A GROUP of 20 practicing lawyers has raised serious concerns over the swift push to get both the Dewan Rakyat and Dewan Negara to pass the Penal Code (Amendment) Bill 2024 which seeks to introduce a new offence that will affect all bank accounts holders in Malaysia.

They are particularly disturbed with the introduction of Section 424(b) which seeks to omits mens rea (Latin phrase for ‘guilty mind’) which means that a person can be convicted even though he has no knowledge of a scam being orchestrated or genuinely believes that his bank account has been used for a lawful purpose.

If convicted under the said section on giving possession or control of payment instrument or account to other person, the accused can be with a fine of not less than RM10,000 but not exceeding RM100,000 as well as being liable for a jail term of not less than one year but not exceeding seven years.

“We the undersigned concerned lawyers are alarmed to learn about the proposed Section 424(b) which introduces a strict liability offence that will punish people who give their bank account access to a third party,” the group of 20 lawyers pointed out in a recent statement.

“Strict liability offence requires no blameworthiness on the part of the accused. The prosecution is exempted from the responsibility of proving that the accused had carried out the act with a guilty mind or intent which is one of the elements in criminal law offence.”

Although there are numerous voices that support this new amendment as a form of punishment for scammers who have fleeced vulnerable victims such as pensioners, the group of 20 lawyers contended that the real question should be whether “the account holder really receives the money”.

“We have over the years handled many cases involving mule account holders and are seriously concerned given bank account holders give their bank account access to a third party under various circumstances,” asserted the lawyers.

“If this bill is made into a law, the marginalised group will be most impacted while the bill itself will not resolve the issue of the real scammers.

“As a start, the government should provide statistics as how many real scammers and mule account holders that were prosecuted. The real scammers need to be punished and not the victim of such scammers including mule account holders who are themselves victims.”

Below are four scenarios of the cases handled by lawyers in court to justify concerns of the group of 20 lawyers:

Scenario A: Joyce, a 35-year-old housewife is asked by her former classmate, Jane, to open a bank account. Joyce and Jane have known each other for more than 20 years. To open a bank account, Joyce needs cash and a valid phone number.

The phone number will be used for online banking. So, Jane gave RM100 and a new phone number to Joyce. Joyce managed to open five bank accounts and she gave access to those bank accounts, namely, ATM card, login name, login picture and password to Jane.

In return, Joyce receives RM500 from Jane as a transportation allowance. When Joyce is arrested by the police a few months later, Jane breaks off her relationship with Joyce.

Scenario B: Ian, a 40-year-old driver is facing financial problems in his business. He found an ad on Facebook (FB) that a loan could be offered to him without full documentation and a credit check.

Ian clicked on the FB ad and was directed to one Zoey’s WhatsApp number. Zoey claims that her company can process the loan but Ian must provide his bank statement.

Ian’s bank statement showed several transactions and a very low balance. Zoey tells Ian that a bank statement with multiple deposits will have a higher chance of getting a loan.

Zoey tells Ian to open a new bank account and that she will help Ian to manage it. Ian opened a new account at a local bank EFG and he deposited RM20 into the new account. Ian then couriered the ATM card to Zoey along with his online banking username and password.

Zoey admits to receiving the ATM card and tells Ian that the company will need a few days to process the loan. Ian hasn’t heard from Zoey since.

Scenario C: Hana, a 24-year-old marketing executive has been chatting with Sadee via WhatsApp for almost three months. One day, Sadee tells Hana that there is a problem with his bank account and that his account has been blocked.

Sadee cannot receive his salary and needs Hana to help him to open a bank account. Without hesitation, Hana opened a bank account at a local bank STUV.

She deposited RM100 into the new account. Hana then meets Sadee for the first time at a shopping mall. She gave Sadee her ATM card, login username and password. Hana and Sadee continue to chat via WhatsApp.

However, when Hana is arrested by the police a few months later, Sadee cannot be contacted.

Scenario D: Fatifah, a 45-year-old kitchen assistant has a son with autism. A man visits Fatihah with a basket of fruits and food. He claimed he was a representative of an NGO and that he could help Fatifah get welfare benefits for her son from the government agency.

He told Fatihah that the funds would be transferred to Fatihah’s account at ABC bank. Fatihah’s ABC account has been inactive for many years. The man told Fatihah that he could help her if she gave him the ABC Bank’s ATM card.

Fatihah gave her ATM card to the man. Fatihah never seen or heard from the man since then. - July 26, 2024

https://focusmalaysia.my/lawyers-shock-at-express-amendments-to-penal-code-to-enhance-online-fraud-penalties-asset-seizures/