Zaiton Hamin

Configuring criminal proceeds in money laundering cases in the UK

Purpose – The purpose of this paper is to examine the way in which the courts in the UK have interpreted the meaning of criminal property in the principal money laundering offenses under the Proceeds of Crime Act 2002 (POCA). Design/methodology/approach – This paper employs a doctrinal legal analysis and secondary data, which analyze the primary source, which is POCA itself, and secondary sources including case law, articles in academic journals, books and online databases. Findings – The authors contend that the courts in the UK have been dynamically interpreting the ambit of money laundering offenses in POCA and that despite such judicial activism in the construction of criminal property, it has provided a much needed certainty to the law. Originality/value – This paper could be a useful source of information for the practitioners, academicians, policymakers and students in this particular area of crime.

The application of the digital signature law in securing internet banking: Some preliminary evidence from Malaysia

Abstract Malaysia is one of the first countries in the world to blaze the trail for having a prescriptive legislation of governing the digital signature technology. Whilst the Digital Signature Act 1997 has always been acknowledged as one of the pioneers of a technology-specific legislative approach, the Act nevertheless, has been greatly exposed to numerous critiques, suggesting its inability to secure online transactions, including Internet banking. Moreover, the lack of any of its provisions being tested in the Malaysian courts has in turn, suggested that the law has an inconsequential application in securing Internet banking transactions. Drawn from an ongoing doctoral research, this paper will highlight a methodological process and a preliminary finding of eight multiple-case studies amongst banks offering Internet banking services in Malaysia. The research, at the onset revealed that in ‘the real life situation’, the digital signature technology is hardly being adopted in securing Internet banking transactions, which has consequently shaped the extent of the application of the digital signature law in Malaysia.

ICT adoption by the Malaysian high courts: Exploring the security risks involved

It is a truism that the information and communication technologies (ICT) have changed the way people engage in all aspects of their lives, including how the judiciary functions. The ICT applications adopted by the courts are varied including access to legal materials, high technology information and evidence display systems, electronic filing, foreign language translation, multimedia court records, information and evidence retrieval, audio conferencing, video conferencing and the publics access to court information via the worldwide web. Drawn from an ongoing research, this paper aims to highlight that the growing adoption of ICT by the courts in many jurisdictions in fact raises several issues of security risks. This paper begins by illustrating the concept of courtroom technology and the current technical applications available in the Malaysian courts. The examination of the emergence of non-legal risks closely connected to security and the legal risk raised by courtroom technology is mediated through the understanding of several basic security control requirements involving authentication, non-repudiation, confidentiality, data integrity and privacy encroachment. The paper contends that despite the common notion that law will always lag behind technology, the courts would need to understand these legal and non-legal security risks and manage them in the most efficient and effective manner if judicial business were to be continually advanced by the ICT.

Benefits and achievements of ICT adoption by the High Courts of Malaysia

This paper is drawn from an ongoing research which attempts to examine the socio-legal implications of the current adoption of information and communication technologies (ICT) on the delivery of the civil justice system of the High Courts of Malaysia. Among the objectives of this research paper is that it aims to critically examine the benefits and achievements of ICT adoption in the abovementioned courts. This research also aims to propose recommendations for the amendment to the relevant statutes, improvement to the practice directions, and to propose best practices and code of conduct in eliciting improvements to the ICT adoption by the Malaysian courts. The research adopts a qualitative method, comprising of the collection of primary data (which involves field work adopting the case study design at the High Courts of West and East Malaysia) and secondary data (which involves library-based research). The primary data which have been generated is analysed by using the computer aided qualitative data analysis software ATLAS.ti version 6.2 prior to reporting of the same. It is hoped that this research will contribute to the body of knowledge on ICT adoption by the courts of Malaysia.

FATF and Lawyers’ Obligations under the AML/ATF Regime in Malaysia☆

Abstract The Financial Action Task Force (FATF) as an international standard-setter and an inter-governmental body established in 1989 and has set various measures consisting of legal, regulatory and operational ones in governing money laundering and terrorism financing. Given the threats of such crimes and the vulnerabilities of some professions and businesses to such crimes, in 2003 the FATF included them under the AML/CFT regime. Since then, those professions and businesses became the gate-keepers and known as the designated non-financial business and professions (DNFBPs). As a consequence of such inclusion, several mandatory obligations were imposed on these gate-keepers, involving customer due diligence, record-keeping, reporting obligation, the compliance function and training programme for employees. It is within this context that the objective of this paper is to examine the extent to which the FATF is moulding the AML/CFT regime in Malaysia, which in turn, is shaping the compliance of legal profession, who now have to “police” their clients for evidence of money laundering and terrorist financing. The authors contend that the gate-keeping role of the legal practitioners inevitably raises controversial issues involving the violation of ethical conduct, professional legal privilege and also the independence of the legal profession.

When Property is the Criminal: Confiscating Proceeds of Money Laundering and Terrorist Financing in Malaysia☆

Abstract Since the creation of the Anti-Money Laundering Act (AMLA) in 2001, which is now known as the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 200l (the 2001 Act), money laundering and terrorism financing have been criminalized. Other legal measures to disrupt the flows and incidence of such crimes were also introduced involving freezing, seizure and confiscation or forfeiture of the proceeds of such crimes by the authorities. Prior to the 2001 Act, confiscation cases were almost exclusively centred on drug trafficking cases under the Dangerous Drug legislation. The 2001 Act entailed two current types of confiscation of criminal property, namely, the criminal confiscation that is based upon the prosecution of the accused person and the civil confiscation when there is no such prosecution. This paper seeks to examine these confiscation systems in Malaysia to understand their origin, nature and the extent to which such confiscation systems could be governed at the international and local levels. Of significance, is the legal implications of the non-conviction based confiscation that indicates that such confiscation law represents one of the most serious encroachments on private property rights. It is worse when the rule of such confiscation is making the property and not the property owner, guilty until proven innocent.

Security Implications of ICT Adoption in the High Courts of Malaysia

Bearing in mind the double-edged nature of information and communication technology (ICT), it is admitted that at one end, ICT introduces great possibilities and benefits, at the other end, it inevitably leads to various uncertainties and insecurities. It is within this context that this paper aims to critically examine the security implications of ICT in the High Courts of Malaysia. In addition, this research aims to propose recommendations for the amendment to the relevant statutes, improvement to the practice directions and to propose best practices and code of conduct in implementing ICT in the courts. Drawn from an ongoing research which attempts to examine the legal implications of the current adoption of ICT on the delivery of the civil justice system of the High Courts in Malaysia, the research adopts a qualitative method, comprising of the collection of primary data (which involves a field work adopting the case study design) and secondary data (which involves a library-based research). The primary data which have been generated is analysed by using the computer-aided qualitative data analysis software ATLAS.ti version 6.2 prior to reporting of the same. The paper concludes that the adoption of ICT in these courts are imbued with numerous security implications, which in many ways would challenge the way the judicial business would be carried out and also the way in which justice would be delivered and served. II. R ESEARCH Q UESTION AND O BJECTIVES The research question of the study is: what security implications does the current adoption of ICT have on the delivery of the civil justice system of the High Courts in Malaysia? Consequently, there are two objectives to this research; the first is to critically examine the security implications of ICT in the civil justice system of the High Courts in Malaysia. Second, this research aims to propose recommendations for the amendment to the Rules of High Court 1980 and relevant Statutes, improvement to the practice directions, and to propose best practices and code of conduct in implementing ICT at the courts.

Socio-legal implications of courtroom technology

This paper is drawn from an ongoing research which attempts to examine the socio-legal implications of the current adoption of courtroom technology on the delivery of the civil justice system of the High Courts in Malaysia. Among the objectives of this research is that it aims to critically examine the socio-legal implications of courtroom technology in the abovementioned courts. This research also critically examines the experience of courtroom technology in the United Kingdom for comparative analysis and lessons to be learned. Finally, this research aims to propose recommendations for the amendment to the relevant statutes, improvement to the practice directions, and to propose best practices and code of conduct in implementing courtroom technology. The research adopts a qualitative method, comprising of the collection of primary data (which involves field work adopting case study design at the High Courts of West and East Malaysia) and secondary data (which involves library-based research). The primary data which have been generated is analysed by using the computer aided qualitative data analysis software ATLAS.ti version 6.2 prior to reporting of the same. It is hoped that this research will contribute to the body of knowledge on courtroom technology in Malaysia.

Governing Non-profit Organisations Against Terrorist Financing: The Malaysian Legal and Regulatory Modalities

Given the varied nature of non-profit organisations (NPOs) in Malaysia, the inherent risks connected to fundraising and charitable activities—the abuse of such sector for terrorists and money laundering purposes—may occur in many forms. Such risks may be exacerbated by weak governance structure and financial controls of NPOs and lack of supervision by regulators. This chapter argues that, despite the AML/CTF law—the legislations regulating NPOs and Best Practices—the governance of NPOs including zakat institutions in Malaysia remains a vexed issue, given the diversity of the laws affecting them and the changing legal, social, and political scenarios within the country. A much tougher political will and drastic measures to empower the regulators and NPOs to curb terrorist financing risk would be needed.

Implications of forfeiting property in money laundering cases in Malaysia

Purpose The purpose of this paper is to examine the broad concept of forfeiture, its legal positions in the UK and Malaysia, and to highlight the implications of such forfeiture systems and legislations. Design/methodology/approach This paper uses a doctrinal legal analysis and secondary data, which analyses primary sources, the POCA (2002) and the AMLATFA 2001, and secondary sources including case law, articles in academic journals, books and online databases. Findings The authors contend that the civil forfeiture system and law have far-reaching implications, affecting not only law enforcement agencies, but also on property owners, the courts and bona fide third parties. Also, civil forfeiture law as contained in AMLATFA 2001 represents one of the most serious encroachments on private property rights. Not only that, such a legal rule has made property, and not the owner, guilty until proven innocent. Originality/value This paper could be a useful source of information for practitioners, academicians and students. It could also be a beneficial guide for policymakers for any possible future amendments to the law.