Called In For Questioning AMLA

Called In for Questioning? Rights and Obligations During an AMLA Investigation

A notice to attend an interview under the anti-money laundering law can arrive even if you have done nothing wrong. Knowing what the law requires of you, and what it protects, can make all the difference.

Introduction

Imagine receiving a letter from the Malaysian Anti-Corruption Commission (MACC), the police, the Securities Commission or Bank Negara Malaysia, asking you to attend an interview about a money laundering investigation. Perhaps you are a bank officer who handled the account, a relative who received a transfer, a business partner, an accountant or simply someone who once sold a car to the person under investigation. Most people in this position are not suspects. They are witnesses. But the law still places serious obligations on them.

These powers are found mainly in Part V of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613), commonly known as AMLA or AMLATFPUAA 2001. This article explains, in plain language, who can investigate, what you must do when called in, what happens to what you say, what protection you have, and what changes if you are arrested. It also looks at what the courts have said in several recent cases.

Who can investigate under AMLA?

Under section 29, an investigation must be carried out once the competent authority, Bank Negara Malaysia, or a relevant enforcement agency has reason to suspect that an offence under AMLA has been committed. “Enforcement agencies” include bodies that enforce the laws on serious offences, such as the police, the MACC, the Securities Commission and the Royal Malaysian Customs Department. Once that low threshold is crossed, the agency may use all the investigation powers in the Act.

Under section 30, the agency appoints an investigating officer to carry out the investigation. The officer may be one of its own employees or an outside specialist, such as a forensic accountant. Either way, the officer acts under the direction and control of the agency. Section 43 treats investigating officers as public servants under the Penal Code and public officers under the Criminal Procedure Code. This means they are accountable for how they use their powers, and it is also an offence to obstruct or deceive them.

Investigations often begin with a suspicious transaction report from a bank, a public complaint, or information passed on by another agency. It is common for the agency to investigate the underlying crime, such as corruption or cheating, and the money laundering side at the same time. The result may be a criminal prosecution, or an application to freeze, seize and eventually forfeit property, even where no one is charged.

Being called in: the power to examine

Section 32 is the power most people encounter. An investigating officer may order, either orally or in writing, any person whom he believes to be acquainted with the facts and circumstances of the case to do three things. The officer may require the person to attend for examination, to produce any property, record, report or document, or to provide a written statement on oath or affirmation. The officer may also administer an oath or affirmation during the examination.

The power is not limited to suspects. It reaches anyone who may know something useful, including family members, employees, bank staff, company secretaries and professional advisers. It also applies despite any contract, oath, undertaking or duty of confidentiality to the contrary, so a confidentiality clause in your employment contract is not an excuse for refusing to cooperate.

An order to attend is properly served if it is handed to you personally, left with an adult at your last known home, workplace or place of business, or sent to you by registered post. In other words, the law may treat you as having been served even if the notice was left with a colleague and never reached your hands.

Your obligations during the examination

Once you receive an order to attend, you must turn up as directed and, if told to do so, continue attending from day to day until the examination is completed. During the examination, you must disclose all information within your knowledge or available to you about the matter, and answer every question truthfully and to the best of your knowledge and belief.

The most striking feature of section 32 is that you cannot refuse to answer a question on the ground that the answer may incriminate you or your spouse. The same applies to a written statement on oath, where you must also disclose information that you are capable of obtaining. This is very different from an ordinary police interview under section 112 of the Criminal Procedure Code, where a person may decline to answer questions that would expose him to a criminal charge. Under AMLA, refusing to answer is itself an offence.

Other provisions add to these duties. Under section 37, an officer may issue a written notice requiring you to deliver property, documents or information in your possession, custody or control. Under section 36, you may be required to translate documents that are in a language other than Bahasa Malaysia or English, or written in a sign or code. Section 34 makes it an offence to obstruct an investigating officer, for example by refusing entry to premises, hiding or destroying documents, or giving information you know or have reason to believe is false.

The main duties and penalties are summarised below.

Main duties when an investigating officer exercises examination and production powers under AMLA

Case in point: failing to turn up

In Amirruddin Nin lwn Pendakwa Raya [2024] 11 MLJ 26 (High Court, Kuala Lumpur, 24 July 2023), a company director was ordered by a Securities Commission investigating officer to attend for examination on 14 June 2017. He did not attend. The officer then issued two further orders for dates in August 2017 and April 2018, and he failed to attend those as well. He was charged with three offences under section 32(8)(a).

His defence was that the orders were never handed to him, and that he had asked the officer several times to postpone the dates. The court rejected this. The orders had been left with adult employees at his company’s office, which was his last known place of business, and that was valid service. Whether the employees actually passed the orders to him did not matter. Asking for a postponement also did not excuse his failure to attend on the date fixed.

The court did, however, rule in his favour on two points. First, all three orders related to the same investigation, so he could only be charged once. Issuing fresh orders after he failed to comply with the first one, and then charging him for each, was unfair. The second and third convictions were set aside. Second, because the first order only required him to attend on one particular day, his failure was a one-off offence and not a continuing one. The additional daily fine of almost RM2 million was therefore set aside. His conviction on the first charge, with one day’s imprisonment and a fine of RM100,000, was upheld.

The lesson is simple. If you receive an order to attend, take it seriously. If the date is genuinely impossible, ask for a new date in writing and keep a record, but do not assume that a request alone will protect you. Attend unless the officer has clearly agreed in writing to change the date.

Case in point: giving false answers

In Adam Rosly bin Abdullah v Public Prosecutor [2020] MLJU 143 (High Court, Kuala Lumpur, 23 January 2020), the MACC began looking into the source of funds for a young businessman’s luxury bungalow after it attracted media attention. He was called in and gave two statements under section 32, together with supporting documents.

It turned out that much of what he said was untrue. He claimed a monthly salary of RM60,000 as a company director, when he had already been removed as a director and had never been paid such a salary. He produced loan agreements with an alleged moneylender who denied ever lending him money, and with his grandmother, who had died before the agreement was supposedly signed. He also produced company cash vouchers that the company had never issued. He was convicted of two offences of giving false statements under section 32(8)(c) and four offences of using false documents under section 89, and was sentenced to six months’ imprisonment and a fine of RM5,000 on each charge.

On appeal, the High Court made several points that matter to anyone called in for questioning:

The label on the notice is not decisive. Although the notices were issued under the MACC Act, the officers read and explained the relevant parts of section 32 of AMLA to him before recording his statements. That was enough for the statements to be treated as AMLA statements, and the MACC was entitled to investigate as an enforcement agency.

Voluntariness was not an issue. Because he was not under arrest and the statements were recorded under section 32, the usual rules about whether a statement was made voluntarily did not apply. Section 40 made the statements admissible.

No constitutional right to stay silent. The court rejected the argument that section 32 was unconstitutional because it removes the right to remain silent, noting that Article 5 of the Federal Constitution does not contain such a right in express terms.

Complaints of pressure should be made at the time. He claimed he had been threatened into giving the statements. The court did not believe him, noting that he was not detained, had days between the notice and the interviews, and never lodged any report about the alleged threats.

The case shows that the offence of giving false information is taken very seriously. An honest “I do not know” or “I need to check my records” is always better than a confident answer that turns out to be false.

Your rights and safeguards

The compulsory powers are wide, but the law also builds in protections. Knowing them helps you make sure the process is fair.

You must be told your duties first. Under section 32(6), the officer must first inform you of your obligations under subsections (3) and (4) before examining you.

Your statement must be read back to you. Under section 32(7), your oral statement must be written down, read back to you in the language you used, and you must be given the chance to make corrections before you sign or thumbprint it. Read it carefully. Do not sign anything you do not agree with, and ask for corrections to be made.

Searches must respect decency. Under section 33, a body search may only be carried out by an officer of the same gender and with strict regard to decency. A person may not be held for a search for more than 24 hours without a magistrate’s authorisation.

You are entitled to know what was taken. When premises are searched under section 31, the officer must prepare and sign a list of everything detained, stating where or on whom it was found. The occupant, or someone on his behalf, may be present during the search and may ask for a copy of the list.

Property should be returned when no longer needed. Under section 39, items that are not needed for any prosecution or proceedings must be released to the person lawfully entitled to them. If ownership is unclear or disputed, the matter goes to a magistrate.

Non-suspects may be paid for translation work. Under section 36(4), a person who is not a suspect may be paid reasonable fees and expenses for providing a translation.

Legal professional privilege is not expressly removed. The commentary on these provisions notes that genuinely privileged communications with a lawyer for the purpose of legal advice or litigation are generally still protected, although ordinary confidentiality is overridden.

Can you bring a lawyer?

Many people assume they have an automatic right to have a lawyer sitting beside them during the interview. The Federal Court addressed this in Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] MLJU 1184 (9 August 2017). Although the case concerned a similar power under the MACC Act, the principles apply equally to AMLA examinations.

Two lawyers had insisted on sitting in while their client, a witness, gave his statement to the MACC. After recording the client’s statement, the MACC issued notices requiring the lawyers themselves to attend and give statements. The High Court and Court of Appeal quashed the notices as an act of intimidation. The Federal Court reversed those decisions for two reasons.

First, the constitutional right to consult and be defended by a lawyer under Article 5(3) of the Federal Constitution belongs to a person who has been arrested. A witness giving a statement is not an arrested person, so there is no constitutional right to have a lawyer present, although the officer may allow it. Second, a notice issued in the course of a criminal investigation is an administrative step and generally cannot be challenged by judicial review, unless the person can prove bad faith or some other exceptional circumstance. A mere suspicion of improper motive is not enough.

In practice, you may certainly consult a lawyer before and after the interview, and you can ask whether your lawyer may be present. But if you are only a witness and the officer says no, you cannot insist, and refusing to proceed could expose you to an offence.

What happens to what you say?

Section 40 is one of the most important provisions for anyone giving a statement. It provides that the record of an examination, any document or property produced, and any written statement under section 32 are admissible as evidence in any court proceedings under AMLA or for an offence under any other law. This applies whether the proceedings are against the person who gave the statement or against someone else.

The courts have applied this provision firmly. In Public Prosecutor v Awalluddin bin Sham Bokhari [2018] 2 MLJ 401, the Federal Court restored a forfeiture order after the Court of Appeal had dismissed the investigating officers’ affidavits as hearsay. The case involved an airline employee whose vehicles and investment account were bought with money from a scheme that misused military air travel warrants to sell cheap tickets to the public. The Federal Court held that the officers’ evidence, built on statements and documents obtained under section 32, was based on their own knowledge gained in the investigation and was admissible under section 40. It was not hearsay.

In Abdul Mudtalib bin Ismail v Public Prosecutor [2021] 1 MLJ 252, the Court of Appeal upheld the forfeiture of cash seized from a man said to be behind a “money game” dressed up as a crude palm oil business. The court relied partly on section 32 statements given by his son, his former wife and a business associate. It held that such statements are admissible, that there is no requirement for them to be corroborated, and that the court has no discretion under section 40 to refuse to admit them.

In Liew Ket Boh & Anor v Public Prosecutor [2024] 2 MLJ 73, the Court of Appeal went further. The case concerned money traced from a fake durian export investment scheme. The court held that even ordinary police statements recorded under section 112 of the Criminal Procedure Code could be used in forfeiture proceedings through section 71 of AMLA, because forfeiture proceedings are directed at property and not at an accused person on trial. The court also noted that the account holders’ bare explanations for large cash deposits, unsupported by any documents, did not help them.

The practical message from these cases is clear. Anything you say or hand over during an AMLA examination can later be used in court, including against you, your family or your business. It is therefore vital to answer carefully, accurately and truthfully, and to back up your explanations with documents wherever possible.

Keep the investigation to yourself

Under section 35, it is an offence to disclose information that is likely to prejudice an investigation, if you know or have reason to suspect that an investigating officer is acting or about to act. The penalty is a fine of up to RM3 million, imprisonment of up to five years, or both. This means you should not tell the person under investigation, or anyone else who might pass it on, that you have been questioned or what you were asked.

There is an exception for lawyers who disclose information to their client while giving legal advice, or in connection with legal proceedings. However, this protection does not apply if the disclosure is made to further an illegal purpose.

Searches without a warrant

If the investigating officer is satisfied, or has reason to suspect, that a person has committed an offence under AMLA, section 31 allows the officer to act without a search warrant. The officer may stop and search vehicles, enter and search premises, break open containers, seize property, documents and information, and search persons found on the premises. The officer may use force to enter if necessary, and may detain people on the premises until the search is completed. Items too large to remove may be sealed on the spot, and tampering with a seal is an offence.

If your home or office is searched, stay calm and cooperate. Ask to see the officer’s identification and authority, ask to be present during the search, note down what happens, and ask for a copy of the list of items taken.

If you are arrested

Under section 41, an investigating officer may arrest without a warrant any person whom he reasonably suspects to have committed, or to be committing, an offence under AMLA. If the officer is not a police officer, section 42 requires him to hand the arrested person over to the nearest police officer or police station. From then on, the person is dealt with under the Criminal Procedure Code as if he had been arrested by the police.

Once you are arrested, important constitutional protections apply. Under Article 5 of the Federal Constitution, you must be told the grounds of your arrest as soon as possible, you have the right to consult and be defended by a lawyer of your choice, and you must be brought before a magistrate within 24 hours, excluding travel time.

When does an arrest actually happen?

In Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219, the Privy Council explained that an arrest occurs when an officer says he is arresting a person, uses force to restrain him, or makes it clear by words or conduct that he will use force if necessary to stop the person from leaving. Simply being stopped so that an officer can make enquiries is not an arrest.

The case also explained what “reasonable suspicion” means. It is a state of conjecture where proof is lacking, and it is much lower than the evidence needed to charge someone. Even so, it must be reasonable. In that case, police had good reason to suspect that two lorry drivers were connected with a fatal accident, but no reason at that stage to suspect they had driven recklessly. Their arrest before questioning was therefore premature and unlawful, although their later detention became justified after they gave a false alibi. As the Privy Council put it in effect, the police made the mistake of arresting first and questioning afterwards.

The right to know why

In Abdul Rahman v Tan Jo Koh [1968] 1 MLJ 205, the Federal Court confirmed that a person arrested on suspicion is entitled to be told the reason for the arrest. An arrest made without giving any reason may amount to false imprisonment until the reason is given. In that case, however, the court accepted that the man had been told why the officer suspected him, so his claim failed.

The practical advice is not to resist, even if you believe the arrest is unjustified. Ask politely for the reason, make a note of the time and what was said, and raise any complaint through your lawyer afterwards.

The right to a fair investigation

An investigation is not meant to be a one-sided exercise. The book on which this article is based stresses that investigating officers should investigate thoroughly, including the explanation given by the person being investigated, and should not act oppressively.

This principle is illustrated by Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, a drug trafficking case in which the Federal Court quashed a death sentence. The accused had told the investigating officer that he was arrested inside a house compound and not while getting out of his car, as the police claimed. The officer never investigated this. The Federal Court described the failure as a serious omission that cast doubt on the prosecution’s witnesses. It also held that Article 5(1) of the Federal Constitution guarantees a fair trial, which includes the right to argue at the close of the prosecution’s case that there is no case to answer.

In Public Prosecutor v Gan Boon Aun [2017] 3 MLJ 12, the Federal Court confirmed that the presumption of innocence forms part of the “law” protected by Article 5(1). Parliament may create presumptions and require an accused person to prove certain matters, but only within reasonable limits, and the prosecution must still prove its case beyond reasonable doubt. For anyone under investigation, this means that giving a clear and truthful explanation at an early stage matters, because it is the officer’s job to look into it.

If you do become a suspect, the defences commonly raised in money laundering cases include showing that the money had no connection with any unlawful activity, that you had no knowledge or reason to suspect that it was dirty, that you took reasonable steps to check where it came from, or that you reported your concerns to the authorities. Documentary evidence gathered early can be crucial to any of these.

What if your money or property is caught up in someone else’s investigation?

Sometimes innocent people find their property swept up in an investigation of a business they dealt with. In Ahmad Rashdi bin Amran v Bank Negara Malaysia [2015] 9 MLJ 520, a customer had paid RM156,750 for 750g of gold from a gold trading company. Before the gold was delivered, Bank Negara raided the company and seized its assets, including the customer’s gold. The customer, together with 16 other buyers, went to court to force Bank Negara to give him a written report on its investigation.

The High Court struck out the claims. It held that Bank Negara was protected from legal action for acts done in good faith in carrying out AMLA, and that the customer had not shown any bad faith. The court also found that the customer’s contract was with the gold company, so his remedy for non-delivery lay against the company and not against Bank Negara. Finally, as a third party and not a complainant, he had no right to demand details of an ongoing investigation, which the law requires to be kept confidential.

For people in a similar position, the lesson is that the investigation itself cannot usually be challenged or opened up. Instead, keep evidence of your purchase or ownership, pursue your claim against the business you dealt with, and watch for any notice inviting third parties to come forward if forfeiture proceedings are later brought, so that you can assert your interest at the right time.

A practical checklist

Do not ignore a notice. Attend on the date stated. If you cannot, ask in writing for a new date and attend unless the change is confirmed.

Prepare before you go. Gather relevant documents such as bank statements, agreements, invoices and receipts, and consider speaking to a lawyer beforehand.

Tell the truth. Refusing to answer and giving false or misleading answers are both offences. If you do not know or cannot remember, say so.

Never produce documents you know are not genuine. Using false documents to support your story is a separate offence.

Read your statement carefully. Ask for corrections before you sign. It can be used in court against you or others.

Keep it confidential. Do not tell the person under investigation, or anyone else who might, that you were questioned.

Record any concerns immediately. If you believe you were treated unfairly or pressured, make a written complaint or report promptly.

Know your rights if arrested. Ask for the reasons, ask to speak to a lawyer, and remember that you must be brought before a magistrate within 24 hours.

Conclusion

AMLA gives investigating officers some of the strongest powers in Malaysian law. They can compel anyone who may know something to attend, answer questions and hand over documents, and a person cannot refuse to answer on the ground that the answer may incriminate him. What is said in an examination can later be used in court, and failing to attend, refusing to answer or giving false information can each lead to heavy fines and imprisonment.

At the same time, the law is not without safeguards. Statements must be read back and corrected, searches must respect decency, property must be returned when no longer needed, and a person who is arrested has constitutional rights. The courts have also made clear that investigations must be fair and that the presumption of innocence still applies. For anyone called in for questioning, the best protection is a combination of cooperation, honesty, careful record-keeping and early legal advice.