REMEDIES ON JURISDICTIONAL ISSUES

For the remedies of jurisdictional issues in Malaysia, these problems can refer to

Section 127 A under Criminal Procedure Code which provides liability for offences

committed out of Malaysia, Mutual Assistance in Criminal Matters Act 2002 (MACMA),

Section 9 of the Computer Crimes Act 1997 provides the effect of territorial scope to any

person for committing offence with computer in Malaysia1, and Section 4 of the

Communication and Multimedia Act 1998 provides for the application of this Act and its

legislation to both territorial and extra- territorial. Under these statues, offenders will still

be liable as if has committed crimes in Malaysia.2

In United Kingdom, the Serious Crime Act 2015 which came into effect on 3 March

2015, is the updated version of the criminal sanctions for cyber crime conduct. Section 41

to Section 44 of the Act3 include amendments to the Computer Misuse Act 1990 for

offenders to face much tougher penalties.4 It extends UK courts' extra- territorial

jurisdiction together with the reliance of Budapest Convention on Cyber Crime 2001 in

enforcement to prosecute foreign nationals committing crimes within UK and UK

residents who commit crimes abroad.5

Meanwhile in Singapore, the Section 11 of the Computer Misuse and Cyber Security

1
Duryana, M. (2011). Computer Evidence: Issues and Challenges in the Present and in
the Future. Retrieved from
http://irep.iium.edu.my/8122/2/full_paper_submitted_for_6th_UUM_ILC_2011_Dr_Dur
yana_Mohamed_29th_July_2011.pdf
2
Ibid
3
Serious Crime Act 2015
4
Will the Serious Crime Act 2015 toughen the UK’s cybercrime regime?.（2015). In
Eversheds Sutherland. Retrieved from https://www.eversheds-
sutherland.com/global/en/what/articles/index.page?
ArticleID=en/tmt/Serious_Crime_Act_2015_May2015
5
James. S. (2015). Can Legislation Stop Cybercrime?. Retrieved from http://www.computerweekly.com/opinion/Can-
legislation-stop-cyber-crime
Act allows extra- territorial effect as long as the offence is to the person or to the targeted

computer located in Singapore.6

REMEDIES ON LACKING OF CRIMINAL EVIDENCE ISSUE

Dealing with online criminal evidences is a challenging issue as data are stored and

created in various places and contain large amount of data. These devices include laptop,

desktop computer, secured Public Wi Fi, unsecured Public Wi Fi and VPN (Virtual

Private Network)7.

In Malaysia, if such offence is criminal in nature, under the Computers Crime Act

1997 (Section 10 and Section 11 of the CCA), Communications and Multimedia Act 1998

(Section 245 to Section 262 of the CMA), Criminal Procedure Code (Chapter XIII of the

CPC) and the Digital Signature Act 1997 (Section 76 to Section 81 of the DSA), the

Investigating Officer (IO) is allowed to do investigation and detection of computer

evidence with assistance from computer forensic expert before the retrieval of data from

the seized computer. The IO is permitted to do the investigation with or without the

search warrants. Seizure of computer by the police from the suspect if there is presence of

search warrants.

In United Kingdom, the Drug Trafficking Act 1994, Security Services Act 1989,

Interception of Communications Act 1985, and the recent prevention of terrorism

legislation have made provision for the collection of intelligence can be done on an ex

parte basis. The review is subjected to the judiciary, however, the involvement of

electronic communications exist for prevention of crime and justifiable causes of national

6
Cyber Crime and Cyber Security in Singapore. (n.d.). Retrieved from
https://doj.gov.ph/files/cybercrime_office/Singapore%20Country%20Report.pdf
7
Phillips. A. (2011). E-Evidence and International Jurisdictions: Creating Laws for the
21st Century. Retrieved from
https://www.computer.org/csdl/proceedings/hicss/2011/4282/00/10-04-02.pdf
security. As a consequence, court order may be obtained to access the digital evidence

from the third party, for instance, the ISP administrators. All information is easily

accessible to ISP administrators on the World Wide Web, no matter how remote the

information is saved by the internet users. The action of the investigators in the digital

world in obtaining the entire profiles and the surfing sites of individuals is permissible

and statutorily justifiable in employment of subpoenas.8

Meanwhile in Singapore, the Electronic Transactions Act (ETA) provides “legal

environment” (Leong & Wai, 2005, p. 128) for e-government services and commercial

transactions beside limiting the liability of network service providers for the accessed

content9. This Act was consistently revised in meeting the United Nations Convention's

interest for better security in online transactions10. This Act recognizes electronic records

as evidence in courts and also provides the Internet systems usage during hearings in

court, like the tele-conferencing.11

SUGGESTIONS

In dealing with jurisdictional issue, it is also suggested that the Computer Crimes Act

1997 and Mutual Assistance in Criminal Matters Act 2002 in Malaysia, need to have

some amendments on in fulfilling the legal requirements under the Budapest Convention

8
Leacock. C. (2008). Search and Seizure of Digital Evidence in Criminal Proceedings. Retrieved from http://sas-
space.sas.ac.uk/5426/1/1873-2609-1-SM.pdf
9
Leong, C., & Wai, C. K. (2005). Cyber-Security: Country Report on Singapore, 2003. In
R. Broadhurst & P. Grabosky (Eds.), Cyber-crime: the challenge in Asia (pp. 125-140).
Retrieved 3 Dec 2018 from https://books.google.com.my/books?
id=6V7QAQAAQBAJ&pg=PA125&lpg=PA125&dq=Country+Report+on+Singapore,
+2003-leong+
%26+Wai&source=bl&ots=z0CtFqU3_w&sig=slunLv64X3Eakq5LH7XbPOUY8W4&hl
=en&sa=X&ved=0ahUKEwjm-
aTv3bvYAhVCL48KHQ4gDBEQ6AEINzAC#v=onepage&q=Country%20Report%20on
%20Singapore%2C%202003-leong%20%26%20Wai&f=false
10
Electronic Transactions Act 2010
11
Supra 10
that drawn up by the Council of Europe and came into force in July 200412, as there is a

need for an international convention that has universal application in combating

transnational crime13. Budapest Convention is the first international treaty that addresses

matters in computer crimes and on the Internet by, increasing cooperation among the

nations, enhancement on the investigative techniques, and by harmonizing the national

laws.14

Moreover, jurisdictional issue also can be dealt by joining United Nations Office on

Drugs and Crime (UNODC)15. The Cybercrime Programme in 2017 by UNODC, which

is a global programme included the aim of the enhancement of the investigation,

prosecution and adjudication of cyber crime and Strengthened the communication

between national and international government.16

As for further improvement to cope with the remedies in the issues of lacking in

criminal evidences, one of its suggestions is to work with International Criminal Police

Organization (INTERPOL)17 since it is one of the best ways to arrest suspects. 18 It also

supports their partners organizations and member countries through the sharing of

information and coordination of international investigation.19

Furthermore, there can be also cooperation with the Virtual Global Taskforce

12
Malaysia eyeing membership in Budapest Convention on Cybercrime (2017, Nov 29），The Star Online. Retrieved
from https://www.thestar.com.my/news/nation/2017/11/29/malaysia-eyeing-membership-in-budapest-convention-on-
cybercrime/
13
Broadhurst. R. & Yao. C.C (2013). Cyber in Asia: Trends and Challenges. Retrieved from
https://www.researchgate.net/publication/256028676_Cybercrime_in_Asia_Trends_and_Challenges
14
Details of Treaty No. 185 of Convention on Cybercrime, Budapest, 23 November 2001
15
UNODC is a global leader in the fight of international crime and against illicit drugs.
16
Global Programme on Cybercrime. (2018). United Nations Office on Drugs and Crime. Retrieved from
https://www.unodc.org/unodc/en/cybercrime/global-programme-cybercrime.html
17
It is an organization that provides operational and investigative support to partner organizations such as justice
institutions and international criminal tribunals, and also to increase the number of war crimes unit in the member
countries, which are a strong network of 192 countries, including Malaysia.
18
Supra 8
19
Connecting Police for a Safer World. (2018). In INTERPOL. Retrieved from https://www.interpol.int/Crime-
areas/War-crimes/Operational-support
(VGT)20 in combating online child sexual abuse which is as the criminal evidence. Its

aims including to hold the perpetrators in account, identify, locate and help children at

risk and to make internet a safer place in browsing.21

20
The VGT website has an online reporting facility for the suspicious online behaviour and has wide links to agencies
in providing additional support and advice.
21
Virtual Global Taskforce. Australian Federal Police. Retrieved from https://www.afp.gov.au/what-we-do/crime-
types/child-protection/virtual-global-taskforce