ISSUES WITH JURISDICTION

In R v Tomsett, Tomsett was a tele operator working in London and he had sent a
telegram from London with the intention to divert funds from New York to his own account
in Geneva. The Court of Appeal held that if the attempt to fraudulently divert funds had been
funds would have been successful, the theft would have occurred in New York, thus
excluding the English courts jurisdiction to try the perpetrator. Likewise, if in case that of
Harry the English courts would be “benched” from trying Harry. 

There is no one way of describing the cyberspace, however the case of American
Civil Liberties Union v Reno, provided a succinct description that embodies all
interpretations of the cyberspace. In this case, it was stated that the internet is a “giant
network that interconnect innumerable small groups of linked computer networks”. Recent
statistics show that approximately 4.66 billion people were active internet users as of October
2020, which constitute 59% of the global population, however almost 2.3 billion of those
users were a part of the computer crimes that occurred early in 2020. It must be noted that
one of the essential characteristics of the cyberspace is that it is borderless and boundaryless.
According to Geist in his article “Cyberlaw 2.0” he described the cyberspace as having only
one border that is between the physical world and the virtual world. Therefore, seeing that the
cyberspace has no limits especially in terms of global borders and almost half of the internet
population has partaken in some form of a computer crime, enforcement of laws become
extremely difficult. The cyberspace is a subjective world, every transaction is another shade
of grey, thus when the black and white world of the law comes in to govern this space many
issues arise, among which is jurisdiction. 

There must be substantial understanding of the term “jurisdiction”. Jurisdiction is the

authority conferred upon a legal or political body to make decisions pertaining legal matters
along with administering justice within a defined area. Under traditional legal systems, the
approach of jurisdiction is much more defined. The jurisdiction that shall follow the matter
would be the country in which the parties have agreed upon to hear the matter or in which the
transaction has been performed, however these are all matters in respect to rules of conflict.
In the cyber world, the choice of laws are a bit more complex. Gilden once stated in his
article “Jurisdiction and the Internet: The Real World meets Cyberspace”, that the
cyberspace deviates from the “real world” due to the sole character that it is borderless, thus
the lack of defined territorial borders have left very important questions in its wake. As it can
be seen that the main legal issue that crops when jurisdiction becomes a factor in the
cyberspace is the question of how to enforce the law of one particular jurisdiction when the
crime occured in a foreign jurisdiction, which law would prevail? On the internet, the lines
become even more blurred. Weber in “Jurisdictional Issues in Cyberspace” explained that
in answering a question of when should a State exercise jurisdiction over a matter, the court
must turn to statutory provisions and constitutional law as guidance. 

In Malaysia, there are several domestic legislations that have tried to curb
jurisdictional issues in relation to the cyberspace. These laws have provided explicit guidance
in its quest to determine if Malaysian courts should possess the jurisdiction to hear a case
involving cybercrimes. First, section 9 of the Computer Crimes Act 1997, this statutory
provision prescribes that irrespective of nationality, if a person were to commit a cybercrime
in Malaysia, or use any computer, program or data in Malaysia to facilitate a crime
committed elsewhere, Malaysia shall have the jurisdiction to deal with the matter. Hamin in
“The Legal Response to Computer Misuse in Malaysia-The Computer Crimes Act 1997”,
further elaborated that the legislative scope of the Computer Crimes Act 1997 provides for
prosecution of offences by the Malaysian courts regardless of the extra-territorial nature of
the offences. 

Another example of legislation that defines the jurisdictional hold of the Malaysian
courts would be the Penal Code, precisely section 3 of The Code. Section 3 of the Penal
Code, stipulates that any offence punishable under the Code committed outside of Malaysia,
shall be dealt with in the same manner as if it were to have occurred in Malaysia. This
provision displays the vast extent of the Penal Code’s jurisdictional grasp. In the case of
Public Prosecutor v Rajappan Chinna Kounder, the High Court it was held that the offence
of bigamy committed outside of Malaysia did not allow the Malaysian courts to hear the case
however, NH Chan J opined that section 3 of the Penal Code only extends to offences
committed found under Chapter VI of the Code hence why bigamy could not be tried by the
Malaysian courts. Following this penal provision, section 4(1) of the Penal Code also
extends the jurisdiction of Malaysia to include any extraterritorial offences. In PP v Yazid
Sufaat & Ors, the Court of Appeal found that the respondents’ acts of terrorism toward
members of the public in Syria was allowed to be persecuted in Malaysia as it fell well within
the means of section 4 of the Code. Furthermore, in Amin Ravan v Menteri Dalam Negeri &
Ors, the Federal Court found that there were no extraterritorial elements in this case
therefore, the application of section 4 was not relevant to this case. 

Besides the provisions under the Computer Crimes Act 1997 and the Penal Code,
another relevant legislation that provides provisions to determine Malaysia’s jurisdiction is
section 32 of the Extradition Act 1992. This provision relates to the offence of extradition of
a fugitive criminal and imposes a punishment of imprisonment for more than 1 year or even
death. In addition to this, the Rules of Court 2012, under Order 11 the provision explains the
extent of the Malaysian court’s jurisdiction. An illustration of this can be seen in
Government of Malaysia v Nurhima Kiram Fornan & Ors, where there was a dispute on the
action filed by the Government of Malaysia in relation to the matter of an ad hoc arbitration
in Spain. Here the High Court held that in pursuance of O.11 of the Rules of Court 2012, the
High Court was the natural and proper forum to hear this alleged dispute. This case was cited
to show that the provision under the Rules of Court 2012, does apply to disputes involving
foreign jurisdiction. 

However its application in e-commerce was explained by Sheela in her article “Cyber
Paranormal: Conflict of Law Issues in E-Commerce Consumer Contracts”. The learned
author explained that since the amendment to the Rules of Court 2012, o.11, r 1 (C) and (F)
has allowed the courts in Malaysia to assume jurisdiction if (i) the website was located within
a server in Malaysia, (ii) the defendant is carrying out a business in Malaysia or (iii) the
defendant resides in Malaysia. It must be noted, however, that in cases involving a dispute in
contracts the parties would generally include a choice of law clause that would indicate which
jurisdiction should decide the dispute. Nevertheless, even if the parties do not expressly
provide a choice of law clause within the agreement, then the court shall interpret the
agreement to decide which jurisdiction was implied to have the right to hear the case. Lastly,
the Mutual Assistance in Criminal Matters Act where the implementation of this statute was
designed to assist mutual assistance in criminal matters between Malaysian and other
countries. Section 3 of this Act lays down all the international assistance that Malaysia is
obligated to provide as well as obtain. Furthermore, section 4(1) of the Act also allows
Malaysia to obtain as well as provide assistance to the International Criminal Police
Organization (INTERPOL). 
 Having explained all domestic legislations in place to combat the issue of jurisdiction
in Malaysia, the international initiatives must now be discussed. The United Nations
resolution for Combating the Criminal Misuse of Information Technologies was adopted by
the General Assembly to provide measures to combat the criminal misuse of information.
Malaysia being a member State of the United Nations must ensure that there is cooperation
between all member States in order to bring this initiative to life. Among the requirements
laid down under this resolution is that Malaysia along with other member States are (i)
obligated to share information regarding issues faced in combating the criminal misuse of
information technologies and (ii) the mutual assistance regimes should ensure that timely
investigation of the criminal misuse of information technologies and timely collection and
dissemination of evidence in said cases. 

Another international initiative that has been made is the Council of Europe’s
Convention on Cyber Crime also known as the Budapest Convention. This convention is the
first ever international treaty that deals with criminal offences in respect to the cyberspace
such as intellectual property infringements, computer related fraud and child pornography.
Certain guidelines provided under the Convention in relation to jurisdiction is that (i) a
country shall hold jurisdiction if the cybercrime was committed within its geographical
territory, (ii) on board a ship flying the flag of the country, (iii) on board an aircraft registered
under the law of said country, (iv) if the offence is punishable under the criminal laws of
where it was committed or if the offence was committed outside the territorial jurisdiction of
any State. Malaysia has yet to ratify this international treaty, however, in 2018 the Minister in
the Prime Minister’s Department, Dato’ Sri Azalina admitted that Malaysia’s local
legislations are in line with the Convention and the Malaysian Government is taking steps
toward ratifying the Convention. 

In summary, (summarise + analysis/opinions)