MOHD ROSLAN BIN ZAKARIA v Pendakwa Raya

Case Significance

Illustrates what amounts to using office or position for gratification under section 23(1) of the MACC Act 2009 in government procurement, the operation of the section 23(2) presumption, and the rejection of a superior's orders and operational necessity as defences.

This High Court appeal at Kuala Terengganu, exercising appellate jurisdiction, arises from the conviction of the appellant on three charges under section 23(1) of the Malaysian Anti-Corruption Commission Act 2009 ("Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009"), using office or position for gratification. The appellant, a public officer, had prepared the procurement paperwork and submitted three quotations in which the consistently lowest quotation came from a company owned by a close relative, securing government procurement work for the family firm. The Sessions Court convicted on all three amended charges and imposed, across them, terms of imprisonment of two, two and three years with fines of RM42,000, RM40,000 and RM90,000 respectively, the custodial terms to run concurrently. On appeal the court examined whether the trial court had erred in finding a prima facie case, focusing on whether the appellant's conduct amounted to "mengambil tindakan" or "mencadangkan" (taking action or recommending) within the meaning of the section, and on the operation of the presumption under section 23(2). It held that both ingredients had been proved on maximum evaluation, that the presumption had been correctly activated, and that the defence, including the contentions of a superior's orders and urgent operational necessity, was not a valid defence in law and failed to rebut the presumption on the balance of probabilities. Stressing the seriousness of a public officer manipulating procurement to benefit family and failing to declare the conflict of interest, the court dismissed the appeal against both conviction and sentence and affirmed the Sessions Court's orders in full ("DIKEKALKAN sepenuhnya"), granting only a stay of the custodial sentence conditional on a notice of appeal being filed. The court also underlined that a public officer's duty to declare a conflict of interest is a central safeguard in the procurement process, and that its deliberate breach in order to favour a family company aggravated rather than mitigated the offence. The judgment is significant for its treatment of what constitutes using office for gratification in a government-procurement setting and for rejecting a superior's orders as a defence.