Mutual Assistance in Criminal Matters Act 2002, Part I — Preliminary (s 1–s 5) — Laws of Malaysia

Short title and commencement

s 1

(1) This Act may be cited as the Mutual Assistance in Criminal Matters Act 2002. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Interpretation

(1) In this Act, unless the context otherwise requires— “Bank” means the Central Bank of Malaysia established by the Central Bank of Malaysia Act 1958 [Act 519]; “material” includes any book, document or other record in any form, and any container or article relating to it; “thing” includes material; “items subject to legal privilege” means— (a) communications between an advocate and solicitor and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between an advocate and solicitor and his client or any person representing his client, or between such an advocate and solicitor or his client or any such representative and any other person, made in connection with, or in contemplation of, judicial proceedings and for the purposes of such proceedings; and (c) items enclosed with or referred to in such communications and made— (i) in connection with the giving of legal advice; or (ii) in connection with or in contemplation of judicial proceedings and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them, but excluding, in any case, any communications or thing held with the intention of furthering a criminal purpose; “prescribed” means prescribed by regulations made under this Act, and a power to prescribe includes the power to make different provisions in the regulations for different persons or classes of persons; “property” means movable or immovable property of every description, whether situated in or outside Malaysia and whether tangible or intangible and includes an interest in any such movable or immovable property; “proceeds of crime” means any property suspected, or found by a court, to be property directly or indirectly derived or realized as a result of the commission of an offence or to represent the value of property and other benefits derived from the commission of an offence; “financial institution” means— (a) an institution licensed under the Islamic Banking Act 1983 [Act 276], the Takaful Act 1984 [Act 312], the Banking and Financial Institutions Act 1989 [Act 372], the Insurance Act 1996 [Act 553] and the Money-Changing Act 1998 [Act 577]; (b) a person licensed under the Securities Industry Act 1983 [Act 280], the Securities Commission Act 1993 [Act 498] and the Futures Industry Act 1993 [Act 499]; or (c) an offshore financial institution; “offshore financial institution” has the meaning as in the Labuan Offshore Financial Services Authority Act 1996 [Act 545]; “serious offence” means— (a) an offence as defined under the Anti-Money Laundering Act 2001 [Act 613]; (b) an offence against the laws of Malaysia where— (i) the maximum penalty for the offence is death; or (ii) the minimum term of imprisonment is not less than one year; or (c) any attempt, abetment or conspiracy to commit any of the offences referred to in paragraph (b); “foreign serious offence” means an offence— (a) against the law of a prescribed foreign State stated in a certificate purporting to be issued by or on behalf of the government of that prescribed foreign State; and (b) that consists of or includes activity which, if it had occurred in Malaysia, would have constituted a serious offence; “Minister” means the Minister charged with the responsibility for legal affairs; “foreign State” means any country or territory outside Malaysia; “prescribed foreign State” means a foreign State declared by the Minister, by an order made under subsection 17(1), as a prescribed foreign State or a foreign State in respect of which the Minister has issued a special direction under section 18, as the case may be; “authorized officer” means— (a) any police officer; (b) any customs officer; (c) any immigration officer; (d) any officer of the Anti-Corruption Agency; and (e) any officer authorized by the Attorney General; “criminal investigation” means an investigation— (a) into a serious offence or a foreign serious offence, as the case may be; or (b) for the purposes of an ancillary criminal matter; “foreign law immunity certificate” means a certificate given, or a declaration made, by a prescribed foreign State or under the law of a prescribed foreign State, certifying or declaring that, under the law of that prescribed foreign State, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required— (a) to answer a specified question; or (b) to produce a specified thing; “order” includes a decree, direction or judgment, or any part of it, howsoever described; “forfeiture order” means an order made in Malaysia for the forfeiture of property in respect of a serious offence; “foreign forfeiture order” means an order made by a court in a prescribed foreign State for the recovery, forfeiture or confiscation of— (a) payments or other rewards received in connection with an offence against the law of that prescribed foreign State that is a foreign serious offence, or the value of such payments or rewards; or (b) property derived or realized, directly or indirectly, from payments or other rewards received in connection with such an offence, or the value of such property, that is made on or after the date of the order under subsection 17(1) declaring a foreign State as a prescribed foreign State comes into force or on or after the date of the special direction given by the Minister in respect of a foreign State under section 18; “criminal matter” means, in respect of a serious offence or a foreign serious offence, as the case may be— (a) a criminal investigation; (b) criminal proceedings; or (c) an ancillary criminal matter; “ancillary criminal matter” means— (a) the restraining of dealing with, or the seizure, forfeiture or confiscation of, property in connection with a serious offence or a foreign serious offence, as the case may be; or (b) the obtaining, enforcement or satisfaction of a forfeiture order or a foreign forfeiture order, as the case may be; “appropriate authority”, in relation to a foreign State, means a person or authority whom the Attorney General is satisfied is authorized under the law of that foreign State— (a) in the case of a request by that foreign State to Malaysia for assistance in a criminal matter, to make the request; or (b) in the case of a request by Malaysia to that foreign State for assistance in a criminal matter, to receive the request; “premises” includes— (a) a structure (whether or not movable or offshore), building, tent, vehicle, vessel, hovercraft or aircraft; (b) a place (whether or not enclosed or built upon); and (c) part of any premises (including premises of a kind referred to in paragraph (a) or (b)); “criminal proceedings” means a trial of a person for a serious offence or a foreign serious offence, as the case may be, and includes any proceeding to determine whether a particular person should be tried for the offence; “process” includes any summons, warrant, order or other document in respect of a criminal matter that is issued, as the case may be— (a) by any court in Malaysia or by any Judge, Sessions Court Judge or Magistrate or by the Registrar or a Deputy Registrar or a Senior Assistant Registrar of a High Court or by a Registrar of a Subordinate Court; or (b) by any court of a foreign State or by any judge, magistrate or officer of such a court; “dealing”, in relation to any property, includes— (a) receiving or acquiring the property; (b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise); (c) disposing of or converting the property; (d) bringing the property into or removing the property from Malaysia; (e) using the property to borrow money, or as security (whether by way of a charge, mortgage or pledge or otherwise); or (f) where a debt is owed to the person holding the property, making a payment to any person in reduction of the amount of the debt. (2) For the purposes of this Act— (a) a reference to a foreign State includes a reference to— (i) a territory of that foreign State; and (ii) a ship or aircraft of, or registered in, that foreign State; and (b) a reference to the law of a foreign State includes a reference to the law in force in any part of that foreign State. (3) For the purposes of this Act, judicial proceedings that are criminal proceedings are— (a) instituted in a prescribed foreign State when a person is produced and charged in court with a foreign serious offence; (b) concluded on the occurrence of any of the following events: (i) the discontinuance of the proceedings; (ii) the acquittal of the defendant; (iii) the quashing of the defendant’s conviction for the offence; (iv) the grant of a pardon in respect of the defendant’s conviction for the offence; (v) the court sentencing or otherwise dealing with the defendant in respect of his conviction for the offence without having made a foreign forfeiture order; (vi) the satisfaction of a foreign forfeiture order made in the proceedings, whether by payment of the amount due under the order, by the defendant serving imprisonment in default, by the recovery of all property liable to be recovered or otherwise.

Object of Act

s 3

The object of this Act is for Malaysia to provide and obtain international assistance in criminal matters, including— (a) providing and obtaining of evidence and things; (b) the making of arrangements for persons to give evidence, or to assist in criminal investigations; (c) the recovery, forfeiture or confiscation of property in respect of a serious offence or a foreign serious offence; (d) the restraining of dealings in property, or the freezing of property, that may be recovered in respect of a serious offence or a foreign serious offence; (e) the execution of requests for search and seizure; (f) the location and identification of witnesses and suspects; (g) the service of process; (h) the identification or tracing of proceeds of crime and property and instrumentalities derived from or used in the commission of a serious offence or a foreign serious offence; (i) the recovery of pecuniary penalties in respect of a serious offence or a foreign serious offence; and (j) the examination of things and premises.

Act does not limit cooperation with international organizations, etc.

s 4

(1) This Act does not prevent the provision or obtaining of international assistance in criminal matters to or from the International Criminal Police Organization (INTERPOL) or any other international organization. (2) This Act does not prevent the provision or obtaining of international assistance in criminal matters to or from any foreign State other than assistance of a kind that may be provided or obtained under this Act. (3) This Act does not prevent the provision or obtaining of international assistance in criminal matters under any other written law.

Act not authority for extradition of person

s 5

This Act does not authorize the extradition, or the arrest or detention with a view to the extradition, of any person.

Mutual Assistance in Criminal Matters Act 2002 Part I — Preliminary

s 1

s 2

s 3

s 4

s 5

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