When can a gift be a corrupt gratification?

I am often asked this question when can a receipt of a gift be considered a corruption offence? well the exact question should be when can a gift be considered as a corrupt gratification? As public officers we will inevitably come across with members of the public who will give us presents or gifts in certain occasions such as your birthdays, their visit to your office etc.

There are rules in the General Order or Perintah Am which govern the receipt of gifts or presents given to public officers.  The General Order or commonly called the GO is the primary regulation that governs the conduct and discipline for public servants in Brunei.  This is a subsidiary legislation under the Public Service Commission Act.  As the name of the Act suggests, the competent authority that governs the enforcement of this Act is the PSC.  The regulation lays out carefully how public officers should handle gifts or presents.  The very basic rule is that you can accept gifts if they are from your relatives or friends.

However I should stress here that you are absolutely prohibited under the Prevention of Corruption Act if the gift is tainted with corrupt intent even if it is from your relative or friends.  Let me give you an example.  Lets say that my father gave me a rolex watch for my birthday.  It is obvious that under the GO I could accept it as my father is considered a "relative".  But if I knew that he wanted to give that Rolex watch hoping that I would stop investigating him for an alleged corrupt offence then I should not accept that gift as it is already tainted with a corrupt intent.  But how would I know that the gift is tainted with corrupt intent as intention is intangible? This is very true and in criminal law we call this the "mens rea" or the state of mind of the person who gives (in the case of the briber) or the person who receives (in the case of the bribee) .  To answer this question you would have to look at the circumstances the gift was given.  As a public officer you would know these circumstances. If you received a Rolex watch from your friend who is bidding for a contract in your department, that is one circumstance that the gift is tainted and you should not accept the gift.

If you received gifts from members of the public who have official dealing with you, even if they are your friends, then you must tread on this carefully as it is easier to see that the giving of these gifts as tainted.  This is because the members of the public who give you these gifts are expecting that their dealings with you can be "greased".  This is where the acceptance of the gifts can make you run foul of the law.

Section 165 of the penal code even prohibits you as a public servant from receiving anything of value from members of the public who have official dealings with you without any consideration or the consideration of which you knew is inadequate.  What does this mean? well to put this simply, if you were owed $500 from a friend who happened to have official dealing with you, the repayment of that debt to you would be an adequate consideration. Hence no offence is committed. But if the same $500 was given to you for approving a licence that your friend applied to your office even if you would have approved the licence with or without the $500, you would commit an offence under section 165 of the Penal Code.