Corporate Criminal Liability: Some Reflections for Malaysia

Corporate criminal liability is a very important concept given the growth of commercial entities in reach, scope, and impact. A comparative legal doctrinal approach with the United Kingdom is adopted as the method of research. The paper recommends the need to demarcate between regulatory offences (involving standards of conduct in a specialised activity) and non-regulatory conduct (involving deception and fraud). The latter is to be treated with the full measure of the weight of the law to penalise, condemn and act as a deterrent, aside from ensuring that the offender does not reap benefits from the crime. It should not be compoundable and needs to attract the full rigour of criminal censure, as the behaviour is treated as morally repugnant deserving of full public censure and condemnation. The criminal processes, including any plea bargain, should be guided by transparent guidelines subject to court scrutiny. The ability to hold the corporation liable as distinct from the controllers is also discussed. Further recommendations are that the sanctions against corporations need to be diversified under a principle-based approach, as it does not suffer imprisonment or whipping, and can even pass on cost of fines to its customers. The penal provisions should recognise the distinct nature of corporations in the meting out of punishments.