Asset Recovery : The
Malaysian Anti-Corruption
Commission Efforts
Presentation By :
SITI ZAKIAH BINTI CHE MAN
Senior Assistant Commissioner
PRESENTATION
Malaysian Statutes
Forfeiture Of Properties Under MACC Act
2009
Forfeiture Of Properties Under
AMLATFPUAA 2001
Forfeiture Of Properties Under MACMA
2002
Asset Recovery Strategies
International Cooperation
Malaysian Statutes
Malaysian Anti-Corruption Commission
Act 2009, replacing the Anti-Corruption
Act 1997 (MACC Act 2009)
Anti-Money Laundering, Anti-Terrorism
Financing And Proceeds of Unlawful
Activities Act 2001(AMLATFPUAA)
Mutual Assistance In Criminal Matters
Act 2002 (MACMA)
Forfeiture under MACC Act
2009 and AMLATFPUAA 2001
MACC Act 2009 and AMLATFPUAA
2001
provides
for the seizure and forfeiture of property
derived or obtained from any act constituting an
offence under the MACC Act 2009 and AMLATFPUAA
2001 or any act, activity or conduct which could result
in or lead to the commission of such an offence as
well as seizure and forfeiture or other illegal property;
Section 36 MACC Act 2009 and Section
49
AMLATFPUAA 2001 also provide a provision for
Declaration of Asset
Objective of MACC Act 2009
and AMLATFPUAA 2001
1.To punish offenders dealing with or using
property in relation to acts which constitute
an offence under MACC Act 2009 and
AMLATFPUAA 2001;
2.To seize and forfeit property which
includes real and personal property
whether situated in Malaysia or elsewhere
( including interest in any such real
or personal property)
Forfeiture with Prosecution
When there is prosecution after investigation
has been carried out under the Act - Section
40(1) MACC Act 2009 and Section 55(1)
AMLATFPUAA 2001
Forfeiture under Section 40(1)
MACC Act 2009 and Section 55(1)
AMLATFPUAA 2001
The forfeiture takes place during the trial
itself where the offence is proved against
the accused (where there is a conviction)
That the property is the subject matter of
the offence; or
That the property have been used in the
commission of the offence
Where the offence is not proved against the
accused (where there is no conviction)
That the property is the subject matter of the
offence; or
That the property have been used in the
commission of the offence; and
That the accused in not the true and lawful
owner of such property; and
That no other person is entitled to the property
as a purchaser in good faith for valuable
consideration
Forfeiture under Section 40(1)
MACC Act 2009 and Section 55(1)
AMLATFPUAA 2001
Forfeiture without Prosecution
When there is no prosecution after
investigation has been carried out under the
act - Section 41(1) MACC Act 2009 and
Section 56(1) AMLATFPUAA 2001
Forfeiture under Section 41(1)
MACC Act 2009 and Section
56(1) AMLATFPUAA 2001
The provision provides that where there is no
prosecution or conviction for an offence under
the Act, the Public Prosecutor may institute
forfeiture proceedings of that property;
The application must be instituted before 18
months from the date of seizure of the property
for MACC Act 2009 and before 12 months for
AMLATFPUAA 2001
The Judge to whom application for forfeiture
made:
1.
Shall cause to be published a notice in the
Gazette
2.
Calling upon any person who claims to have
an interest in the property to attend before the
court on a dated specified in the notice to show
cause as to why the property should not be
forfeited
Procedure of Forfeiture under
Section 41(2) MACC Act 2009 and
Section 56(2) AMLATFPUAA 2001
(a)
That the property is the subject matter of
the offence under the Act; or
(b)
That the property was used in the
commission of the offence under the Act;
and
(c)
That there is no purchaser in good faith
for valuable consideration in respect of
that property
2.
High Level Task Force 4. Joint Operation 1. Specialized/ dedicated AMLA Division
Asset Recovery Strategies
3.
Forensic and Financial expertise
Specialized and dedicated AMLA division
Established in Mid 2009
Special training in Anti Money Laundering And
Terrorist Financing Law including Money Laundering
and Financial Investigation
Working closely with Financial Intelligence Unit (FIU)
from Central Bank and other Foreign FIUs
High Level Taskforce
Members include Attorney General Chamber (AGC),
MACC, Tax Authority and Central Bank of Malaysia
Monthly meeting
Weekly Working Committee meeting
Focus on High Profile Corruption and Money
Laundering cases
Forensic and Financial expertise
Establishment of Forensic Accounting Unit (FAU)
Recruited expertise from private sector whose
specialized in Computer and Accounting Forensic.
Joint Operation
International - Joint Operation with other Law
Enforcement Agencies (LEA) such as Australian
Federal Police (AFP), ICAC Hong Kong, Corrupt
Practices Investigation Bureau (CPIB) and Anti
Corruption Bureau Brunei
Domestic
– Simultaneous raiding conducted by
MACC, Tax Authority and Investigation Unit from
Central Bank of Malaysia
Forfeiture under MACMA
Section 15 of Mutual Assistance in Criminal
Matters Act (MACMA 2002) provides for
requests to be made by the Attorney-General if
satisfied that there reasonable grounds for believing
that some or all
of the property concerned is
located in a foreign state.
Section 31 MACMA provides for request of
enforcement of foreign forfeiture order in
Malaysia
Section 37 MACMA provides for execution
of search warrants issued under Section
36 MACMA
The Attorney General may direct that
anything seized be immediately sent to the
appropriate authority of foreign country
concerned
Search Warrants and
Seizure under MACMA
International Cooperation in Asset
Recovery
Articles 51 to 58:Asset Recovery
The States Parties are determined to
prevent, detect and deter in a more
effective manner international transfers of
illicit acquired assets and to strengthen
international cooperation in asset
The United Nations Convention against
Corruption (UNCAC) and join initiative by
the World Bank and the United Nations
Office on Drugs and
termed StAR (Stolen
Crime
Assets
(UNODC)
Recovery
Initiative), have pushed the issue up the
political agenda
MACC
– International Involvement
Bilateral agreements with
(a) Anti-Corruption Bureau Brunei,
(b) KPK Indonesia,
(c) CPIB Singapore
the investig ation
: Reverse d an
A Go vernme nt Serv ant
Metho d olog y a p plie d in
Forw ard Finan cial tra cing.
Vehicle use d : The pro p erties held un d er trust by the la wyer
and c o m p anies
Proje c t : Go vernme nt Co nstru c tion Proje c t
1
stCharge : Se c tion 4(1) AMLATFPUAA
2001 on 10 Fe bruary 2011
Involving the disc overies of RM2,134,656.00 million c ash at his
house in Penang (rent al).
2
ndCharge : Se c tion 4(1) AMLATFPUAA
2001
On 22 June 2012 (28 c harg es)
Inv olving the disc overies of RM935,900 in PNB,
Tab un g Haji and M ayb ank a cc ount.
Applic ation of Section 56 AMLATFPUAA 2001
(Civil forfeiture or Non Conviction Base Prosecution)
File at High Court Shah Alam : 25 January 2011
Date of Forfeiture by High Court : 5 M ay 2011
Properties Involved : Bun ga lo w, Sho p Offic e and
House hold pro p erties
Go vernme nt Enforc em ent Offic er
Metho d olog y a pp lie d in the investig ation : Analysis of STR a nd
Intellig en c e Base Investig ation
Vehicle use d : Syn dic ate involve d in Ille g al g a m bling,
prostitution and m oney c hang er
1
stCharge : Se c tion 19 MA CC A c t 2009
2
n dCharg e : Se c tion 4(1) AMLATFPUAA
2001
Tot al a m ount involve d : RM3.95 million
Court : Session Court Johor Bahru
• Ops Water, is the biggest corruption investigation operation in the history of MACC – draws both national and international attention. The investigation was lead by Special Investigation Division of MACC.
• Over MYR120 M (USD 28 M) in cash, bank accounts, jewelleries and land titles were confiscated.
• 6 Investigation officers from Special Investigation Department, 200 supporting officers from various MACC offices nationwide.
• The investigation was completed and the suspects were prosecuted within 90 days from the day the operation been launched.
• The trial is still on-going, certain details of the case can only be disclosed at the discretion of Attorney General of Malaysia.
• Over MYR120 M (USD 28 M) in cash, bank accounts, jewelleries and land titles were confiscated.
• Further investigation revealed money trail leading to a few foreign country. ie Singapore, Australia, Hong Kong, Brunei etc
• MLA –Bilateral Agreement with Anti Corruption Bureau Brunei, KPK Indonesia, CPIB Singapore and ICAC Hong Kong
• Application of laws (If there is prosecution) :
• Sec. 36 of MACC 2001 and Section 49 AMLATFPUAAA 2001 deal with seizure and forfeiture of property derived or obtained from the act of corruption. • Application of Laws (If there is no prosecution or conviction of an offence) • Sec. 41(1) of MACC Act 2001 and Section 56 (1) AMLATFPUAAA 2001
• Legislative provisions concerning Mutual Legal Assistance (MLA) in investigation, prosecution and judicial proceeding in corruption cases vary quite significantly among the countries member.
• Banking Secrecy Laws- Bank and other financial institution in most jurisdiction are prohibited from divulging in personal and account information about their customers except in certain situations mandate by law or regulation.
• Unreasonable Delays in MLA Responses
• Adopt and implement comprehensive Strategic Plan on asset recovery within the countries member
• Provide sound legal basis for a wide range of types of Mutual Legal Assistance, whether through international conventions, domestic legislation, bilateral mutual legal assistance agreements, or an assurance of reciprocity. Based on our experience most MLA Laws and Bilateral MLA agreement permit requested states to refuse to provide the assistance in certain circumstances.