of these guidelines is to assist commercial organisations in

understanding what are the adequate procedures that should be implemented
to prevent the occurrence of corrupt practices in relation to their business
activities.
 Chew Ben Ben & Anor
76 [2023] 6 MLRH
v. PP

[36] These guidelines have been formed which may be used as reference points
for any anti-corruption policies, procedures and controls the organisations
may choose to implement towards the goal of having adequate procedures as
required under the above statutory provision.

[37] Paragraph 3.4 of the “Guidelines in Adequate Procedures” stated that the
guideline provided in this document is designed to be principle-based and for
general application by any commercial organisation of any size and industry.
These guidelines are not intended to be prescriptive and it should not be assumed
that “one size fits all”. They should be applied practically, in proportion to the
scale, nature, industry, risk and complexity of the organisation.

[38] Reference to the article of British Law on Corporate Bribery [2015] JFC p
8 of the article stated that “adequate procedure defence” is the only defence
available for corporate liability and it is a strict liability provision, which
requires no intent or knowledge, there is no need to establish the controlling
mind of a legal identity.

[39] What is the burden of proof under s 17A of the Act.

The Article “The UK Bribery Act 2010 content and implications [2012] JFC 19(1),
37-53, paragraph 2 of p 16 states that the burden of proof is on the balance
of probability.”

“Nonetheless, such enterprise would have to assume the burden of proof and
to show on the balance of probabilities that they have adequate preventive
measure in place. The BA, however does not state what constitutes “adequate
measure” but through s 9 it does state that the Secretary of State is required
to provide guidance”.

[40] In PP v. Dato’ Kee Yong Wee [1987] 1 MLRH 306, KC Vohrah J (as he then
was) took the view that a transfer under s 417 of the Code will only be allowed
in cases where questions of law of unusual complexity will arise. The case
must be an extraordinary one. It was extremely difficult to see any question of
law of unusual complexity arising in the course of the trial which the judicial
officers of the Sessions Court could not competently deal with.

[41] The power of transfer should only be exercised if it appears to the Court
that not doing so may result in an unfair or impartial trial or otherwise appears
to the Court expedient in the interest of justice.

[42] In Oh Keng Seng v. PP [1974] 1 MLRH 63, the High Court held that inter
alia that the word ‘unusual’ indicates that the difficulty in relation to the law
must be such that either the question of law is one which is unique or out
of the usual or ordinary, or one which has not been dealt with by any Court
before. The fact that a constitutional point of great importance is expected
to be raised during the trial is not sufficient ground to transfer a case under
s 417(1) para (b).
 Chew Ben Ben & Anor
[2023] 6 MLRH 77
v. PP

[43] In the case of Lin v. PP [1986] 1 MLRH 412 it was held that novelty in
a point of law did not by itself make that point a question of law of unusual
difficulty.
[44] In the case of Yong Choo Kiong lwn. PP [2020] 3 MLRH 330, it was held
as such:
The point or threshold for determining the question of law of unusual difficulty
is likely to arise described in para 417(1)(b) of the CPC was extremely difficult
to meet and rarely met, unless it could be shown that the legal issues that was
expected to be brought up in the Court below was unusually complicated,
after considering all the factors.

[45] The case must be an extraordinarily rare one. There is no question of law
of unusual difficulty that is likely to arise as the learned Sessions Court Judge
is qualified, competent and capable to deal with such complexity of law, should
the matter arise during the cause of the trial.
[46] There is no doubt about the competency and capability of the learned
Sessions Court Judge given the legal qualification and vast experience sitting as
the sole of the Special Corruption Court since 2011. The learned Sessions Court
Judge has been in service for more than 30 years and should have experience
in dealing with difficult cases due to competency for the adjudication on
corruption matters.
[47] As what has been held in the case of Riza Shahriz Abdul Aziz v. PP [2019]
MLRHU 1631:
‘[26] The argument that the case would involve questions of law of unusual
difficulty and that therefore it should be more properly heard at the High
Court can no longer without more be sustained because it is anchored on the
flawed premise that the Sessions Court Judges lack the judicial competency
to deal with these questions. The case must also be an extraordinary one to
justify a transfer under s 417(1)(b) of the CPC.’

[48] There is no averment by both applicants that the Sessions Court Judge
who would be trying the case was in any manner lacking in any of these
judicial qualities. No question of incompetency or incapability on the part
of the Sessions Court Judge to deal with any such issues should the matter
arise in the case against the applicants. It was never mentioned in any of the
affidavits of this motion to show that the learned Sessions Court Judge lacked
such competency.
[49] There is no gainsay that the lack of precedent of s 17A of the Act being
reference for the lower Court that falls within the ambit of s 417(1)(b) of the
CPC.
[50] The interest of justice is best served if the case can be disposed of
expeditiously without any delay. The legal issue on the burden of proof lies upon
the defence in proving the adequate procedures under s 17A(4) of the Act.
 Chew Ben Ben & Anor
78 [2023] 6 MLRH
v. PP

[51] I find that the grounds in s 417(b) of the CPC relied on by both Applicants
to make a case for the transfer of the prosecution case against the Applicants to
the High Court cannot be sustained.

[52] The cases concern charges under s 17A(1)(a) and s 16(6)(b)(A) of the Act.
Even though s 17A(1)(a) is the new section, all corruption cases are regularly
tried at the Sessions Courts. The Sessions Court Judges are also very experienced
to try the case against the Applicants and to deal with other possible complex
issues concerning the interpretation of the “adequate procedures” and also the
threshold of s 417(1)(b) of the CPC.

[53] With that, this Court ordered that the transfer application of both
Applicants under s 417 CPC be dismissed.