OCT 25 — There are crimes and there are organised crimes. The obvious distinction between the two is the word “organised”.
In organised crimes, the crimes are not random, unplanned, individual criminal acts. Instead, they are planned, rational acts that reflect the effort of groups of individuals.
According to the United Nations Office on Drugs and Crime (UNODC), several efforts have been made to elicit common elements to describe and define organised crime with greater specificity as there are many definitions of organised crime.
There are, however, several characteristics of organised crime that are common among the definitions. These include the purpose of organised crime, which is to financially profit through crime. Organised crime also mainly responds to public demand for services.
Corruption is said to be an enabler that protects organised crime operations. Sometimes intimidation, threats and/or force are also needed to protect those operations, which enable organised crime to be a continuing criminal enterprise.
Accordingly, organised crime has been defined by UNODC as a continuing criminal enterprise that rationally works to profit from illicit activities that are often in great public demand.
Its continuing existence is maintained through corruption of public officials and the use of intimidation, threats or force to protect its operations.
According to the Interpol, organised crimes are billion-dollar businesses operating in many crime areas, including trafficking in people, drugs, illicit goods and weapons, armed robbery, counterfeiting and money laundering.
Resembling those of legitimate businesses, organised crimes have operating models, long-term strategies, hierarchies, and even strategic alliances, all serving the same purpose: to generate the most profits with the least amount of risk.
Members of organised crime groups often share a common link, for example geographical, ethnic or even blood ties. At the root of this connection is a tight, often unbreakable bond which promotes devotion and loyalty.
When organised crimes operate in two or more countries, they become transnational. This flows from the definition of transnational crime by the United Nations (UN) in 1995 — transnational crimes are offences whose inception, perpetration and/or direct or indirect effects involve more than one country.
When UN Member States came together to recognise the seriousness of the threats posed by transnational organised crimes (TOC) and the realisation that not a single country, no matter how powerful, can fight TOC in isolation, it led to the passage and adoption of the United Nations Convention Against Transnational Organized Crime (UNCTOC) by the General Assembly November 15, 2000 (Resolution 55/25) which came into force in September 2003.
UNCTOC became, and remains as, the main international instrument in the fight against TOC.
Member States that ratify UNCTOC, like Malaysia, commit themselves to taking a series of measures against transnational organised crime, including the creation of domestic criminal offences (participation in an organised criminal group, money laundering, corruption and obstruction of justice); the adoption of new and sweeping frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities.
UNCTOC does not contain a definition of TOC or organised crime, for that matter. As noted above, the many elements of organised crime, which might not occur in every case, and might also change over time, make a consensus definition difficult.
Instead, UNCTOC defines the term “organised criminal group”. A precise definition was considered necessary because the Convention aims at directing policy, law, and practice in preventing and combating organised crime.
Article 2(a) defines the term as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit”.
The definition above can be broken down into four statements which describe an organised criminal group:
- It is a structured group of three or more persons.
- It exists for a period of time.
- It acts in concert with the aim of committing at least one serious crime.
- Its aim is to obtain, directly or indirectly, a financial or other material benefit.
The term “structured group” is defined in the negative: it is one that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure – Article 2(c). This makes the definition broad, including loosely affiliated groups without any formally defined roles for its members or a developed structure.
The term “serious crime” means an offence punishable by a maximum penalty of incarceration of at least four years – Article 2(b).
It was not until 2012 that the main penal law of Malaysia, the Penal Code, was amended to include a chapter on organised crime – that is, Chapter VIB. Under the Chapter, the term “organised crime” is not defined, but the term “organised criminal group” is.
Section 130U defines the latter as “a group of two or more persons, acting in concert with the aim of committing one or more serious offences, in order to obtain, directly or indirectly, a material benefit, power or influence”.
A further amendment in 2014 does the following, among others:
- It introduces Section 52B which defines serious offences as “any offence punishable with imprisonment for a term of ten years or more”.
- It increases the punishment for the offence of being a member of an organised criminal group.
- It adds a legal presumption on membership of an organised criminal group.
With the amendments, Section 130V now provides as follows:
(1) Whoever is a member of an organised criminal group shall be punished with imprisonment for a term of not less than five years and not more than twenty years.
(2) Until the contrary is proved, a person shall be presumed to be a member of an organised criminal group where—
(a) such person can be identified as belonging to an organised criminal group; or
(b) such person is found with a scheduled weapon as specified under the Corrosive and Explosive Substances and Offensive Weapons Act 1958 [Act 357].
Subsection (2) above underscores Malaysia’s commitment to taking measures against organised crimes as warranted under UNCTOC.
In 2016, another round of amendments were made to the law – this time the Criminal Procedure Code (CPC). A new Section 399B was added to the CPC. It reads as follows:
Section 399B – Evidence or report by an expert on matters relating to organised criminal group
(1) Notwithstanding any other written law, where evidence or report is given by an expert on the activities, structure, ritual, ceremonies, hand sign, insignia, characteristic of an organised criminal group or any other matters relating to an organised criminal group the Court shall admit the evidence as prima facie proof of the facts.
(2) If evidence is proved that the accused—
(a) is involved in any of the activities, ritual or ceremonies of an organised criminal group;
(b) is part of, or within the structure of an organised criminal group;
(c) exhibits any hand sign, insignia or characteristics of an organised criminal group; or
(d) can be linked to any other matters relating to an organised criminal group,
the Court shall presume that the accused is a member of an organised criminal group.
The legal presumption above – to add to the one in Section 130V(2) Penal Code – further underscores Malaysia’s commitment to taking a series of measures against organised crimes.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
