Malaysia legislation
Section 26
of ANTI-MONEY LAUNDERING AND ANTI-TERRORISM FINANCING (AMENDMENT) ACT 2014
Section 26
New Part IVa
The principal Act is amended by inserting after Part IV the following Part:
“Part IVa
CROSS BORDER MOVEMENTS OF CASH AND BEARER
NEGOTIABLE INSTRUMENTS
Interpretation in relation to this Part 28a. (1) In this Part, unless the context otherwise requires—
“business day” means—
(a)
in States where Sunday is observed as the weekly holiday, a day other than a Saturday, Sunday or public holiday; or
(b)
in States where Friday is observed as the weekly holiday, a day other than a Friday, Saturday or public holiday;
“bearer negotiable instrument” includes—
(a)
a traveller’s cheque;
(b)
any negotiable instrument in bearer form, endorsed without any restriction, made out to a fictitious payee or otherwise in such form that title of such instrument passes upon delivery; and
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(c)
any negotiable instrument that is signed but the name of the payee is omitted;
“authorised officer” means an officer of customs or an officer authorised by the competent authority to perform or assist in the performance of its functions under this Part;
“officer of customs” has the same meaning as in the
Customs Act 1967 [Act 235];
“commercial goods carrier” means a person who, in the normal course of a business, carries goods or mail for reward, and includes his employee;
“commercial passenger carrier” means a person who, in the normal course of a business, carries passengers for reward, and includes his employee;
“cash” means coin and printed money (whether of Malaysia or of a foreign State) that—
(a)
is designated as legal tender; and
(b)
circulates as, and is customarily used and accepted as, a medium of exchange in the country of issue;
“printed money” means money comprising a note printed, written or otherwise made on polymer, paper or any other material.
(2)
In determining whether an amount of cash or bearer negotiable instruments exceeds the value prescribed by the competent authority under this Part, such amount shall be converted to the currency prescribed by the competent authority at the rate of exchange applicable at the relevant time.
Persons leaving or entering Malaysia with cash or bearer negotiable instruments 28b. (1) Any person leaving or entering Malaysia with an amount in cash, bearer negotiable instruments or both exceeding the value as prescribed by the competent authority by order published in the Gazette, shall declare such amount to the competent authority.
(2)
For the purposes of this section, a person leaves or enters Malaysia with cash or bearer negotiable instruments if the person brings the cash or bearer negotiable instruments with him in his accompanying baggage or on any conveyance or otherwise.
(3)
Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both.
Movement of cash or bearer negotiable instruments by post, etc.
Quoted provision
Section 28c
(2)
Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both.
Exceptions to requirement to make declaration 28d. (1) Section 28b shall not apply if—
(a)
the person is a commercial passenger carrier; and
(b)
the cash or bearer negotiable instrument is in the possession of the commercial passenger carrier’s passenger.
(2)
Section 28c shall not apply if—
(a)
the person is a commercial goods carrier;
(b)
the cash or bearer negotiable instrument is carried on behalf of another person;
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(c)
the other person has not disclosed to the commercial goods carrier that the goods carried on his behalf include cash or bearer negotiable instruments;
and
(d)
the commercial goods carrier does not know and has no reasonable ground to believe that the goods carried on behalf of the other person include cash or bearer negotiable instruments.
(3)
The burden of proving the matters referred to in subsection (1) or (2) lies with the person who wishes to rely on that subsection.
Declaration about receipts of cash or bearer negotiable instruments from outside Malaysia 28e. (1) Any person who receives cash or bearer negotiable instruments or both which is moved to the person from outside Malaysia exceeding the value as prescribed by the competent authority by order published in the Gazette, shall declare such amount to the competent authority and provide such other information as may be required by the competent authority.
(2)
A declaration under subsection (1) shall be made within five business days from the day of the receipt of the cash or bearer negotiable instruments or both.
(3)
Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both.
Declaration to competent authority 28f. (1) A declaration to the competent authority under this
Part shall—
(a)
be made in such form as the competent authority may specify; and
(b)
contain full and accurate information relating to the matter being declared as is specified in the form.
(2)
A declaration under this Part, except under section 28e, shall be made to the competent authority through an authorised officer.
(3)
An authorised officer shall make available to the competent authority, upon the request of the competent authority, within a reasonable time—
(a)
any declaration submitted to the authorised officer;
or
(b)
any information about suspicious cross border movements of cash or bearer negotiable instruments.
(4)
Any person who makes a declaration which is false, inaccurate or incomplete commits an offence and shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both.
Structuring to avoid declaration under this Part 28g. (1) No person shall structure, or direct, assist or participate in structuring any cross border transportation or movements of cash or bearer negotiable instruments to avoid making a declaration under this Part.
(2)
Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine of not more than five times the aggregate sum or value of the amount of cash or bearer negotiable instruments at the time the offence was committed or to imprisonment for a term not exceeding seven years or to both.
Questioning and search powers in relation to cash or bearer negotiable instruments 28h. (1) Any person leaving or entering Malaysia shall if required to do so by an authorised officer do all or any of the following:
(a)
declare whether or not the person has with him any cash or bearer negotiable instruments;
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(b)
declare the total value of any cash or bearer negotiable instruments that the person has with him;
(c)
declare whether or not a declaration under section 28b has been made in respect of any cash or bearer negotiable instruments that the person has with him;
(d)
produce to the authorised officer any cash or bearer negotiable instruments that the person has with him;
(e)
answer any question that the authorised officer may have with respect to the cash or bearer negotiable instruments.
(2)
An authorised officer may, with such assistance as is reasonable and necessary—
(a)
search a person or examine any article, baggage or property which the person has with him for the purpose of finding out whether a person has with him any cash or bearer negotiable instruments in respect of which a declaration under section 28b is required to be made;
(b)
enter any premises and examine or search the premises for the purposes of ascertaining whether there is at or in the premises any cash or bearer negotiable instruments in respect of which a declaration under section 28b or 28c is required to be made;
(c)
board any conveyance and examine or search the conveyance for the purpose of ascertaining whether there is on board the conveyance any cash or bearer negotiable instruments in respect of which a declaration under section 28b or 28c is required to be made;
(d)
open, examine or search any article, container, package, receptacle or any thing found at or in the premises or on the conveyance for the purpose of ascertaining whether or not there is any cash or bearer negotiable instrument in respect of which a declaration under section 28b or 28c is required to be made;
(e)
detain any cash, bearer negotiable instruments or any other thing found in the course of an examination or search under paragraph (a), (b), (c) or (d) if an authorised officer has reason to suspect that such cash, bearer negotiable instruments or other thing may afford evidence relating to the commission of an offence under this Part; or
(f)
take possession of, and remove from the premises or conveyance, any cash, bearer negotiable instruments or other thing so detained.
(3)
No person shall be searched under this Part except by an authorised officer of the same gender and such search shall be carried out with strict regard to decency.
(4)
Any person who, without reasonable excuse, fails to comply with a requirement under subsection (1), or pursuant to any such requirement knowingly or recklessly makes a declaration or gives an answer that is false in a material particular, commits an offence and shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both, and, in the case of a continuing offence, shall in addition be liable to a fine not exceeding three thousand ringgit for each day or part thereof during which the offence continues to be committed.
(5)
Any person who fails to comply with any lawful demands of any authorised officer in the exercise of his powers under this Part commits an offence and shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both, and, in the case of a continuing offence, shall in addition be liable to a fine not exceeding three thousand ringgit for each day or part thereof during which the offence continues to be committed.
Power of arrest without warrant 28i. An authorised officer investigating an offence under this Part may arrest without warrant any person whom he reasonably believes has committed or is attempting to commit an offence under section 28b or 28c.
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Submission of information to competent authority 28j. Notwithstanding the Central Bank of Malaysia Act 2009, the Financial Services Act 2013 and the Islamic Financial
Services Act 2013, the Bank may submit to the competent authority information received under section 214 of the
Financial Services Act 2013 and section 225 of the Islamic
Financial Services Act 2013.
Declaration under this Part deemed to be a declaration in a matter relating to customs 28k. Any declaration required to be made under this Part, except under section 28e, shall for the purposes of the Customs
Act 1967 be deemed to be a declaration in a matter relating to customs.
Forfeiture of detained cash or bearer negotiable instruments 28l. (1) Subject to section 61, in any prosecution for an offence under this Part, the court shall make an order for the forfeiture of the cash, bearer negotiable instruments or any other thing which is proved to be the subject-matter or evidence relating to the commission of the offence as it considers appropriate notwithstanding that no person may have been convicted of such offence.
(2)
Subject to section 61, where in respect of any cash, bearer negotiable instrument or any thing used in the commission of an offence seized under this Part there is no prosecution or conviction for an offence under this Part, the Public Prosecutor shall, before the expiration of twelve months from the date of the seizure, apply to a judge of the High Court for an order of forfeiture of the cash, bearer negotiable instrument or thing, as the case may be, if he is satisfied that the cash, bearer negotiable instrument or thing is the subject-matter or evidence relating to the commission of such offence.
(3)
The judge to whom an application is made under subsection (2) shall make an order for the forfeiture of the cash, bearer negotiable instrument or any other thing used in the commission of an offence if he is satisfied that the cash, bearer negotiable instrument or thing is the subject-matter or evidence relating to the commission of an offence under this Part.”.
Amendment of section 29