PREVENTING CROSS BORDER BRIBERY WITHIN THE ASEAN ECONOMIC COMMUNITY

by :

Deputy Commissioner Ahmad Khusairi Yahaya Director of Intelligence

Malaysian Anti-Corruption Commission

MALAYSIAN ANTI-CORRUPTION COMMISSION (MACC)

Cross Border Crime

The criminal offense of intentionally and secretively bringing an item into a country without declaring it to customs officials and paying the associated duties or taxes, or of bringing a prohibited item into a country.

Smuggling

All acts involved in the recruitment, abduction, transport, harboring, transfer, sale or receipt of persons, within national or across international borders, through force, coercion, fraud or deception, to place persons in situations of slavery or slavery-like conditions, forced labor or services, such as forced prostitution or sexual services, domestic servitude, bonded sweatshop labor, or other debt bondage."

Human Trafficking

An illegal entrant being a person unlawfully entering, or seeking to enter, in breach of a deportation order or of the immigration laws and includes a person who has so entered

Illegal Immigrant

“Cross Border" or "transnational crime" defined as acts which

violate the laws of more than one county.

Cross Border Crimes are crimes that have

actual or potential effect across national

borders and crimes that are intrastate but

offend fundamental values of the international community.

“The International Organization for Migration (IOM) estimated that in 2012, there were about 200 million emigrants from all over the world and most of the emigrants migrated through illegitimate crossed-borders immigration which is guessed of 20 to 30 million people”

(The International Organization for Migration Policy Development, IOM 2007, 2008).

“The Malaysian Border Protection Agency (Aksem), which is manning the country’s borders, had noticed that drugs were fast becoming a commodity, with RM6 million worth of substances being smuggled in within the first month of the year.”

Amin Mokhtar, 5 August 2016, Smugglers' paradise: Billions in contraband crossing our borders. New Straits Time Online.

“As for illegal firearms, we don’t even have an estimate of how many there are but it was revealed in other reports that they could be smuggled into the country through 200 known lorong tikus or hidden entry points along Malaysia’s porous border.”

SM. Mohamed Idris, 21 July 2016, Call for royal commission of inquiry on firearms. The Star Online.

“For the past five years, the illicit trade involving “favourite” contraband, such as cigarettes and alcohol (RM47 million), vehicles (RM46 million), firecrackers (RM7 million), diesel and petrol (RM3 million), and rice (RM2.7 million), is also thriving. The agency had seized RM105.7 million worth of those contraband at the nation’s borders”

Amin Mokhtar, 5 August 2016, Smugglers' paradise: Billions in contraband crossing our borders. New Straits Time Online.

Issues & How Serious?

Rice Firearms

Petrol SMUGGLING Drugs

Sugar Goods

Diesel

Labor TRAFFICKING

Prostitution

GRO Wildlife

Malaysia Law Enforcement In The Border

Involvement

Royal Customs Malaysia

Anti-Smuggling

Unit

/

Border Control Agency

Immigration Department

General Operations

Force (Police) Police

Road Transport Department

Min. of Domestic Trade Co-

Operatives

& Consumerism

Cross Border Crime and Corruption

“Organised trafficking cannot take place without corruption. Human trafficking occurs with the collusion of corrupt officials with criminal gangs.”

OECD, 2016, Human trafficking and corruption.

“While considerable steps have been taken to combat trafficking in persons, these have not comprehensively focused on the fundamental role that corruption plays in the trafficking process. The approach of addressing these two issues jointly coupled with better cross border co-operation, better enforcement and an increased focus on combatting corruption is key to effectively curb trafficking in persons”

OECD, 2016, Trafficking in Persons and Corruptions Breaking the Chain Highlights. OECD Public Governance Review.

“Trafficking in persons is one of the most lucrative forms of organised crime. Similarly to illicit trade in general, organised trafficking requires systematic corruption.”

OECD, 2016, Human trafficking and corruption.

Malaysia - Thailand Border

Wang Kelian, Perlis

Wang Prachan,

Satun

Padang Besar, Perlis

Padang Besar,

Songkhla

Bukit Kayu Hitam, Kedah

Sadao, Songkhla

Pengkalan Hulu, Perak

Betong, Yala

Ban Buketa,

Narathiwat

Bukit Bunga,

Kelantan

Rantau Panjang, Kelantan

Sungai Golok,

Narathiwat

Pengkalan Kubur,

Kelantan

Tak Bai, Narathiwat

MACC Power

Function of officers of the Commission shall have the following functions:

• To receive and consider any report and investigate

• To detect and investigate any suspected offence , attempt , conspiracy

• To examine the practices, systems and procedures in order to facilitate the discovery of offences under this Act

• To instruct, advise and assist any person, on latter’s request , on ways in which corruption may be eliminated

• To advise of any changes in practices, systems or procedure compatible with effective discharge of the duties

• To educate the public against corruption

• To enlist and foster public support against corruption

Section 7, Malaysian Anti-Crorruption Commission Act 2009.

MACC Power In line with its existence as a single entity against corruption in Malaysia, MACC jurisdictions under the Malaysian Anti-Corruption Commission Act 2009 is dedicated to investigate and prevent any form of corruption and abuse of power.

MACC Act 2009, also provides power to the MACC to investigate any offense under other acts listed as "Prescribed Offence" as follows: -

• An offense punishable under section 161, 162, 163, 164, 165, 213, 214, 215, 384, 385, 386, 387, 388, 389, 403, 404, 405, 406, 407, 408, 409, 417 , 418, 419, 420, 465, 466, 467, 468, 469, 471, 472, 473, 474, 475, 476 and 477A of the Penal Code;

• An offense punishable under section 137 of the Customs Act 1954;

• Offences under Part III of the Election Offences Act 1954;

• An attempt to commit any of the offenses referred to in paragraphs (a) to (c); or

• An abetment or conspiracy to commit a crime (as that term was defined in the Penal Code) any offense referred to in paragraphs (a) to (c), whether or not the offense is committed in consequence thereof.

MACC POWER - INTELLIGENCE PROCESS

Information Received

Contact Note & Intelligence Envelope

credible information

Intelligence Paper

Investigation Paper

Inspection Paper

Profiling

NFA

yes

proceed

Project Paper

The stage of developing information via Contact Note and Intelligence envelope to a quality

information.

The stage of analysing information developed for verification and further action recommendation.

Information Received

Contact Note & Intelligence Envelope

credible information

Intelligence Paper

Profiling

MACC POWER - PROACTIVE INVESTIGATION PROCESS

PR

OA

CT

IVE

AP

PR

OA

CH

/ IB

I C

ON

CE

PT

MACC Past Operations

Ops Rainbow

• Information received saying that prevailing corruption by staffs of the Police, Customs, Anti-Smuggling Unit and Patrol Police in Rantau Panjang Immigration Complex and Anti-Smuggling Unit in Lubuk Stol Rantau Panjang. The enforcement officers received bribes between RM100 to RM200 from vans and lorries carrying goods from Thailand to Malaysia. This activities take place every day.

Information

• Intelligence Division has launched Ops Rainbow. Action

• 10 arrests were made. 2 were charged under section 17 (a) of the MACC Act 2009 and both pleaded guilty. Outcome

Ops Rainbow Thailand

General Operation Force

Road Transport Deparment Inspection

Immigration Inspection

Anti-Smuggling Unit Inspection

Custom Inspection

RM10

RM100

Movement without passport stamping

RM100

Rasuah RM20

Anti-Smuggling Unit Post Chabang Empat Salam

(CIQ Complex Rantau Panjang)

Malaysia

Ops Licin 2 (Smooth)

• Information received saying that there were officers and staffs of law enforcement agencies such as the General Operations Force, the Royal Malaysian Police, Anti-Smuggling Unit, the Royal Malaysian Customs, the Immigration Department of Malaysia and the Ministry of Domestic Trade , Cooperatives and Consumerism Ministry on duty at the Malaysia Thailand border in Kota Putra (Durian Burung) and Bukit Kayu Hitam, Kedah requested and received bribes between RM 50.00 to RM 4,000.00 from illegal store petrol and diesel business in Durian Burung, Kedah as an inducement not to take any legal action on the activity and sales and smuggling of gasoline and diesel oil to Thailand.

Information

• Intelligence Division has launched an operation called Ops Licin 2 by placing an Undercover Officer (UCO) to work with illegal business of diesel / petrol in Kedah. Action

• 40 Arrests were made, including officers and staffs of Royal Customs Malaysia , Anti-Smuggling Unit , General Operations Force, Ministry. Outcome

Ops Licin 2 (Smooth)

Ops Licin 2 (Smooth)

Ops Tanker

• The owners of gas stations and mini pump were operating illegally in the Bukit Kayu Hitam was running the smuggling of subsidized diesel by lorries and pick-up Thailand. To facilitate and protect their activities, the payment of bribes on a monthly basis by middlemen (runner) to officials at the Ministry of Domestic Trade, Cooperatives and Consumerism Ministry and the Anti-Smuggling Unit, the Royal Malaysian Police Kedah.

Information

• Intelligence Division has launched an operation called Ops Tanker . Action

• 10 arrests were made, including officers and staffs of Ministry of Domestic Trade, Cooperatives and Consumerism Ministry and the Anti-Smuggling Unit the Royal Malaysian Police Kedah. Outcome

Ops Tanker

OPS CLONE

Collaboration

Country/Agency(s):

Independent Commission Against Corruption (ICAC), Hong Kong

Offence: Accused did not declare his current and fixed savings

Assistance Needed: To seek confirmation of information on saving funds of accused in Hong

Kong & Shanghai Bank (Hong Kong)

Result(s): ICAC Hong Kong has confirmed that accused has an account in Hong Kong

& Shanghai Bank (Hong Kong)

Status of Case: Accused was charged in the Kuala Lumpur Session Court, Malaysia

INFORMAL ASSISTANCE

Collaboration

Country/Agency(s):

Corrupt Practices Investigation Bureau (CPIB), Singapore

Offence: Accused was caught for offering bribe to the Head of Immigration on duty at

Singapore's Tuas Checkpoint

Assistance Needed: To arrest accused and issue Arrest Warrant which was issued by the

Singapore Magistrate Court

Result(s): Accused was officially handed in by the representative of MACC to the CPIB

Singapore Officers

Status of Case: Accused pleaded guilty to both counts

SUMMONS AND WARRANTS ACT 1971

Collaboration

Country/Agency(s):

Ministry of Justice, Japan; Federal Office of Justice, Switzerland and

Independent Commission Against Corruption (ICAC), Hong Kong

Offence: Accused committed breach of trust upon a property owned by Perwaja

Rolling Mill & Development Sdn Bhd

Assistance Needed: To obtain documents and evidence of several key witnesses in Japan,

Switzerland and Hong Kong

Result(s): Documents and evidence of witnesses involved in Japan, Switzerland and

Hong Kong were successfully obtained

Status of Case: Accused was charged in Session Court, Kuala Lumpur, Malaysia

Value of Gratification: USD24,724,920 million

MUTUAL LEGAL ASSISTANCE

Collaboration Country/Agency(s): Corruption Eradication Commission (CEC), Indonesia

Offence: To trace a witness in Indonesia to attend a trial in Malaysia

Result(s): The witness managed to be traced in a remote village called Ponorogo,

Jakarta

Status of Case: The case which was postponed, is now able to be proceeded and is at

present in proceeding

MUTUAL LEGAL ASSISTANCE

Collaboration

Country/Agency(s):

Scotland Yard, United Kingdom

Offence: The signing of “Consultancy Agreement” with an offshore company and the issue

of a bond certificate for securing financial resources

Assistance Needed: To take the testimony of two British witnesses

Result(s): Two British witnesses were identified and information was successfully obtained

Status of Case: Accused were charged in Kuala Lumpur Session Court, Malaysia

Value of Gratification: USD5 billion worth of bond

LAW ENFORCEMENT COOPERATION

Collaboration Country/Agency(s): National Anti-Corruption Unit, South Africa

Offence: The suspect committed breach of trust for his personal investment

Assistance Needed: To obtain several documents from financial institutions and interview

several key witnesses in South Africa

Result(s): A number of documents were obtained from the financial institutions

involved in South Africa. Several key witnesses were also interviewed

Status of Case: Accused was charged on three counts

Value of Gratification: USD12,944,984 million

LAW ENFORCEMENT COOPERATION

Collaboration Country/Agency(s): Anti-Corruption Bureau, Brunei Darussalam

Offence: One syndicate using Malaysian registered vehicles involving smuggling of

diesel to Sarawak, Malaysia

Assistance Needed: Undercover Operation to obtain evidence

Result(s): Information were obtained including names and activities of Custom

Officers involved

Status of Case: 3 arrests were made

JOINT INVESTIGATIONS AND SPECIAL INVESTIGATIVE TECHNIQUES

Collaboration Country/Agency(s): Anti-Corruption Bureau, Brunei Darussalam

Offence: Between 40 to 50 registered 4WD vehicles were involved in smuggling

diesel almost daily from Kuala Belait, Brunei Darussalam to Miri,

Malaysia

Assistance Needed: To obtain information pertaining to records of 4WD vehicles

Result(s): Information were obtained including names and activities of Custom

Officers involved.

Status of Case: 42 arrests were made

Accused/Value of Gratification: Variation of amounts

JOINT INVESTIGATIONS AND SPECIAL INVESTIGATIVE TECHNIQUES

Collaboration WORLDWIDE

Offence: Human Trafficking

Assistance Needed: To obtain information pertaining to human trafficking

The Link: Studies have shown that there is a link between corruption and human

trafficking. In eradicating corruption, we may also eradicate human

trafficking. This can only be done if there is International Cooperation.

International Cooperation depends on the political will of governments.

FUTURE COLLABORATION

Stories behind the MACC experiences: International agreements such as Memorandum of Understanding to help translate political

attention to the problem into action to address the problem of corruption Maximising personal direct contact between officers in different countries Increased use of modern technology to expedite requests and assistance, coupled with using the

most modern mechanisms in a resource effective manner.

We are laying the groundwork for future success stories, and hope that, someday in the future, this

relatively anti-corruption diplomacy may be viewed as the real turning point in the international fight against corruption

Issues and Challenges • Involvement of various organisation with various roles in cross border crime range from public

officials such as police, customs, border control, immigration services and other law enforcement agencies.

• Limitation of power in investigation and legal privilege. More than crime where in some instances it involves the state or country

• Limitation and barriers on information and communication in order to get clearer and wider view of the crime.

• The human factor cause such as personal greed and the level of integrity.

• Culture and environments that perceived smuggling and trafficking in some way has become a way of life

• The complex nature of the cross border crime;

• Corruption is a victimless crime which do not directly violate or threaten the rights of any other individual. It is a crime to the state

• Secretive by the nature of the work

• Criminals or syndicate are well financed and highly organised

Malaysia’s Approaches and Solutions

Series of operation on Cross Border Crime by MACC with other enforcement agencies

Operation by Enforcement

“In line with Article 48 of the United Nations Convention against Corruption (UNCAC), the MACC and NACC has taken the initiative to sign a Memorandum of Understanding (MoU) in 2012. This MoU agreement manifests the commitment of both institutions to foster long standing relation, where both parties pledged to support one another in the prevention of and fight against corruption, and to work together in fostering anti-corruption prevention measures. He also noted that the MACC and Thailand's National Anti-Corruption Agency (NACC) had a bilateral meeting for the first time in April, where both agencies agreed to increase the effectiveness in combating corruption along the Malaysia-Thailand border.”

www.sea-pac.org, 2 November 2015, First Bilateral And Working Group Meeting Between The Malaysian Anti-Corruption Commission (MACC) And National Anti-Corruption Commission (NACC) Of Thailand (22-23 October 2015).

MOU / Bilateral Meeting

Inspection and Consultation Division had carried out an investigation into human trafficking in the country in 2014. "The MACC has found several weaknesses in terms of the safety control management system and procedures, and checks of people and vehicle movements along the Malaysia-Thailand border, especially in Kedah and Perlis."In MACC's view, if these weaknesses are not tackled holistically, it would open an opportunity for corruption," he said.

B. Cheah, 4 June 2015, Recommendations made by MACC to curb human trafficking. The Sun Daily.

Inspection and Recommendations

“Based on these recommendations, Abu Kassim said he had chaired a task force enforcement agency to discuss preventive measures on human trafficking, as well as smuggling, with several senior officers from the Home Ministry, Domestic Trade, Consumerism and Cooperatives Ministry, the police, the Royal Customs Department, Immigration Department, National Security Council and Malaysia Maritime Enforcement Agency.”

B. Cheah, 4 June 2015, Recommendations made by MACC to curb human trafficking. The Sun Daily.

Meeting (Task Force) With

Agencies

“The Malaysian Border Security Agency (Aksem) will enforce security control along the Malaysia-Thailand border under a special legislation that will be tabled in Parliament at the end of this year. Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, who announced this, said the new Act would empower Aksem in enforcing the law pertaining to border security.”

25 May 2016, New Act soon to tighten security at Thai border. The Star Online.

New Agency & New Act

Malaysia will take proactive measures and cooperate with Thailand to tackle several cross-border security issues in both nations. Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi said, in his meeting with his counterparts here, both Thai Deputy Prime Ministers Wissanu Krea-ngam as well as Prawit Wongsuwan, who is also Defence Minister, had agreed to give their full cooperation to Malaysian authorities in addressing dual citizenship and international transfer of prisoners, among others.”

Hana Naz Harun, 5 August 2016, Malaysia, Thailand agree to cooperate on cross border security issues. New Straits Time Online.

Governments Cooperation

Malaysia’s Approaches and Solutions

Recommendation of Solutions

• Strengthen the legal basis against corruption and cross border crime. It is important that national legislation on cross border crime is in line with international standards concerning the issues.

• Jointly addressing and investigating trafficking in persons and corruption with

• particular focus on at-risk sectors

• Facilitate international co-operation in the detection and investigation of cross border crime, including by creating a network of all law enforcement at border.

• To facilitate and promote information exchange and sharing on crime, based on established MOU.

• Strengthen liaison among law enforcement agencies between countries.

• Joint taskforce from agencies of two countries to perform inspection and consultation in tackling cross border crime.

• Jointly addressing and investigating cross-border crime and corruption with particular focus on at-risk sectors