Payment Systems Act 2003 Part V — Investigation, search and seizure

s 42

For the purposes of this Part, "financial institution" means . bank, a finance company, a banking and finance company, i nerchant bank or a discount house licensed under the Banking an Financial Institutions Act 1989, or a prescribed institution as defined under the Development Financial Institutions Act 2002 or any cooperative society registered or deemed to have been registered under the Co-operative Societies Act 1993 [Act 502] or a clearing house recognized under the Securities Industry Act 1983 or a clearing house licensed under the Futures Industry Act 1993. Appointment of investigating officers, their powers, functions and duties

s 43

(1) For the purposes of this Part, the Bank may appoint any officer of the Bank or any person appointed under subsection 4(3) to be an investigating officer. (2) Subject to subsection (3), an investigating officer appointed under subsection (1) shall have all the powers, functions, and duties conferred on an investigating officer under this Act, and where such investigating officer is not an officer of the Bank, he shall, in relation to such powers, functions and duties- (a) be subject to; and (b) enjoy such rights, privileges, protection, immunities and indemnities as may be specified in, the provisions of this Act, the Central Bank of Malaysia Act 1958 or other written law applicable to an officer of the Bank as if he was an officer of the Bank. (3) An investigating officer shall be subject to the direction and control of the Governor, or of such other officer of the Bank as may be authorized by the Governor to act on behalf of the Governor, and of any other investigating officer or officers superior to him in rank, and shall exercise his powers, perform his functions, and discharge his duties referred to in subsection (2) in compliance with such directions, instructions, conditions, restrictions or limitations as the Governor, or an officer of the Bank authorized to act on behalf of the Governor, or an investigating officer superior in rank, may specify orally or in writing, either generally, or in any particular case or circumstance. (4) The Governor, or any officer of the Bank authorized by the Governor to act on behalf of Governor, shall have all the powers, functions and duties of an investigating officer. (5) An investigating officer conducting any examination of any person under this Part shall have the power to administer an oath or affirmation to the person who is being examined. Investigation powers in respect of clearing houses

s 44

Where the Bank has reason to believe that an offence has been committed under this Act, and it is necessary to exercise its powers under this Part in respect of a clearing house recognized under the Securities Industry Act 1983 or a clearing house licensed under the Futures Industry Act 1993, the Bank shall notify the Securities Commission established by the Securities Commission Act 1993. Powers of entry, search and seizure

s 45

(1) Where an investigating officer is satisfied, or has any reason to believe, that any person has committed an offence under this Act, he may, if in his opinion it is reasonably necéssary to do so for the purpose of investigating into such offence- (a) enter any premises and there search for, seize and detain any property, apparatus, equipment, machinery, computer, computer output, data, book or other document; (b) have access to, inspect, make copies of, or take extracts trom, any computer, computer output, book or other document so seized and detained, including access to any program or data held in any computer or have access to, inspect or check the operation of any computer and any associated apparatus or material; (c) take possession of, and remove from the premises, any equipment, apparatus, machinery, property, computer, computer output, data, book or other document so seized and detained; (d) search any person who is in, or on, such premises, and for the purpose of such search detain such person and remove him to such place as may be necessary to facilitate such search, and seize and detain any equipment, apparatus, machinery, property, computer, computer output, data, book or other document found on such person; (e) break open, examine, and search, any article, container or receptacle, including accessing into a computer; or (f) stop, detain or search any conveyance. (2) In exercising his powers under subsection (1), an investigating officer may if it is necessary so to do- (a) break open any outer or inner door of any premises and enter thereinto; (b) forcibly enter such premises and every part thereof; (c) remove by force any obstruction to such entry, search, seizure, detention or removal as he is empowered to effect; or (d) detain all or any person found on any premises, or in any conveyance, searched under subsection (1) until such premises or conveyance has been searched. (3) An investigating officer shall for the purposes of this section be provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of any program or data held in any computer including in a form in which the information contained in a computer can be taken away and in which it is visible and legible. (4) A list of all things seized in the course of a search made under this section and of the premises in which they are respectively found shall be prepared by the investigating officer conducting the search and signed by him. (5) The occupant of the premises entered under subsection (1), or any person on his behalf, shall in every instance be permitted to attend during the search, and I a copy of the list prepared and signed under this section shall be delivered to such occupant or person at his request. (6) An investigating officer shall, unless otherwise ordered by any court— (a) on the close of investigations or any proceedings arising therefrom; or (b) with the prior written consent of any officer of the Bank authorized by the Governor to act on the Governor's behalf for this purpose, or of any investigating officer superior to him in rank, at any time before the close of investigations, release any property, apparatus, equipment, orach docu, cor suized, detained or rent, dada,y bik or any other investigating officer, to such person as he determines to be lawfully entitled to the property, apparatus, equipment, machinery, computer, computer output, data, book or other document if he is satisfied that it is not required for the purpose of any prosecution or proceedings under this Act, or for the purpose of any prosecution under any other written law. (7) A record in writing shall be made by the investigating officer effecting any release of any property, apparatus, equipment, machinery, computer, computer output, data, book or other document under subsection (6) in respect of such release specifying therein in detail the circumstances of, and the reason for, such release. (8) Where the investigating officer is unable to determine the person who is lawfully entitled to the property, equipment, apparatus, machinery, computer, computer output, data, book or other document or where there is more than one claimant to such property, equipment, apparatus, machinery, computer, computer output, data, book or other document, the investigating officer shall report the matter to a Magistrate who shall then deal with the property, apparatus, equipment, machinery, computer, computer output, data, book or other document as provided for in subsections 413(2), (3) and (4), and sections 414, 415 and 416 of the Criminal Procedure Code [Act 593]. Search of person

s 46

(1) An investigating officer may search any person whom he has reason to believe has on his person any property, apparatus, equipment, machinery, computer, computer output, data, book or other document or other article necessary, in his opinion, for the purpose of investigation into any offence under this Act, and for the purpose of such search may detain such person as may be necessary to have the search carried out and may remove him in custody to such place as may be necessary to facilitate such search. (2) An investigating officer making a search of a person under subsection (1) may seize, detain, or take possession of any property, apparatus, equipment, machinery, computer, computer output, data, book or other document, or article, found upon such person for the purpose of the investigation being carried out by him. (3) No female person shall be searched 'under this section or under section 50 except by another female.

Obstruction to exercise of powers by an investigating officer

s 47

No person shall— (a) refuse any investigating officer exercising his powers under section 45 or 46 access to any premises or any part thereof, or fail to submit to the search of his person; (b) assault, obstruct, hinder or delay such investigating officer in effecting any entrance which he is entitled to effect; (c) fail to comply with any lawful demands of any investigating officer in the execution of his duties under section 45 or 46; (d) refuse to give to an investigating officer any information which may reasonably be required of him and which he has it in his power to give; (e) fail to produce to, or conceal or attempt to conceal from, an investigating officer any property, book, other document or article in relation to which the investigating officer has reasonable grounds for suspecting that an offence has been or is being committed under this Act; (f) rescue or endeavour to rescue any thing which has been duly seized; (g) furnish to an investigating officer as true, information which he knows or has reason to believe to be false; or (h) before or after any seizure, break or otherwise destroy any thing to prevent the seizure thereof, or the securing of such thing. Requirement to provide translation

s 48

(1) Where an investigating officer finds, seizes, detains or takes possession of any computer, computer output, data, book or other document, in the exercise of any power under this Part, and such book or other document or any part thereof is in a language other than the national language or the English language, or in any sıgn or code, the investigating officer may, orally or in writing, require the person who had the possession, custody or control of such computer, computer output, data, book or other document, to furnish to the investigating officer a translation in the national . language or the English language of such computer output, data, book or other document within such reasonable period as the investigating officer may specify, having regard to the length of the computer output, data, book or other document, or other circumstances relating to it. (2) No person shall knowingly furnish a translation under subsection (1) which is not an accurate, faithful and true translation, or knowingly make a translation under that subsection which is not accurate, faithful and true. (3) Where the person required to furnish a translation under subsection (1) is not the person who is suspected to have committed the offence under investigation, the Bank shall pay him reasonable fees for the translation. Power to examine persons

s 49

(1) Where an investigating officer suspects any person to have committed an offence under this Act, he may, if in his opinion it is reasonably necessary to do so for the purposes of an investigation into such offence- (a) order any person orally or in writing to attend before him for the purpose of being examined orally by the investigating officer in relation to any matter which may, in the opinion of the investigating officer, assist in the investigation into the offence; (b) order any person orally or in writing to produce before the investigating officer property, apparatus, equipment, machinery, computer, computer output, data, book or other document, or article, or thing which may, in the opinion of the investigating officer, assist in the investigation into the offence; or (c) by written notice require any person to furnish a statement in writing made on oath or affirmation setting out therein all such information which may be required under the written notice, being information which, in the opinion of the investigating officer, would be of assistance in the investigation into the offence. (2) A person to whom an order under paragraph (1)(a) or (b), or a written notice under paragraph (1)(c), has been given shall comply with the terms of such order or written notice, as the case may be, and, in particular- (a) a person to whom an order under paragraph (1)(a) has been given shall attend in accordance with the terms of the order to be examined, and shall continue to so attend from day to day as directed by the investigating officer until the examination is completed, and shall during such examination disclose all information which is within his knowledge, or which is available to him, or which is capable of being obtained by him, in respect of the matter in relation to which he is being examined, whether or not any question is put to him with regard thereto, and where any question is put to him he shall answer the question truthfully and to the best of his knowledge and belief, and shall not refuse to answer any question on the ground that it tends to incriminate him or his spouse; (b) a person to whom an order has been given under paragraph (1)(b) shall not conceal, hide, destroy, alter, remove from or send out of Malaysia, or deal with, expend, or dispose of, any property, apparatus, equipment, machinery, computer, computer output, data, book or other document, article or thing specified in the order, or alter or deface any entry in any such computer output, data, book or other document, or cause such acts to be done, or assist or conspire to do such acts; and (c) a person to whom a notice has been given under paragraph (1)(c) shall, in his statement made on oath or affirmation, furnish and disclose truthfully all information required under the notice which is within his knowledge, or which is available to him, or which is capable of being obtained by him, and shall not fail to furnish or disclose the same on the ground that it tends to incriminate him or his spouse. (3) A person to whom an order or a notice is given under subsection (1) shall comply with such notice or order and with the provisions of subsection (2) in relation thereto, notwithstanding the provisions of any written law, whether enacted before or after the commencement of this Act, or of any oath, undertaking or requirement of secrecy, to the contrary, or of any obligation under any contract, agreement or arrangement, whether express or implied, to the contrary. (4) Where any person discloses any information or produces any property, equipment, apparatus, machinery, computer data, book or other document, article or thing, pursuant to subsections (1) and (2), neither the first-mentioned person, nor any other person on whose behalf or direction or as whose agent or officer the first-mentioned person may be acting, shall, on account of such disclosure or production, be liable to any prosecution for any oftence under or by virtue of any law, or to any proceeding or claim in any form or of any description by any person under or by virtue of any agreement or arrangement, or otherwise. (5) An investigating officer may seize, take possession of and retain for such duration as he deems necessary, any property, apparatus, equipment, machinery, computer, computer output, data, book or other document, or article or thing produced before him in the course of an investigation under subsection (1), or search the person who is being examined by him under paragraph (1)(a), or who is producing anything to him under paragraph (1)(b), for ascertaining whether anything relevant to the investigation is concealed, or is otherwise upon such person. (6) An examination under paragraph (1)(a) shall be reduced into writing by the investigating officer and shall be read to and signed by the person being examined, and where such person refuses to sign the record, the investigating officer shall endorse thereon under his hand the fact of such refusal and the reasons thereof, if any, stated by the person examined. (7) The record of an examination under paragraph (1)(a), or a written statement on oath or affirmation made pursuant to paragraph (1)(c), or any property, apparatus, equipment, machinery, computer, computer output, data, book or other document, or article or thing produced under paragraph (1)(b) or otherwise in the course of an examination under paragraph (1)(a) or under a written statement on oath or affirmation made pursuant to paragraph (1)(c) shall, notwithstanding any written law or rule of law to the contrary, be admissible in evidence in any proceedings in any court— (a) for or in relation to an offence under this Act; (b) for or in relation to any other matter under this Act; or (c) for or in relation to any offence under any other written law, regardless whether such proceedings are against the person who was examined, or who produced the property, apparatus, equipment, machinery, computer, computer output, data, book, other document, article or thing, or who made the written statement on oath or affirmation, or against any other person. specific persons in respect of whom powers of investigation may be exercised

s 50

Without prejudice to the generality of other powers of investigation conferred on an investigating officer under this Part, such powers may be exercised by the investigating officer— (a) against— (i) any past or present business associate; (ii) any person who is or was a relative; (iii) any person who is or was a creditor; (iv) any person who is or was concerned with the control or management, in whole or in part, of the affairs; or (v) any person who has or had an interest in the shares, or otherwise has or had an interest in the property, of the person suspected to have committed an offence under this Act: (b) against any business associate or relative of a person referred to in paragraph (a); or (c) against any body, corporate or unincorporate, in which ny person reterred to in paragraph (a) is a director c fficer or, where such body is à corporation. has a interest in the shares of the corporation. Seizure of movable property in financial institution

s 51

(1) Where the Bank is satisfied on information given by an investigating officer that any movable property, including any monetary instrument or any accretion to it, which is the subject matter of an offence under this Act or evidence in relation to the commission of such offence, is in the possession, custody or control of a financial institution, the Bank may, notwithstanding any other law or rule of law, by order direct the financial institution not to part with, deal in, or otherwise dispose of such property or any part of it until the order is revoked or varied. (2) A financial institution or any agent or officer of a financial institution shall not, on account of complying with an order under subsection (1), be liable to any prosecution under any law or to any proceedings or claim by any person under any law or under any contract, agreement, or arrangement, or otherwise. (3) Any person who fails to comply with an order under subsection (1) commits an offence. (4) In this section, "monetary instrument" includes the domestic currency or any foreign currency, travellers' cheque, personal cheque, bank cheque, money order, investment security or negotiable instrument in bearer form or otherwise in such form that title to it passes upon delivery or upon delivery and endorsement. Dealing with property after seizure to be void

s 52

(1) Where any property has been seized under this Act, and so long as such seizure remains in force, any dealing effected by any person or between.any persons in respect of such property, except any dealing effected under this Act or by virtue of this Act by or on behalf of the Government of Malaysia, or the Government of a State, or a local authority or other statutory authority, shall be null and void, and shall not be registered or otherwise given effect to by any person or authority. (2) For so long as a seizure of any property under this Act remains in force, no action, suit or other proceeding of a civil nature shall be instituted, or if it is pending immediately before such seizure, be maintained or continued in any court or before any other authority in respect of the property which has been so seized, and no attachment, execution or other similar process shall be commenced, or if any such process is pending immediately before such seizure, be maintained or continued, in respect of such property on account of any claim, judgement or decree, regardless whether such claim was made, or such judgement or decree was given, before or after such seizure was effected, except at the instance of the Government of Malaysia or the Government of a State, or at the instance of a local authority or other statutory authority, or except with the prior consent in writing of the Public Prosecutor. Validity of seizure

s 53

Where the seizure of any property has been effected under this Act, the validity of such seizure, or other form of disposal of such property, or of any destruction of the property in accordance vith the provisions of this Act, in consequence of such seizure. shall not be attected by any objection to it relating to the manner in which the seizure was effected, or the place at which it was effected, or the person from whom it was effected, or the person to whom any notice of the seizure was given, or omitted to be given, or any failure to conform to any procedural provision of this Act or of any other written law in effecting the seizure. Assistance to police or other public officer

s 54

The Bank may at its own initiative, or on the request of a public officer- (a) supply to a police officer or any other public officer a copy of any book, computer output, data, or other document seized, detained or taken possession of under section 45 or 46, or of any record of examination under paragraph 49(1)(a), or of any written statement on oath or affirmation made under paragraph 49(1)(c) or of any book or other document produced under paragraph 49(1)(b), or otherwise in the course of any examination under paragraph 49(1)(a), or under any written statement on oath or affirmation made pursuant to paragraph 49(1)(c), and such police officer or other public officer may make such use of such copy of such record, statement, book or other document as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person; or (b) allow a police officer or any other public officer to have access to and inspect any property, apparatus, equipment, machinery, computer, computer output, data, book, other •Act 627 document, article or thing which had been produced before, or seized, detained or taken possession of, by an investigating officer under this Part, and such police or other public officer may make such use of any knowledge gained by such access or inspection as may be necessary or expedient in relation to the exercise of his powers, the performance of his functions, or the discharge of his duties, in respect of any person. Investigating officer deemed to be public servant and public officer

s 55

An investigating officer shall be deemed to be a public servant for the purposes of the Penal Code [Act 574], and to be a public officer for the purposes of the Criminal Procedure Code or any other written law which the Bank may prescribe.