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(1)

Asset Recovery : The

Malaysian Anti-Corruption

Commission Efforts

Presentation By :

SITI ZAKIAH BINTI CHE MAN

Senior Assistant Commissioner

(2)

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

     

(3)

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)

(4)

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

(5)

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)

(6)

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

(7)

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

(8)

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

(9)

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

(10)

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

(11)

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

(12)

(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

(13)

2.

High Level Task Force 4. Joint Operation 1. Specialized/ dedicated AMLA Division

Asset Recovery Strategies

3.

Forensic and Financial expertise

(14)

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

(15)

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

(16)

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

(17)

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

(18)

International Cooperation in Asset

Recovery

(19)

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

(20)

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

(21)

MACC

– International Involvement

Bilateral agreements with

(a) Anti-Corruption Bureau Brunei,

(b) KPK Indonesia,

(c) CPIB Singapore

(22)

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

st

Charge : 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).

(23)

2

nd

Charge : 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.

(24)

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

(25)

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

st

Charge : Se c tion 19 MA CC A c t 2009

2

n d

Charg e : Se c tion 4(1) AMLATFPUAA

2001

Tot al a m ount involve d : RM3.95 million

Court : Session Court Johor Bahru

(26)

• 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.

(27)

• 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

(28)

• 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

(29)

• 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.

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