Property tracking
(1) Where the competent authority or an enforcement agency, as the case may be, has reason to believe that a person is committing, has committed or is about to commit an offence under this Act, the competent authority or enforcement agency, as the case may be, may order—
(a) that any document relevant to identifying, locating or quantifying any property, or identifying or locating any document necessary for the transfer of the property, belonging to, or in the possession or under the control of that person or any other person, be delivered to it; or
(b) any person to produce information on any transaction conducted by or for that person with the first-mentioned person.
(2) Any person who does not comply with an order under subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
Additional powers of competent authority and enforcement agency
(1) For the avoidance of doubt, the functions conferred on the competent authority or an enforcement agency under this Act shall be in addition to its functions under any other written law.
(2) Where an enforcement agency enforcing the law under which a related serious offence is committed gathers evidence with respect to any investigation relating to that offence, such evidence shall be deemed to be evidence gathered in accordance with this Act.
Agent provocateur
(1) Notwithstanding any law or rule of law to the contrary, in any proceedings against any person for an offence under this Act, no agent provocateur, whether he is an officer of an enforcement agency or not, shall be presumed to be unworthy of credit by reason only of his having attempted to commit or to abet, or having abetted or having been engaged in a criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person.
(2) Notwithstanding any law or rule of law to the contrary, a conviction for any offence under this Act solely on the uncorroborated evidence of any agent provocateur shall not be illegal and no such conviction shall be set aside merely because the court which tried the case has failed to refer in the grounds of its judgment to the need to warn itself against the danger of convicting on such evidence.
Standard of proof
(1) Any question of fact to be decided by a court in proceedings under this Act shall be decided on the balance of probabilities.
(2) Subsection (1) shall not apply in relation to any question of fact that is for the prosecution to prove in any proceedings for an offence under this Act or any subsidiary legislation under it.
Admissibility of documentary evidence
Where the Public Prosecutor or any enforcement agency has obtained any document or other evidence in exercise of his powers under this Act or by virtue of this Act, such document or copy of the document or other evidence, as the case may be, shall be admissible in evidence in any proceedings under this Act, notwithstanding anything to the contrary in any written law.
Admissibility of statements by accused persons
(1) In any trial or inquiry by a court into an offence under this Act, any statement, whether the statement amounts to a confession or not or is oral or in writing, made at any time, whether before or after the person is charged and whether in the course of an investigation or not and whether or not wholly or partly in answer to questions, by an accused person to or in the hearing of an officer of any enforcement agency, whether or not interpreted to him by any other officer of such enforcement agency or any other person, whether concerned or not in the arrest of that person, shall, notwithstanding any law or rule of law to the contrary, be admissible at his trial in evidence and, if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit.
(2) No statement made under subsection (1) shall be admissible or used as provided for in that subsection if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the person, proceeding from a person in the enforcement agency and sufficient in the opinion of the court to give that person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
(3) Where any person is arrested or is informed that he may be prosecuted for any offence under this Act, he shall be served with a notice in writing, which shall be explained to him, to the following effect:
“You have been arrested/informed that you may be prosecuted for .... (the possible offence under this Act). Do you wish to
say anything? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have an adverse effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.”.
(4) Notwithstanding subsection (3), a statement by any person accused of any offence under this Act made before there is time to serve a notice under that subsection shall not be rendered inadmissible in evidence merely by reason of no such notice having been served on him if such notice has been served on him as soon as is reasonably possible after the statement is made.
(5) No statement made by an accused person in answer to a written notice served on him pursuant to subsection (3) shall be construed as a statement caused by any inducement, threat or promise as is described in subsection (2), if it is otherwise voluntary.
(6) Where in any criminal proceedings against a person for an offence under this Act, evidence is given that the accused, on being informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so informed, the court, in determining whether the prosecution has made out a prima facie case against the accused and in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
(7) Nothing in subsection (6) shall in any criminal proceedings—
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence of it would be admissible apart from that subsection; or
(b) be taken to preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection.
Admissibility of statements and documents of persons who are dead or cannot be traced, etc.
Notwithstanding any written law to the contrary, in any proceedings against any person for an offence under this Act—
(a) any statement made by any person to an officer of any enforcement agency in the course of an investigation under this Act; and
(b) any document, or copy of any document, seized from any person by an officer of any enforcement agency in exercise of his powers under this Act,
shall be admissible in evidence in any proceedings under this Act before any court, where the person who made the statement or the document or the copy of the document is dead, or cannot be traced or found, or has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which appears to the court unreasonable.
Admissibility of translation of documents
(1) Where any document which is to be used in any proceedings against any person for an offence under this Act is in a language other than the national language or English language, a translation of such document into the national language or English language shall be admissible in evidence where the translation is accompanied by a certificate of the person who translated the document setting out that it is an accurate, faithful and true translation and the translation had been done by such person at the instance of the Public Prosecutor or an officer of any enforcement agency.
(2) Subsection (1) shall apply to a document which is translated, regardless whether the document was made in or outside Malaysia, or whether the translation was done in or outside Malaysia, or whether possession of such document was obtained by the Public Prosecutor or an officer of any enforcement agency in or outside Malaysia.
Evidence of corresponding law or foreign law
(1) A document purporting to be issued by or on behalf of the government of a foreign State and purporting to state the terms of—
(a) a corresponding law in force in that foreign State; or
(b) a law in relation to a foreign serious offence in force in that foreign State,
shall be admissible in evidence for the purpose of proving the matters referred to in subsection (2) in any proceedings under this Act on its production by the Attorney-General or by any person duly authorised by him in writing.
(2) A document shall be sufficient evidence—
(a) if issued by or on behalf of the government of the foreign State stated in the document;
(b) that the terms of the corresponding law or the law of the foreign State are as stated in the document; and
(c) that any fact stated in the document as constituting an offence under that law does constitute such offence.
Proof of conviction and acquittal
(1) For the purposes of any proceedings under this Act, the fact that a person has been convicted or acquitted of an offence by or before any court in Malaysia or by a foreign court shall be admissible in evidence for the purpose of proving, where relevant to any issue in the proceedings, that he committed or did not commit that offence, whether or not he is a party to the proceedings, and where he was convicted whether he was so convicted upon plea of guilt or otherwise.
(2) The court shall accept the conviction referred to in subsection
(1) as conclusive unless—
(a) it is subject to review or appeal that has not yet been determined;
(b) it has been quashed or set aside; or
(c) the court is of the view that it is contrary to the interests of justice or the public interest to accept the conviction as conclusive.
(3) A person proved to have been convicted of an offence under this section shall be taken to have committed the act and to have possessed the state of mind, if any, which at law constitute that offence.
(4) Any conviction or acquittal admissible under this section may be proved—
(a) in the case of a conviction or acquittal before a court in Malaysia, by a certificate of conviction or acquittal, signed by the Registrar of that court; or
(b) in the case of a conviction or acquittal before a foreign court, by a certificate or certified official record of proceedings issued by that foreign court and duly authenticated by the official seal of a Minister of that foreign State,
giving the substance and effect of the charge and of the conviction or acquittal.
Indemnity
No action, suit, prosecution or other proceedings shall lie or be brought, instituted, or maintained in any court or before any other authority against—
(a) the competent authority or the relevant enforcement agency;
(b) any director or officer of the competent authority or the relevant enforcement agency, either personally or in his official capacity; or
(c) any person lawfully acting in compliance with any direction, instruction or order of a director or officer of the competent authority or the relevant enforcement agency,
for or on account of, or in respect of, any act done or statement made or omitted to be done or made, or purporting to be done or made or omitted to be done or made, in pursuance of or in execution
of, or intended pursuance of or execution of, this Act or any order in writing, direction, instruction or other thing issued under this Act if such act or statement was done or made, or was omitted to be done or made, in good faith.
Service of notices
A letter containing a notice or other document to be served by an enforcement agency under this Act shall be deemed to be addressed to the proper place if it is addressed to the last known address of the addressee.
Preservation of secrecy
(1) Except for the purpose of the performance of his duties or the exercise of his functions under this Act or when lawfully required to do so by any court or under the provisions of any written law, no person shall disclose any information or matter which has been obtained by him in the performance of his duties or the exercise of his functions under this Act.
(2) No person who has any information or matter which to his knowledge has been disclosed in contravention of subsection (1) shall disclose that information or matter to any other person.
(3) Any person who contravenes subsection (1) or (2) commits an offence and shall be liable on conviction to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding one year or to both.
Exemptions
The Minister of Finance may, upon the recommendation of the competent authority, if he considers it consistent with the purposes of this Act or in the interest of the public, by order published in the Gazette, exempt a person or class of persons from all or any of the provisions of Part III or IV for such duration and subject to such condition as the Minister may specify.
Modifications
(1) The Minister of Finance may, upon the recommendation of the competent authority who shall consult with the Labuan Offshore Financial Services Authority, by order published in the Gazette, provide that any provisions of this Act or part of the provision, specified in the order, shall not apply in relation to an offshore financial institution or shall apply with such modifications as may be set out in the order.
(2) The terms of the order made under subsection (1) must be consistent with the intent and purpose of this Act.
(3) In this section, “modification” includes amendment, adaptation, alteration, variation, addition, division, substitution or exclusion.
Jurisdiction
(1) Any offence under this Act—
(a) on the high seas on board any ship or on any aircraft registered in Malaysia;
(b) by any citizen or any permanent resident on the high seas on board any ship or on any aircraft; or
(c) by any citizen or any permanent resident in any place outside and beyond the limits of Malaysia,
may be dealt with as if it had been committed at any place within Malaysia.
(2) Notwithstanding anything in this Act, no charge as to any offence shall be inquired into in Malaysia unless a diplomatic officer of Malaysia, if there is one, in the territory in which the offence is alleged to have been committed certifies that, in his opinion, the charge ought to be brought in Malaysia; and where there is no such diplomatic officer, the sanction of the Public Prosecutor shall be required.
(3) Any proceedings taken against any person under this section which would be a bar to subsequent proceedings against that person for the same offence if the offence had been committed in Malaysia
shall be a bar to further proceedings against him under any written law relating to extradition or the surrender of fugitive criminals in force in Malaysia in respect of the same offence in any territory beyond the limits of Malaysia.
(4) For the purposes of this section, the expression “permanent resident” has the meaning assigned by the Courts of Judicature Act 1964 [Act 91].
Power to issue guidelines, etc.
The competent authority may, upon consultation with the relevant supervisory authority, issue to a reporting institution such guidelines, circulars, or notices as are necessary or expedient to give full effect to or for carrying out the provisions of this Act and in particular for the detection or prevention of money laundering.
Regulations
(1) The Minister of Finance or the Minister of Home Affairs, as the case may be, may make such regulations as are necessary or expedient to give full effect to or for carrying out the provisions of this Act.
(2) Without prejudice to the generality of subsection (1), regulations may be made—
(a) to prescribe anything that is required or permitted to be prescribed under this Act;
(b) to provide that any act or omission in contravention of any provision of such regulations shall be an offence;
(c) to provide for the imposition of penalties for such offences which shall not exceed a fine of one million ringgit or imprisonment for a term not exceeding one year or both; and
(d) to provide for the imposition of an additional penalty for a continuing offence which shall not exceed one thousand ringgit for each day that the offence continues after conviction.
Amendment of Schedules
The Minister of Finance may, by order published in the Gazette, amend the First and Second Schedules.
General offence
Any person who contravenes—
(a) any provision of this Act or regulations made under it; or
(b) any specification or requirement made, or any order in writing, direction, instruction, or notice given, or any limit, term, condition or restriction imposed, in the exercise of any power conferred under or pursuant to any provision of this Act or regulations made under it,
commits an offence and shall on conviction, if no penalty is expressly provided for the offence under this Act or the regulations, be liable to a fine not exceeding two hundred and fifty thousand ringgit.
Offence committed by any person acting in an official capacity
(1) Where an offence is committed by a body corporate or an association of persons, 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 such 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.
(2) An individual may be prosecuted for an offence under subsection (1) notwithstanding that the body corporate or association of persons has not been convicted of the offence.
(3) Subsection (1) shall not affect the criminal liability of the body corporate or association of persons for the offence referred to in that subsection.
(4) Any person who would have committed an offence if any act had been done or omitted to be done by him personally commits that offence and shall on conviction be liable to the same penalty if such act had been done or omitted to be done by his agent or officer in the course of that agent’s business or in the course of that officer’s employment, as the case may be, unless he proves that the offence was committed without his knowledge or consent and that he took all reasonable precautions to prevent the doing of, or omission to do, such act.
Offence by an individual
Where a person is liable under this Act to a penalty for any act, omission, neglect or default, he shall be liable to the same penalty for the act, omission, neglect or default of his employee, director, controller, or agent if the act, omission, neglect or default was committed by—
(a) his employee in the course of the employee’s employment;
(b) his director in carrying out the function of a director;
(c) his controller in carrying out the function of a controller; or
(d) his agent when acting on his behalf.
Falsification, concealment and destruction of document, etc.
A person, with intent to deceive, in respect of a document to be produced or submitted under any provision of this Act, who makes or causes to be made a false entry, omits to make, or causes to be omitted, any entry, or alters, abstracts, conceals or destroys, or causes to be altered, abstracted, concealed or destroyed, any entry, forges a document, or makes use of or holds in his possession a false document, purporting to be a valid document, alters any entry made in any document, or issues or uses a document which is false or incorrect, wholly or partially, or misleading commits an offence and on conviction shall be liable to a fine not exceeding
one million ringgit or to a term of imprisonment not exceeding one year or to both, and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
Seizable offence
Every offence punishable under this Act shall be a seizable offence.
Joinder of offences
Notwithstanding anything contained in any other written law, where a person is accused of more than one offence under this Act, he may be charged with and tried at one trial for any number of the offences committed within any length of time.
Power of competent authority to compound offences
(1) The competent authority or relevant enforcement agency, as the case may be, may, with the consent of the Public Prosecutor, compound any offence under this Act or under regulations made under this Act, by accepting from the person reasonably suspected of having committed the offence such amount not exceeding fifty per centum of the amount of the maximum fine for that offence, including the daily fine, if any, in the case of a continuing offence, to which that person would have been liable if he had been convicted of the offence, within such time as may be specified in its written offer.
(2) Any money paid to the competent authority or relevant enforcement agency pursuant to subsection (1) shall be paid into and form part of the Federal Consolidated Fund.
(3) An offer under subsection (1) may be made at any time after the offence has been committed, and where the amount specified in the offer is not paid within the time specified in the offer, or such extended time as the competent authority or relevant enforcement agency may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.
(4) Where an offence has been compounded under subsection
(1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made.
Prosecution
No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
