The admissibility of illegally obtained evidence in cases involving money laundering offences: a Malaysian perspective
| Date | 04 April 2024 |
| Pages | 1013-1024 |
| DOI | https://doi.org/10.1108/JMLC-01-2024-0005 |
| Published date | 04 April 2024 |
| Author | Karunanithi Kanagaraj,Ramalinggam Rajamanickam |
The admissibility of illegally
obtained evidence in cases
involving money laundering
offences: a Malaysian perspective
Karunanithi Kanagaraj
Faculty of Law, UKM, Bangi, Malaysia, and
Ramalinggam Rajamanickam
Faculty of Law, National University of Malaysia, Bangi, Malaysia
Abstract
Purpose –The purpose of this paper is to explore and evaluate thecurrent legal position on the
admissibilityand exclusion of illegally obtained evidence in moneylaundering cases.
Design/methodology/approach –A thorough exploratory analytical analysis signifies that such
illegally obtainedevidence from money laundering offencesis admissible, provided it does not underminethe
administrationof justice or the right to a fair trial.
Findings –By virtue of the lack of written or codifiedrules governing the admissibility and exclusion of
illegallyobtained evidence in cases involving money laundering,the rule of admissibility remains the primary
foundational principlefor the governance of the admissibility and exclusionof illegally obtained evidence in
money launderingcases.
Originality/value –The Malaysian Criminal Justice System has historically relied on the long-standing
admissibility principlesto admit and exclude illegally obtained evidence. For decades,courts have used their
discretion to admit illegally obtained evidence based on the relevancy test, and they have further
demonstrated to use the same discretionto exclude gravely prejudicial evidence. Evidence obtainedillegally
but if relevant to the matter in issue is deemed admissible. Evidence derived from an act associated with
unlawful activitiesor a predicate offence in money laundering may be obtainedillegally, which may influence
the prosecutioncase and conversely, defend the accused’s rights to a fair trial.
Keywords Admissibility, Illegally, Evidence, Money laundering, Exclusion
Paper type General review
1. Introduction
The Evidence Act 1950 (Act 56) (“EA 1950”) contains no applicable provisions governing
the exclusion of illegally obtained evidence. Likewise, the Anti-Money Laundering, Anti-
Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) (AMLATFA)
contains no specific provision governing the exclusion of illegally obtained evidence within
the confines of the Act [1]. The act itself has its foundation based on the Financial Action
Task Force standards for international agreements and treaties on money laundering and
terrorism financing, and the definitionof “Money Laundering”is based on the definitions of
law given under the Vienna and Palermo Conventions[2].
Malaysian courts have always had discretion to exclude illegally obtainedevidence [3].
The most prevalent ground of argument presented in Malaysian criminal courts is the
infringement of rules or procedures in theprocess of procuring evidence. Fundamentally,
Money
laundering
offences
Journalof Money Laundering
Control
© Emerald Publishing Limited
1368-5201
DOI 10.1108/JMLC-01-2024-0005
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1368-5201.htm
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