OCTOBER 3 — Section 3 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA) (Act 613) defines money laundering offence as "an offence under subsection 4(1)” of AMLATFPUAA.

The full provisions of Section 4 of AMLATFPUAA are reproduced below:

Section 4 Offence of money laundering

(1) Any person who —

(a) engages, directly or indirectly, in a transaction that involves proceeds of an unlawful activity or instrumentalities of an offence;

(b) acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes of or uses proceeds of an unlawful activity or instrumentalities of an offence;

(c) removes from of brings into Malaysia, proceeds of an unlawful activity or instrumentalities of an offence; or

(d) 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 an unlawful activity or instrumentalities of an offence,

commits a money laundering offence and shall on conviction be liable to imprisonment for a term not exceeding fifteen years and shall also be liable to a fine of not less than five times the sum or value of the proceeds of an unlawful activity or instrumentalities of an offence at the time the offence was committed or five million ringgit, whichever is the higher.

(2) For the purposes of subsection (1), it may be inferred from any objective factual circumstances that —

(a) the person knows, has reason to believe or has reasonable suspicion that the property is the proceeds of an unlawful activity or instrumentalities of an offence; or

(b) the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is the proceeds of an unlawful activity or instrumentalities of an offence.

(3) For the purposes of any proceedings under this Act, where the proceeds of an unlawful activity are derived from one or more unlawful activities, such proceeds need not be proven to be from any specific unlawful activity.

(4) A person may be convicted of an offence under subsection (1) irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreign serious offence.

It is clear from the above that any of the conduct stated in Section 4(1)(a), (b), (c) and (d) may amount to a money laundering offence. The common prerequisite for each of the offences is there must be proceeds of an unlawful activity or instrumentalities of an offence.

Section 3 of AMLATFPUAA also defines "proceeds of an unlawful activity”, "instrumentalities of an offence” and "unlawful activity”.

An unlawful activity is any serious offence within or outside Malaysia. A serious offence means —

(a) any of the offences specified in the Second Schedule;

(b) an attempt to commit any of those offences; or

(c) the abetment of any of those offences.

Accordingly, an unlawful activity refers to a serious offence which is any one of the various and many offences listed in the Second Schedule to AMLATFPUAA.

The offences listed in the Second Schedule are referred to as the predicate offences for the money laundering offence. The offences under Section 4(1) of AMLATFPUAA itself are listed in the Second Schedule. As such all the offences under Section 4(1) of AMLATFPUAA are serious offences within the meaning of Section 3 of AMLATFPUAA.

Now, let’s look at Section 4(1)(b) to illustrate what constitutes a money laundering offence.

Three elements must be established. First, the accused had received monies. Second, the monies received are the proceeds of an unlawful activity or instrumentalities of an offence —the common prerequisite. Third (the mental element), the presence of knowledge of the accused on the source of the proceeds, which under Section 4(2) can be inferred from objective factual circumstances.

Based on the above, it does not matter that monies received from the proceeds of an unlawful activity or instrumentalities of an offence are spent in a philanthropic way (or Robin Hood way, if you like) — that is, to promote the welfare of others.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.