EXTRADITION ACT 1992

This Act or any part thereof shall apply to—

Where any arrangement referred to in this section is revoked or lapses, the Minister shall, by order published in the Gazette, forthwith certify that fact; and any such order shall be conclusive evidence that the arrangement referred to therein has been revoked or has lapsed, as the case may be, and shall not be questioned in any legal proceedings whatsoever.

Any order made under this section shall be laid before each

House of Parliament as soon as may be after it is made.

An order made under this section shall be conclusive evidence that the arrangement therein referred to complies with the provisions of this Act, and that this Act applies in the case of the country mentioned in the order, and the validity of such order shall not be questioned in any legal proceedings whatsoever.

Special direction of the Minister applying this Act where no order has been made under section 2 3.

Where a country in respect of which no order has been made under section 2 makes a request for the extradition thereto of a fugitive criminal, the Minister may personally, if he deems it fit to do so, give a special direction in writing that the provisions of this Act shall apply to that country in relation to the extradition thereto of that particular fugitive criminal.

Direction of the Minister to apply procedure in section 20

For the purposes of this Act, an extradition offence is an offence, however described, including fiscal offences—

An offence shall also be an extradition offence if it consists of an attempt or a conspiracy to commit, or an abetment of the commission of, any offence described in subsection (2).

Law of a country

if the offence in respect of which his return is sought is of a political character or he proves to the satisfaction of the Sessions Court before which he is brought or of the

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Extradition

Minister that the warrant for his return has in fact been made with a view to try or punish him for an offence of a political character;

if the request for his surrender although purporting to be made for an extradition offence was in fact made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions;

if he might be prejudiced at his trial or punished or imprisoned by reason of his race, religion, nationality or political opinions;

if prosecution for the offence in respect of which his return is sought is, according to the law of that country, barred by time;

unless provision is made by the law of that country, or in the extradition arrangement with that country, that a fugitive criminal who has not had a reasonable opportunity of leaving that country shall not be detained or tried in that country for any offence committed prior to his return, other than the extradition offence proved by the facts on which his surrender or return is based or any lesser offence proved by the facts on which that return was grounded unless the consent of the appropriate authority in the requested country has been obtained; or

unless provision is made by the law of that country, or in the extradition arrangement with that country, that a fugitive criminal who has not had a reasonable opportunity of leaving that country shall not be extradited to another country for trial or punishment for any offence that is alleged to have been committed or was committed before the fugitive criminal’s return to the first mentioned country unless the consent of the appropriate authority in the requested country has been obtained.

Exceptions to political offences

murder or other wilful crime against the person of a Head of State or a member of the Head of State’s immediate family;

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an act which, under a multilateral treaty to which Malaysia and the country seeking the return of the fugitive criminal are parties, constitutes an offence for which a person will be extradited or prosecuted notwithstanding the political character or motivation of such act;

any attempt, abetment or a conspiracy to commit any of the foregoing offences.

When consent of the Minister is necessary

The Minister may call for any additional information or documents as he may require in order that he may be satisfied that the request for his consent under subsection (1) is consistent with the provisions of this Act.

The Minister shall not give his consent under subsection (1)

if he has reasonable grounds for believing that the offence to which the request for consent relates could have been charged prior to the return of such fugitive criminal if due diligence had been exercised.

There shall be furnished with any requisition made for the purposes of subsection (1)—

On receipt of such requisition, the Minister may, by order under his hand and seal, signify to a Magistrate that such requisition has been made and authorize him to issue a warrant for the apprehension of the fugitive criminal.

If the Minister is of the opinion that the offence to which the warrant relates is one of a political character, he may, if he thinks fit, refuse to make any such order, and may also at any time order a fugitive criminal convicted of such offence to be discharged from custody.

Issue of warrants by Magistrate

shall, on receipt of an order made under subsection 12(3), issue a warrant for the apprehension of such fugitive criminal; or

may, where no order has been made under subsection 12(3), issue a provisional warrant for the apprehension of such fugitive criminal on such information and evidence

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and under such circumstances as would, in his opinion, justify the issue of a warrant if the offence had been committed or the fugitive criminal convicted in Malaysia.

For the purposes of paragraph (1)(b), information contained in an international notice issued by the International Criminal

Police Organisation (INTERPOL) in respect of a fugitive criminal may be considered by the Magistrate in deciding whether a provisional warrant should be issued for the apprehension of a fugitive criminal.

Magistrate to report issue of provisional warrant to Minister

The Minister may, if he thinks fit, order the warrant to be cancelled and the person who has been apprehended on the warrant to be discharged.

Procedure in respect of a fugitive criminal apprehended on a warrant issued under paragraph 13(1)(a)

that the case be transmitted to the Sessions Court; and

that the fugitive criminal be remanded in custody prior to his appearance before the Sessions Court.

Procedure in respect of fugitive criminal apprehended on a provisional warrant

Upon receipt of the order of the Minister signifying that a requisition has been made for the return of the fugitive criminal, the Magistrate shall order—

The Magistrate shall, where he has not received from the

Minister within such period of time as he may fix under subsection

an order signifying that a requisition has been made for the return of the fugitive criminal, order that the fugitive criminal be discharged.

Procedure in respect of a fugitive criminal apprehended on a provisional warrant when order has been received by the

Magistrate

that the case be transmitted to the Sessions Court; and

that the fugitive criminal be remanded in custody until his appearance before the Sessions Court.

Powers and jurisdiction of Sessions Court

that he did not do or omit to do the act alleged to have been done or omitted by him;

that he is not the person against whom the warrant was issued in the country which seeks his return;

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that the alleged act or omission is not an extradition offence in relation to the country which seeks his return;

that the offence is of a political character, or that the proceedings are being taken with a view to try or punish him for an offence of a political character;

that the offence is an offence under military law which is not also an offence under the general criminal law;

that the alleged act or omission does not constitute an offence under the law of Malaysia;

that his return would not be in accordance with the provisions of this Act;

that he has been previously convicted or acquitted or pardoned by a competent tribunal or authority in the country which seeks his return or in Malaysia in respect of the alleged act or omission; or

that the request for his surrender was made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions, or that he might be prejudiced at his trial or punished or imprisoned by reason of his race, religion, nationality or political opinions.

Nothing in this section shall limit the power of the Sessions

Court to receive any other evidence that may be tendered to show that the fugitive criminal should not be returned.

For the purposes of paragraph (2)(d), the Sessions Court may receive such evidence as in its opinion may assist it in determining the truth, whether or not such evidence is otherwise legally admissible in a court of law.

If the Sessions Court is of the opinion that a prima facie case is not made out in support of the requisition of the country concerned, the Court shall discharge the fugitive criminal.

If the Sessions Court is of the opinion that a prima facie case is made out in support of the requisition of the country concerned, the Court shall commit the fugitive criminal to prison to await the order of the Minister for his surrender, and shall report the result of its inquiry to the Minister; and shall forward together with such report any written statement which the fugitive criminal may desire to submit for the consideration of the Minister.

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Extradition

Procedure before Sessions Court where a special direction has been given under section 4

after hearing any representation made in support of the extradition request;

upon the production of supporting documents in relation to the offence;

upon being satisfied that the alleged act or omission of the fugitive criminal would, if it had taken place in Malaysia, constitute an offence under the laws of Malaysia;

if the fugitive criminal does not satisfy the Court that there are substantial grounds for believing that—

the offence is an offence of a political character, or that the proceedings are being taken with a view to try or punish him for an offence of a political character;

the fugitive criminal has undergone the punishment provided by the law of the country which seeks his return or of Malaysia in respect of the extradition offence or any other offence constituted by the same conduct as that which constitutes the extradition offence;

upon being satisfied that the fugitive is not accused of an offence, nor undergoing a sentence in respect of an offence, in Malaysia, other than the extradition offence in respect of which his return is sought, commit the fugitive criminal to prison to await the order by the

Minister for his surrender.

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In the proceedings before the Sessions Court under subsection

the fugitive criminal is not entitled to adduce, and the Court is not entitled to receive, evidence to contradict the allegation that the fugitive criminal has done or omitted to do the act which constitutes the extradition offence for which his return is sought.

In this section, “supporting documents” means—

Upon the expiration of the period referred to in subsection

or, if an application for a writ of habeas corpus has been made to the High Court by the fugitive criminal, upon the final determination of such application by the High Court or after such further period as may be allowed in either case by the Minister, the Minister shall—

It shall be lawful for any person to whom such warrant is directed and for the person so authorized as aforesaid to receive, hold in custody and convey, within the jurisdiction of the country which made the requisition for his return, the fugitive criminal and if the fugitive criminal escapes out of any custody to which he may be surrendered in pursuance of such warrant, it shall be lawful to retake him in the same manner as any person accused of any crime against the laws of Malaysia may be retaken upon an escape.

Waiver of committal proceedings by fugitive criminal

ascertain whether the consent is given voluntarily;

upon being satisfied that such consent is given voluntarily, advise the fugitive criminal that the effect of so consenting will be that—

he will be committed to prison;

If, after the fugitive criminal has been advised in accordance with paragraph (1)(b), the fugitive criminal again consents to the waiver, the Court shall commit the fugitive criminal to prison to await the warrant of the Minister under subsection (3).

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The Minister may, at any time after a fugitive criminal has been committed to prison, issue—

Section 36 shall not apply to a fugitive criminal committed to prison under this section.

Depositions to be evidence

if the warrant purports to be signed by a Judge, Magistrate or officer of the country where the same was issued;

if the depositions or statements or the copies thereof purport to be certified under the hand of a Judge, Magistrate or officer of the country where the same were taken to be the original depositions or statements, or to be true copies thereof, as the case may require; or

if the certificate of or judicial document stating the fact of conviction purports to be certified by a Judge, Magistrate or officer of the country where the conviction took place;

and if in every case the warrant, depositions, statement, copies, certificates and judicial documents (as the case may be) are authenticated by the oath of some witness or being sealed with the

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Extradition official seal of the Minister of Justice or some other Minister of

State; and all courts in Malaysia shall take judicial notice of such official seal and shall admit the documents so authenticated by it to be received in evidence without further proof.

In this Part, “offence” means a seizable offence or an offence punishable, on conviction, with imprisonment for a term exceeding six months under the laws of Brunei Darussalam or the Republic of Singapore.

Endorsement of warrant issued in Brunei Darussalam or

Singapore

There shall be furnished with any requisition made under subsection (1) particulars of the fugitive criminal whose return is requested and of the facts upon which and the law under he is accused as well as adequate undertakings to the effect that—

Notwithstanding subsection (2), the Minister may require the country concerned to give such other undertakings as he may specify.

Notwithstanding anything in any written law, the Minister, upon being satisfied that the requirements of subsection (2) have been met, may, by order under his hand and seal, authorize that the fugitive criminal be removed from his place of imprisonment and brought before the Sessions Court for an inquiry under section 19.

Fugitive criminal ceases to be liable to serve the sentence in

Malaysia, time spent in custody in connection with issue of temporary surrender warrant

Any time spent by the fugitive criminal in custody in connection with the warrant issued under paragraph 21(2)(a) (including time spent in custody outside Malaysia) shall be counted as time served towards the sentence or sentences of imprisonment referred to in subsection 29(1).

Issue of warrant by Minister

a fugitive criminal is returned to a country under a temporary surrender warrant and thereafter returned to Malaysia in pursuance of the undertakings referred to in subsection 29(2); and

the country concerned still seeks the return of the fugitive criminal after he has served his sentence in Malaysia, the Minister may, in his discretion, issue a surrender warrant for the return of the fugitive criminal to that country.

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be detained or tried in Malaysia for any offence that is alleged to have been committed, or was committed, prior to the return of such person, other than—

the extraditable offence in respect of which he is returned;

be extradited by Malaysia to another country for trial or punishment for any extradition offence that is alleged to have been committed, or was committed, before the return of the person to Malaysia unless, where so required by the country that returned the person to Malaysia, that country’s consent has been obtained.

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Extradition

Persons temporarily returned to Malaysia

shall, while travelling to and from, and while in Malaysia, be kept in custody as the Minister orders in writing and the Minister may make such an order notwithstanding anything in any written law to the contrary; and

shall not be tried in Malaysia in respect of any offence other than an offence proved by the facts on which the return is based or any lesser offence proved by the facts on which that return was grounded or, with the consent of the country which returned him, any other extraditable offence.

Where—

Where the Public Prosecutor desires to make such an application, he shall, at the time of the making of the order of discharge by the Sessions Court, give to the Court notice of his intention to apply to the High Court for a review of the order, and such notice shall operate as a stay of the order of discharge by the

Sessions Court—

Where the Public Prosecutor gives notice of his intention to apply for a review of the order of the Sessions Court, the Court may grant, to the fugitive criminal in respect of whom the order of discharge was made, bail pending the determination by the High

Court of the application.

Upon application for a review of the order of discharge, the

Sessions Court Judge shall transmit to the High Court the exhibits tendered before him, the evidence admitted in Court, the reasons for his decision and his finding on any question of law which arose during the inquiry.

The High Court to which an application is made for a review of an order of discharge may order the release on bail of the fugitive criminal on such terms and conditions as the Court thinks fit pending determination of the application for review.

The High Court may confirm, vary or quash the order or make a new order in substitution for the order so quashed, and any such order of the High Court shall be final and conclusive.

Where the Public Prosecutor has issued a written authorization under subsection (1), the provisions in any written law pertaining to the admission of advocates and solicitors and the right of advocates and solicitors to appear in all courts of justice in Malaysia shall not apply to the person named in such authorization.

The person named in the written authorization shall comply with any directions that may be issued by or on behalf of the

Public Prosecutor.

The power given to the Public Prosecutor to issue a written authorization under subsection (1) includes the power to revoke, cancel or suspend such written authorization.

Jurisdiction as to offences committed at sea or in air

a deferment of its delivery if it is needed as evidence in

Malaysia;

an undertaking for its return to Malaysia upon request;

the rights, if any, of third parties with respect thereto.

Everything mentioned in subsection (1) may be delivered even when the extradition of the fugitive criminal cannot be effected due to his death, disappearance or escape subject to the conditions mentioned in that subsection.

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Extradition

Forms

the trivial nature of the case; or

the application for the return of a fugitive criminal not being made in good faith or in the interests of justice or being made for political reasons, or for any other reason, it would, having regard to all the circumstances, be unjust or oppressive to return the fugitive criminal, he may, by order, at any time, stay any proceedings under this Act and direct any warrant issued or endorsed under this Act to be revoked and the person for whose arrest the warrant has been issued to be discharged.

Simultaneous requisitions

The Minister, in determining to which country the fugitive criminal should be returned, shall consider all the circumstances of the case and in particular—

the fugitive criminal is a citizen of Malaysia; or

the extradition offence is one in respect of which the courts in Malaysia have jurisdiction.

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Where extradition is refused under subsection (1), the Minister shall, if courts in Malaysia have jurisdiction over the extradition offence, submit the case to the Public Prosecutor with a view to having the fugitive criminal prosecuted under the laws of Malaysia.

Taking of evidence for purpose of criminal matters pending in a country

Upon the receipt of such order, the Magistrate shall take the evidence of every witness appearing before him for the purpose referred to in subsection (1) in like manner as if such witness appeared on a preliminary enquiry into the case of a person accused of an offence triable by the High Court and shall certify at the foot of the depositions so taken that such evidence was taken before him and shall transmit the same to the Minister.

The evidence referred to in subsection (1) may be taken in the presence or absence of the accused person, if any, and the fact of such presence or absence shall be stated in such depositions.

This section shall not apply in the case of any criminal matter of a political character.

Witnesses to attend and give evidence, etc.

Upon receipt of the order, the Magistrate shall—

The person against whom the warrant of arrest has been issued under subsection (1) is not entitled to make any representation or cause any representation to be made in the proceeding under subsection (2).

Rules

any matter which is required to be, or may be, prescribed under this Act;

the removal of fugitive criminals accused or in custody under this Act and their control and maintenance until such time as they are handed over to the persons named in the warrants as entitled to receive them;

the seizure and disposition of any property which is the subject of, or required for proof of, any alleged offence to which this Act applies;

the form and manner in which, or the channel through which, a Magistrate may be required to make his report to the Minister; and

the removal and return of fugitive criminals who are also prisoners for their temporary surrender to a country.