Thursday 14th of December 2017 02:32:38 PM

Summaries of Applicable Laws and Processes


(Note: The summaries below are as provided by the respective Treaty Parties.) (Last updated: 15 May 2012)
MALAYSIA
 
Mutual assistance in criminal matters is the formal process by which Malaysia requests and renders assistance in the collection of evidence to be used in a criminal matter, e.g. an investigation or criminal proceedings. Mutual assistance is generally required when compulsive measures or legal sanctions are required to obtain the evidence, e.g. through the issue and enforcement of court orders.
The legal basis for mutual assistance are the Mutual Assistance in Criminal Matters Act 2002 [Act 621] or applicable Mutual Assistance in Criminal Matters Treaties (MLATs). Malaysia does not use the stand-alone legal regimes in international Conventions as the legal basis for mutual assistance and instead gives effect to its international obligations through special directions under the Mutual Assistance in Criminal Matters Act 2002 for Convention States Parties that do not have bilateral MLATs with Malaysia.

The Attorney General’s Chambers is Malaysia’s Central Authority for Mutual Legal Assistance in Criminal Matters. The International Affairs Division of the Attorney General’s Chambers handles and processes all formal requests for assistance in accordance with the provisions of the Mutual Assistance in Criminal Matters Act 2002 and any applicable Mutual Legal Assistance Treaty.
 
Overview of the Mutual Assistance in Criminal Matters Act 2002
Countries with which Malaysia has existing Mutual Legal Assistance Treaties are gazetted as “prescribed foreign countries” under section 17 of the Act. Such countries may be rendered assistance in accordance with the terms of the relevant Treaty and the Act.
 
Countries which are not gazetted as prescribed foreign countries under the Act (non-treaty partners) may still be rendered assistance upon the Minister’s Special Direction issued under section 18 of the Act. Malaysia generally requires an appropriate undertaking of reciprocity stating that the country will comply with a future request by Malaysia to that country for similar assistance in a criminal matter involving an offence that corresponds to the foreign offence for which assistance is sought.
 
Section 4(1) of the Act makes it clear that the Act does not prevent the provision or obtaining of international assistance in criminal matters to or from the International Criminal Police Organization (INTERPOL) or any other international organization e.g. the International Criminal Court (I.C.).
 
Further, section 4(2) of the Act makes it clear that the Act does not prevent the provision or obtaining of international assistance in criminal matters to or from any foreign State other than the assistance of a kind that may be provided or obtained under the Act (e.g. through treaty). However, mutual assistance under the Act is currently limited to foreign States and does not extend to international organizations (e.g. the ICC).
 
Types of assistance
Section 3 of the Act lists the types of assistance available under the Act. This includes -
 
  • providing and obtaining of evidence and things;
  • the making of arrangements for persons to give evidence, or to assist in criminal investigations;
  • the recovery, forfeiture or confiscation of property in respect of a serious offence or a foreign serious offence;
  • the restraining of dealings in property, or the freezing of property, that may be recovered in respect of a serious offence or a foreign serious offence;
  • the execution of requests for search and seizure;
  • the location and identification of witnesses and suspects;
  • the service of process;
  • the identification or tracing of proceeds of crime and property and instrumentalities derived from or used in the commission of a serious offence or a foreign serious offence;
  • the recovery of pecuniary penalties in respect of a serious offence or a foreign serious offence; and
  • the examination of things and premises.
 
Mutual assistance under other legislation
Section 4(3) of the Mutual Assistance in Criminal Matters Act 2002 expressly provides that the Act does not prevent the provision or obtaining of international assistance in criminal matters under any other written law.
 
Certain forms of mutual assistance may be provided under-
   
  • Order 66 of the Rules of the High Court 1980 for letters rogatory/letters of request.
   
  • Order 66 is generally limited to civil matters but was extended to criminal matters by the Supreme Court in the cases of Dato’ Mohamed Hashim Shamsuddin v Attorney General, Hong Kong [1986] 2 MLJ 112 and Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288.
  • The form for a letter of request and its enforcement requirements are prescribed in Order 39 of the Rules of the High Court 1980.
   
  • Part VII of the Dangerous Drugs (Forfeiture of Property) Act 1988
   
  • Part VII of the Act gives effect to Malaysia’s obligations under Article 7 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.
  • The Inspector General of Police has been designated as the Central Authority for mutual assistance purposes under the Convention consistent with the provisions of Part VII of the Act.
  • The forms of assistance available under Part VII are wide, from obtaining information, service of process and documents, examination of witnesses by police officers and a Magistrate to the search of premises, seizure of property, interception of communications and the transfer of persons in custody to give evidence in the requesting State.
  • Malaysia has entered into several Memorandums of Understanding for the purpose of implementing its obligations under the Convention, including on mutual assistance. Among the countries with which Memorandums of Understanding have been made are the United States of America, the United Kingdom, Venezuela, Hong Kong and Russia.
     
Form of requests
Countries that have signed and ratified the Treaty on Mutual Legal Assistance in Criminal Matters among Like-minded ASEAN Member Countries should make requests for mutual legal assistance to Malaysia using the sample forms available on the Secretariat for the Treaty’s website.
 
Transmission of requests
Completed requests may be sent by the Central Authority of the country making the request to the following address:

Attorney General of Malaysia
c/o International Affairs Division
Attorney-General’s Chambers
No. 45 Persiaran Perdana
Precinct 4
62100 PUTRAJAYA
MALAYSIA.

In cases of urgent requests, a copy of the request may also be sent by fax to +(603) 8890 5622.
 
Queries in relation to Mutual Legal Assistance
Queries in relation to the making of Mutual Legal Assistance requests or Mutual Legal Assistance in general may be sent to the correspondence address and fax number above.
 
SINGAPORE
 
The Attorney-General’s Chambers is Singapore’s Central Authority for Mutual Legal Assistance in Criminal Matters. The International Affairs Division of the Attorney –General’s Chambers handles and processes all formal requests for assistance in accordance with the provisions of the Mutual Assistance in Criminal Matters Act (Chapter 190A) and any applicable Mutual Legal Assistance Treaty.
 
Types of assistance
Singapore may provide mutual legal assistance in respect of criminal matters including the following:
 
  • Taking of evidence;
  • Obtaining a production order;
  • Request for the attendance of a person;
  • Request for custody of persons in transit;
  • Enforcement of a foreign confiscation order;
  • Search and seizure;
  • Identifying or locating persons; and
  • Service of process.
 
Countries with which Singapore has existing Mutual Legal Assistance Treaties are gazetted as “prescribed foreign countries” under the Act. Such countries may be rendered assistance in accordance with the terms of the relevant Treaty and the Act.
 
Countries which are not gazetted as prescribed foreign countries under the Act may also be rendered assistance upon providing an appropriate undertaking of reciprocity in accordance with section 16(2) of the Act stating that the country will comply with a future request by Singapore to that country for similar assistance in a criminal matter involving an offence that corresponds to the foreign offence for which assistance is sought.
 


Attorney General of Brunei Darussalam
Minister of Law and Human Rights of Republic of Indonesia
Minister of Justice Lao PDR
Attorney General of Malaysia
Central Authority for Rendering Assistance in Criminal Matters among States, Myanmar
Attorney-General's Chambers of Singapore
Minister of Public Security, Socialist Republic of Vietnam
Department of Justice Office of the Chief State Counsel, Philippines
Ministry of Justice Cambodia
Attorney General of Thailand