Journal of Money Laundering Control

Investigation and prosecution of money laundering cases in Malaysia

Zakiah Muhammaddun Mohamed Khalijah Ahmad

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Bala Shanmugam, Mahendhiran Nair, R. Suganthi, (2003),"Money laundering in Malaysia", Journal of
Money Laundering Control, Vol. 6 Iss 4 pp. 373-378 http://dx.doi.org/10.1108/13685200310809699
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Investigation and prosecution

of money laundering cases
in Malaysia
Zakiah Muhammaddun Mohamed and Khalijah Ahmad

Money
laundering cases
in Malaysia
421

School of Accounting, Faculty of Economics and Management,

Universiti Kebangsaan, Bangi, Malaysia

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Abstract
Purpose The purpose of this paper is to examine money laundering cases investigated by
the Central Bank of Malaysia under the Anti-Money Laundering and Anti-Terrorism Financing
Act 2001.
Design/methodology/approach This study analyzes the contents of public releases by the
enforcement division of the Central Bank for period 2007 to 2011. Analysis of data is carried out based
on three categories: the predicate offence, the perpetrators and current status of the cases.
Findings Findings reveal that most cases investigated by the Central Bank relate to sec 4(1) of
AMLATFA 2001 and the main predicate offence related to the money laundering charges are on illegal
deposit taking. Further it is found that directors of companies are the leading group of people charged
under the Act for money laundering. In addition, findings also show that only half of the cases
investigated have been charged in court.
Research limitations/implications Data from this research only come from enforcement
releases from the Central Bank of Malaysia. Since AMLATFA2001 is administered by multiple
agencies, the research may not provide a comprehensive view of all the cases investigated.
Future research should look at other agencies and in particular the Royal Police of Malaysia.
Practical implications Findings from the study suggest that prosecuting money laundering
cases by Bank Negara Malaysia are limited to cases with predicate offence of illegal deposit taking.
The agency should explore other predicate offences and the concept of irresistible inference to
increase its effort in prosecuting money laundering activities in the country.
Originality/value The paper documents and analyzes the actual cases being investigated for
money laundering offences. It provides basis for the standard setters to evaluate their effort to curb
money laundering activities in Malaysia.
Keywords Money laundering, Investigation, Prosecution, Bank Negara Malaysia,
Anti-Money Laundering Act 2001, Malaysia
Paper type Research paper

Introduction
Money laundering is a financial crime that generates increasing global concerns in this
modern age. The crime, commonly known as a crime of concealment, usually involves large
sums of illegal money being mobilized in many economies through the financial system. Up
to 2010, there are about 94 money laundering cases prosecuted at various stages involving
proceeds amounting to RM1.2 billion (Malaysian Insider, 2010). The increasing number of
money laundering activities in Malaysia was partly contributed by loopholes in the existing
law and lack of knowledge of the relevant legal institutions in combating money laundering
(The Star, 2009)[1]. Developed countries such as the USA and Australia have raised
This study has been made possible with funding from UKM grant UKM-DIMP-003-2011.

Journal of Money Laundering Control

Vol. 15 No. 4, 2012
pp. 421-429
q Emerald Group Publishing Limited
1368-5201
DOI 10.1108/13685201211266006

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422

concerns over the failure of some developing countries to introduce good governance on
financial institutions and such weaknesses allowed launderers to use them as safe haven.
Political pressure from developed countries and international bodies to combat laundering
activities had led to the enactment of Anti-Money Laundering Act by Parliament in 2001 in
Malaysia. In 2003, the Act was revised and renamed as Anti-Money Laundering and
Anti-Terrorism Financing Act 2001. Since the passing of the Act, only a small number of
cases have been successfully convicted. The aim of this research is to analyze money
laundering cases investigated by the BNM, a leading agency in prosecuting money
laundering cases in Malaysia for the period of 2007-2011. Findings from this research reveal
the details on the cases investigated by enforcement agencies in Malaysia to curb money
laundering activities in the country.
What is money laundering
The Financial Action Task Force (FATF) of the Organization for Economic Cooperation
and Development (OECD) defines money laundering as [. . .] the processing of criminal
proceeds to disguise their illegal origin. The UN described money laundering as:
[. . .] activities linked with the conversion or transfer of property, or the concealment of the
disguise of the true nature of property, knowing that this property is derived from drug
trafficking.

In layman words, money laundering refers to the process of legalizing ill-gotten gain
without jeopardizing or revealing the sources. The process employs various methods,
from financial to accounting, legal and other available instruments to clean the
money derived from or associated with unlawful activity.
Money launderer uses three stages in laundering activities namely, placement,
layering and integration. At placement stage, the illegal money will be deposited in the
financial system. The money will be changed into a less suspicious form. For example, in
banking institution, at the placement stage, the illegal money is deposited in local or
international financial institution in small amount to avoid from being suspected by the
banks employee. The second stage is the layering stage where the purpose is to
disassociate the illegal money from its sources by moving the illicit money in the account
of bearer shell companies operating in countries that had flexible monetary regulations.
At the integration stage, the money moved into the financial world and mixed with funds
of legitimate origin (Richards, 1999).
Money laundering brings many negative impacts on the economic growth of a
country in particular and the global market at large (FATF, 2002). These include
destabilization of the economy and society; integrity of banking institution and diminish
the investment and growth of a country. There are many industries that are exposed to
money laundering activities such as the banking institution, food industries, trading,
insurance, investment, real estate and money changer.
Review of prior studies
The seriousness of money laundering crimes spark academic research in this area from
all parts of the globe covering the legal as well as the practical issues surrounding
the crime. Research on money laundering comprise studies on the regulation, offences,
cases, preventive actions and recognizing trends of money laundering activities in
various countries. Malaysia has joined other countries in embarking in serious efforts to

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combat money laundering activities (Shanmugam et al., 2003). The effort starts with the
enactment of AMLATFA 2001 under the purview several agencies and led by Central
Bank of Malaysia (BNM). AMLATFA 2001 is the first act with multi agencies
enforcement in Malaysia (Shanmugam, 2004).
Money laundering is claimed to be one of the biggest obstacles to an effective
international financial system. The activities often involve a series of financial
transactions in various financial institutions across many different jurisdictions making
it difficult to prosecute in the court of law (Buchanan, 2004). The activities are often
linked to underground economies and organized crime. FATF estimated the size of
money laundering activities to be 2 per cent of global GDP. The percentage is estimated
to be higher for a developed country (Walter, 1990).
Money laundering activities generate large profits (Walker, 1999) particularly in many
countries that have weak regulatory regimes. Many scholars suggest that the anti-money
laundering regime in many countries is ineffective in combating organized crime and
terrorism. Many claimed that the act is mere cover to achieve ulterior aims (Orlova, 2008).
The typical methods of money laundering that have been discussed in the literature
include cash smuggling (Dupuis-Danon, 2006), money laundering through banking
institutions, insurance institutions, realty and lottery business, underground banks,
international trade-based, through shell or front company, professionals such as
lawyers or accountants, or through electronic money transfer. Money laundering cases
can also be linked to fraud. For example, an insurance fraud may be linked to a money
laundering scheme in which the criminal launder proceeds of crime in a life insurance
policy with a single lump sum payment and subsequently redeemed the money
(Thanasegaran and Shanmugam, 2008).
Money laundering is a predicate based or derivative crime (Shehu, 2004). A predicate
offence is defined by UN Convention (2000) Art.6.2 (c) subsection (b) as:
[. . .] offence committed both within and outside the jurisdiction of the state party in question.
However, the offences committed outside the jurisdiction of a state party shall constitute
predicate offences only when the relevant conduct is a criminal offence under the domestic law of
the state party implementing or applying this article had it been committed there (Shehu, 2004).

Recent article by Murray (2011) suggests that the use of predicate offence as a means of
proving money laundering may not be adequate to combat money laundering activities
connected with organized crimes. He promotes the concept of irresistible inference from
case law in the UK as an alternative means to prosecute the crime. The application of this
concept however may require changes in legislations in many countries including Malaysia.
The law
AMLATFA 2001 comes into force on March 6, 1997. The act consists of seven parts,
namely, the offences of money laundering, investigation on money laundering activities
and seizures and forfeitures of money laundering money. The preamble of the act stated
the purpose of the act was to provide for the offence of money laundering, measurement to
prevent money laundering and terrorism financing offences and forfeiture of property.
The act was designed to be in conformity with international treaties on money laundering
particularly the FATF 40 recommendations on money laundering and Ninth Special
Recommendations on terrorism financing (Norhashimah, 2004). FATF is recognized as
the international setter for anti-money laundering activities.

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424

The government has set-up the National Coordination Committee (NCC) in its effort to
battle against money launderer. NCC consists of 13 ministries and government agencies
will become the platform for national anti-money laundering strategy and policies in
Malaysia (Shanmugam et al., 2003). These agencies have locus standi to enforce criminal
laws against money laundering and terrorism financing. The agency includes Bank
Negara Malaysia; Anti-Corruption Commission (MACC), Ministry of Domestic Trade,
Cooperatives and Consumer Affairs (the ministry); Royal Malaysia Police (PDRM);
Royal Customs Malaysia; Local Authority Ministry of Finance Malaysia;
Communications and Multimedia Commission (MCMC) and various other agencies.
Through NCC, these agencies with different jurisdictions will co-ordinate to ensure its
effectiveness in combating money launderer.
AMLATF 2001 covers a wide scope on the offence of money laundering by referring
to the act of:
the act of a person who
(a) engages, directly or indirectly, in a transaction that involves proceeds of any unlawful
activity;
(b) acquires, receives, possesses, disguises, transfers, converts, exchanges,
carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or
(c) conceals, disguises or impedes the establishment of the true nature, origin, location,
movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful
activity,
where
(aa) as may be inferred from objective factual circumstance, the person knows or has reason to
believe, that the property is proceeds from any unlawful activity; or
(bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to
take reasonable steps to ascertain whether or not the property is proceeds from any unlawful
activity (S. 3 Interpretation AMLATFA 2001).

Unlawful activity means any activity which relates, directly or indirectly, to any serious
offence or any foreign serious offence (S. 3 Interpretation AMLATFA 2001).
Proceeds of unlawful activity means any property derived or obtained, directly or
indirectly, by any person as a result of any lawful activity (S. 3 Interpretation
AMLATFA 2001).
The unlawful activities that fell within the scope of money laundering act are listed in
the Second Schedule of the act. The act has listed 121 money laundering offences which
include human trafficking, betting, drugs, terrorism, anti-corruption and copyright
infringement. Section 4 of AMLATFA give the court power to imposed fine not exceeding
RM 5 million or imprisonment not exceeding five years or both to those who found guilty
of committing money laundering offences. The Second Schedule list is not meant to be
exhaustive and will be revised from time to time. This latest amendment made to Second
Schedule is on May 3, 2011 where the government has gazette Anti-Money Laundering
and Anti-Terrorism Financing (Amendment of Second Schedule) Order 2011 to include
Kootu Funds (Prohibited) Act 1971 in the list.
AMLATFA 2001 also covers those who, directly or indirectly, assist or knows to be a
party in a transaction that involves proceeds of unlawful activities. The act covers not
only the wrongdoer but also their associates, advisers, accomplices and anyone who is
involved in the activities. These associates may include bankers, brokers, real estate
agent, chartered accountant, etc. What need to be proved, the associate or the advisor

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in question knowingly assisted or involved in the process. The term knowingly

connotes that the accused must have knowledge of the fact that the money derived from
unlawful activity. In any criminal cases the existence of mens rea (criminal intention) has
to be proven before the accused is found guilty[2]. The needs to prove mens rea in money
laundering cases have been a challenging factor to the prosecution officer in Malaysia[3].
AMLATFA 2001 gives the power to the prosecutor to charge launderer under both
criminal actions and civil actions.
The investigation
Section 44 of the act gives the enforcement agency the power to apply to the court to issue
a freeze order against a financial institution if there is reasonable ground to believe that
money laundering offences has been committed. The purpose is to facilitate investigation
and to secure and preserve the evidence in relation to the commission of the offence.
The court refused to accept the argument that section 44 of AMLATFA violated Article 8(1)
of the Federal Constitution. In the case of Khor Peng Chai And 12 Ors v. Bank Negara
Malaysia And Anor [2010], 11 of the applicants were involved in trading business between
Malaysia and China. The first respondent has reasonable ground to believe that applicants
have committed an offence under subsection 4(1) of AMLA, issued an order to freeze
the applicants banks account pursuant to section 44 of AMLA. The applicants claimed the
said act was unconstitutional as it allowed freezing orders to be issued without notice
to the persons concerned and thereby violated the provision of the Federal Constitution that
all persons are equal before the law. The appellants sought leave for judicial review on
section 44 but were rejected by the court. Judge Mohd Zawawi held that the order was not an
administrative decision which could be reviewed within the ambit of a judicial review[4]. He
further stated that the purpose of section 44 is to provide avenue for the prosecution to secure
and to preserve the evidence in relation to the commission of money laundering offences.
The court refused to revoke the order for fear of dissipation of the money in the bank.
The act allows seizure of money laundering asset by virtue of section 45-50 of
AMLATFA 2001. Seizure of illicit property includes property held by financial
institutions. Section 50(2) protects the financial institution and its employee against any
criminal or civil action as a result of complying with the seizure order.
Forfeiture of money laundering property is discussed under section 56-64 of
AMLATFA forfeiture of property under the act can be divided into two namely
forfeiture of property upon prosecution and forfeiture of properties where there is no
prosecution. The section allows the prosecution to forfeit the illegal property although
no criminal charges had been made against the accused within 12 months of the date of
the freeze or seizure order for a forfeiture order, even if the accused was not prosecuted.
Since drugs offence is one of the predicate offences in Second Schedule, cases discussed
under the Dangerous Drugs (Special Preventive Measures) Act 1988 can be apply and
used as an analogy when discussing the issue of forfeiture under AMLATFA 2011.
(Norhashimah, 2002). In the case of Kanagasavey a/l Sinayah v. Public Prosecutor
[1995] 2 MLJ 239, the appellant was arrested under the Drugs (Special Preventive
Measures) Act 1988. He was then released without charge. The appellant applied for
the return of RM7, 500 in two account which has been forfeited under section 32 of the
said act. The court uphold the forfeited on the ground that the appellant failed to prove
that the fund was not proceed of illegal drug activities. Over who has the onus of proof,
it is illustrated in the case of PP v. Tan Lee Kok [1988] 2 MLJ 65:

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[. . .] the law does not place the burden on the Public Prosecutor to satisfy the court that the
seizure was proper, or that the property ought to be forfeited; on the contrary the law places
the burden on the person who made the claim to answer the summons. Section 32(3) places
the burden upon the person making claim upon proof that he is lawfully entitled thereto.
Section 32, therefore, places no burden on the Public Prosecutor to prove anything.

The provision of AMLATFA allows the public prosecutor to apply to the court for an
order of forfeiture of property which they are satisfied has been obtained under subsection
4(1) or terrorism financing offence although there is no prosecution or conviction under
that said subsection 4(1). The court in deciding the case will apply the standard of proof in
civil proceeding (section 56(4) AMLATFA). The process of forfeited illegal proceeds for
non conviction cases were brought under the civil action. The civil forfeiture has been
introduced in many countries such as the USA, UK, South Africa and Australia. In civil
forfeiture, the action is brought against the property (in rem) and not against a person
(in personam). In civil forfeiture, it allows the government to recover the proceeds of crime
whether there is a criminal prosecution against the wrongdoer or not (section 56
AMLATFA). The onus of proof in civil law action is not as high as the criminal standard.
The test of balance of probabilities needs to be established before the court ordered the
property be forfeited to the Federal Government. (section 58 AMLATFA). Civil forfeiture
is necessary in cases, inter alia, where the wrongdoer has died, where the forfeiture is
uncontested by the accused or a third party and where the property belongs to a third
party (Cassella, 2007). In its annual report in 2009, the Attorney Generals Chambers of
Malaysia has successfully completed 15 cases including civil forfeiture cases where the
amount of monies forfeited was RM 14.5 millions.
Research methodology
This study analyzes BNM public releases for period 2007-2011. The data relate to cases
investigated for commercial fraud obtained from the BNM web site under the enforcement
section. Analysis of data is carried out on the four sections of enforcement release
documents namely the criminal prosecution, civil actions, administrative actions and aces
compounded. Descriptive statistics for each section are prepared as follows:
.
The predicate offence for cases investigated.
.
The perpetrators this analysis is on the characteristic of perpetrators that is
the person/people or organization that has been charged.
.
Current status of the cases.
Cases investigated by BNM
This study analyses cases investigated by BNM under AMLATFA 2001. A total of
26 cases were listed on BNMs web site. All of the cases are local companies where
individuals linked to the companies are charged with the money laundering activities.
The investigation of these cases commenced in the period of between 2007-2011.
The statistics of these cases are given below.
Predicate offences
The list of predicate offences prosecuted in money laundering cases investigated by
BNM is given in Table I. As shown in the table, almost all of the cases investigated by
BNM have section 25(1) of BAFIA as their predicate offence and are charged under

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section 4(1) of AMLATFA 2001. Some cases have more than one other offence under a
different Act. The other Acts that are relevant in money laundering cases handled by
BNM include Capital Market and Services Act 2007, Companies Act 1965, Exchange
Control Act 1953 and the Penal Code. The cases with a Penal Code involving theft
or cheating as a predicate offence are passed over to the PDRM before they brought
to court. Out of the total 26 cases investigated, only one case is reported to be on
section 61(2) of AMLATFA 2001 which is related to third party claim on forfeited assets.

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427

Individuals or entities charged

The analysis reveals that company directors represent the most number of individuals
(28 individuals) charged followed by employees (five individuals) including
senior officers and partners or shareholders (two individuals). In total, together with
individuals, six companies and one non profit organizations were charged for money
laundering crimes (Table II).
Current status of reported cases
The reported cases are in various stages of investigations. Investigations by BNM
started with raids to companies suspected of the engaging in illegal activities following
complaints from the public. At this stage, the relevant assets and documents are seized
to facilitate investigations. Of the cases listed, three cases found in 2010 are still under
investigation. 15 cases have been charged with 12 cases in pending hearing by
the court. One case results in discharge not amounting to acquittal on the ground that
all the accused have absconded. In one case the company has pleaded guilty while
another case was closed when the accused paid compound. Suspects went missing has
made one case not brought to court. No charges were made to the case involving
section 61(2) AMLATFA for third party claims on seized assets before being forfeited.
The criminal sessions court in Seremban Negeri Sembilan has agreed to hear this case
(Table III).
Predicate offence

AMLATFA 2001

Section 25(1) Banking and Financial Institution

Act 1989
Section 212(2) Capital Market and Services Act 2007
Section 366(3) Companies Act 1965
Section 4 Exchange Control Act 1953
Penal code
Not applicable

Section 4 (1)

Director of companies
Employee
Partner/shareholder
Operator
Company
Non profit organization
Total

Section
Section
Section
Section
Section

4 (1)
4 (1)
4 (1)
4 (1)
61 (2)

Number of companies
21
1
1
6
3
1

Table I.
Statistics on predicate
offence charged with
AMLATFA 2001

28
5
2
1
6
1
43

Table II.
Number of charges made
on the cases

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Table III.
Statistics on current
status of cases

Seized of relevant assets and documents

Charged in court
Discharged not amounting to acquittal
Pleaded guilty
Case closed compound
Suspects missing
Cases handed over to PDRM
Ongoing court case for third party claim
No status update after investigation started
Total

3
12
1
1
1
1
2
1
4
26

Conclusion
Money laundering is a serious offence as it is often linked to underground economy and
organized crime. Malaysia has taken a major step in curbing the activity by enacting
AMLATFA 2001. Since money laundering involves the transfer of money and financial
institutions are the main channel for money transfer, BNM has a major role to ensure that
AMLATFA 2001 is effective to curb these illegal activities. This paper analyzes the
cases reported in BNM web site as cases investigated to gain understanding on trends in
money laundering investigations. Findings reveal that most cases investigated by BNM
are related to section 4(1) of AMLATFA 2001 and the predicate offence related to the
money laundering charges relate to illegal deposit taking. Further it is found that
directors of companies are the leading group of people charged under the act for money
laundering. It appears that BNM is facing problems in getting evidence to charge
launderers because only half of the reported cases have been charged in court.
Notes
1. The Star, April 25, 2009.
2. Public Prosecutor v. Lim Ah Kew (unreported). The court has acquitted the accused since
the Public Prosecution had failed to establish the mens rae.
3. Extract from an interview with Tuan Zulkifli Ahmad, Ketua Unit Pendakwaan,
AG, Putrajaya, on May 18, 2009.
4. See Gilligan v. Criminal Assets Bureau.
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Vol. 13 No. 1, pp. 15-32.
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Money Laundering Control, Vol. 14 No. 1, pp. 79-92.
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Experts, 2nd ed., Wiley, Hoboken, NJ.
Sproat, P. (2009), To what extent is the UKs anti money laundering and asset recovery regime used
against organised crime, Journal of Money Laundering Control, Vol. 12 No. 2, pp. 134-50.
Corresponding author
Zakiah Muhammaddun Mohamed can be contacted at: zmm@ukm.my

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