我們可以很容易地被起訴洗黑錢 ! YOU can be easily charged under AMLA!

I am contributing my part to a learned legal friend who is in the midst of writing and publishing a book on Anti-Money Laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act 2001. It is commonly known as “AMLA”. Yes Najib, Rosmah, Zaid, Shafie etc are charged under this law. Generally speaking, for a layman, those investigated or charged under this Act are perceived to be a big time criminals (underworld leaders, terrorist, corporate crooks); at least in the monetary sense. Is that so?

In the past, many thought of money laundering as the act of dealing with (“cleaning”) dirty money or black money. That perception is no longer correct, as the present scope of the law (after its 2007 and 2013 amendments) is indeed extremely wide.

The present situation is explained in Bank Negara Malaysia’s official portal as follows: The enforcement of the AMLA is undertaken by various ministries/agencies based on the predicate offences under their respective purview which is listed under the Second Schedule of the AMLA. As at November 2014, there were 356 offences under 42 pieces of legislations listed under the Second Schedule of the AMLA.

Briefly allow me to simply share why this law is indeed a very powerful one.

The following are the reasons:

1. An investigating officer (“IO”) can arrest you without warrant if he “reasonably suspects” you have committed or to be committing any offence under the Act.

2. IO can order you or your family members or friends or colleagues, orally or in writing (ie phone call or whatsapp) to attend before him and furnish any property, document or information. And if you refused the above, you commit an offence and can be liable to a fine up to RM3 million or jail term of 5 years or both !

3. All the above statement, property, document or information shall be admissible as evidence notwithstanding any written law or rule of law !!! (ss 40 & 71)

4. *TAKE NOTE any person engages or deals directly or indirectly in any manner whatsoever; proceeds of an unlawful activity commits an offence under AMLA (the Act practically covers every manner).

You may ask what is “unlawful activity”? Under the law it simply means any “serious offence”. What is then “serious offence”? Under the Second Schedule, it covers almost every transaction that deals with money. Among others it includes betting (yes 4D, EPL, election results), false report by a company, wrongful communication via computer, offer/receive bribes to custom officers, selling products without a direct sale licence or conduct pyramid scheme, incorrect return or evasion of income tax, sales or service tax (!!!), lending money without licence, hunting protected wildlife without licence, failing to declare moneys (amount as declared by BNM) taking in or out of Malaysia etc.

It is generally understood that in criminal cases, the onus is on the prosecution to prove its case beyond reasonable doubt. Under Section 70(2) AMLA, the prosecution remains bound to discharge this heavy duty insofar as it has to prove an offence has been committed.

However, in relation to any other facts, Section 70(1) states that they be decided on the balance of probabilities (which is the standard of proof applicable to civil cases).

Section 4(2) AMLA is an extremely powerful provision. It states that a person may be convicted of an offence of money laundering “irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreign serious offence.”

This means that a person who is alleged to have committed a serious offence (such as the above example of betting, tax evasion or direct sales offence under the applicable laws) may be convicted for money laundering (under AMLA) even if he has not been prosecuted or convicted for tax evasion or smuggling. The authorities may commence investigations under any of the statutes mentioned in the Second Schedule but may subsequently decide to prosecute the accused under AMLA.

So guys be very careful, basically AMLA can applies to and be used by the authorities against all of us in the country in a loose and flexible manner. Perhaps high time for the parliamentarians to look into this Act or separate it from the genuine money laundering offence and terrorism financing and unlawful activities.

Powerful AMLA

#ruleoflaw
#nomanisabovethelaw

Under AMLA, Bank Negara or MACC or the relevant enforcement authorities can ignore the RULE OF LAW!

Indeed AMLA law is an extremely powerful legislation.

Rule of law is a legal maxim that suggests no one is above the law and governmental decisions must be made only by applying known legal and moral principles. The Rule of Law limits the powers of Government by judicial defence of laws and the Federal Constitution which is based on recognized basic legal fundamental values. The Rule of Law is meant to prevent dictatorship and to protect the rights of the people. So what about section 40 of AMLA?

Another powerful provision is section 4(2) AMLA. It states that a person may be convicted of an offence of money laundering “irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreign serious offence.”

“This means that a person who is alleged to have committed a serious offence (such as tax evasion or smuggling under the applicable laws) may be convicted for money laundering (under AMLA) even if he has not been prosecuted or convicted for tax evasion or smuggling. The authorities may commence investigations under any of the statutes mentioned in the Second Schedule but may subsequently decide to prosecute the accused under AMLA.”

Same goes to the recent section 92 notice to compound the 80 listed entities/individuals. If one received monies from a source who is reasonably suspected to commit an offence under AMLA, a compound of RM2.5 million is payable. Yes even if you received RM1.00 only.

The Poor Must Not Be Intimidated.

窮人應該得到法律幫助…
Bantuan guaman and undang-undang terhadap mereka yang miskin.

We see poor and unfortunate people around the world including Malaysia. Sometimes it is not their fault (you can say I am against Bill Gates’ philosophy 🙂). Quite often they are the vulnerable ones when encounter with law suits and treatment by the government officers.

Our country should consider poverty law/policies seriously to assist them.

Poverty law is the practice of law as it intersects with the less privileged in society. The practice of poverty law concerns itself with making sure that poor people and the disadvantaged are treated fairly under the law. Poverty law isn’t always representing clients in court. It might include analysis of issues that impact the poor. It also might include advocacy for changes in laws and policies.

Poverty law is a broad term that includes many different government entities, private businesses and groups and subjects.

Government and lawyers should focus on poverty laws related to criminal, administrative, civil rights and health.

“WASH DIRTY MONEY” – 洗黑錢

什麼是洗黑錢?
In Malaysia, quite often if someone is charged under AMLA, he is perceived to be a criminal who washes “black money”? Many thought of money laundering as the act of dealing with cleaning dirty money or black money. That perception is not correct, as the present scope of the law (after its 2007 and 2013 amendments (explained below)) is indeed extremely wide.

The Anti-Money Laundering Act 2001 (AMLA) came into force on Jan 15, 2002. In March 2007, it was amended to include provisions to combat terrorism financing after the 9/11 tragedy in USA, and the original title was expanded to become Anti-Money Laundering and Anti-Terrorism Financing Act (AMLATFA).

In 2013, Parliament passed another amendment, resulting in further lengthening the already long title. It now reads the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA). This new amendment is intended to deal with “the proceeds of an unlawful activity”. For reasons of convenience, we still call it AMLA.

In a nutshell, a person obtained proceeds from unlawful activity of serious offences can be charged under AMLA. Serious offences include those in Penal Code, Malaysian Anti-Corruption Commission Act 2009, Dangerous Drugs Act 1952, Child Act 2001, Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, Customs Act 1967, Direct Sales and Anti-Pyramid Scheme Act, 1993, Income Tax Act 1967, Capital Market and Services Act 2007, and the Financial Services Act 2013.

Cryptocurrency in Malaysia.

加密貨幣法律…
They say in future everyone must own a cryptocurrency (digital money or electronic currency etc) but is it secured, reliable and profitable?
There are 3 cryptocurrency operators recognised in Malaysia now (and for sharing purpose, seven P2P and equity crowdfunding operators). Many are ignorant about cryptocurrency except by knowing it as some kind of digital stuff or related to Bitcoin. More importantly is cryptocurrency properly regulated in Malaysia? It is progressively regulated in the USA and Japan but is still at the infancy stage in Malaysia. The 2019 Order is only a 5 pages document that is not exhaustive to protect the interests of the operators, business community, investors and users.

Focus and understanding on regulation of cryptocurrency exchanges (and perhaps e-wallets) is a sine quo non. There should not be much issue on the digital development but the utilization by the black market.

The standards need to contain requirements for the related bodies to not only monitor and record information about its customers but also share that information during a transfer (blockchain, equity crowdfunding etc are another issues). The identification of the source and recipient of the funds is considered crucial in combatting money laundering and terrorism finance. Indeed, the recording and sharing of identifying customer information during transfers has to be regulated properly before allowing such development in the country. It is an inevitable exchange in years to come and the only bodies that would against it are the financial institutions.