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Discussions: (12 Sections)Part I: Preliminary

Section 1 & 2Part II: Offences

Section 3, 4, 5, 6, 7, 8Part III: Ancillary & General

ProvisionsSection 9, 10, 11, 12

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Part 1 Preliminary

1. short title and commencement.

(1) this act may be cited as the Computer Crimes Act 1997

(2) this act shall come into force on such date as the Prime Minister may, by notification in the Gazette, appoint.

2. Interpretation.

(1) in this Act, unless the context otherwise requires-

“computer” means an electronic, magnetic, optical, electrochemical, or other data processing device, or group of such interconnected or related devices, performing logical, arithmetic, storage and display functions and includes any data storage and display functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such devices, but does not include an automated typewriter or typesetter, or a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility;

“computer network” means the interconnection of communication lines and circuits with a computer or a complex consisting of two or more interconnected computers;

“computer output” or “output” means a statement or a representation whether in written, printed, pictorial, film, graphical, acoustical or other form-

a) Produced by a computer;b) Displayed on the screen of a computer; orc) Accurately translated form a statement or representation so

produced;

“data” means representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer

“function” includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to from or within a computer.

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(2) For the purposes of this Act, a person secures access to any program or data held in a computer if, by causing a computer to perform any function, he-(a) alters or erases the program of data(b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;(c) uses it; or(d) causes it to be output from the computer in which it is held whether by having it displayed or in any other manner and reference to access to a program or data and to an intent to secure such assess shall be construed accordingly.

“premises” includes land, buildings, movable structures and any conveyance by land, water and air;“program” means data representing instructions or statements that, when executed in a computer, causes the computer to performing a function

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(6) A reference in this Act to any program or data held in a computer includes a reference to any program or data held in any removable storage medium which is for the time being in the computer.

(7) for the purposes of this Act, a modification of the contents of any computer takes place if, by the operation of any function of the computer concerned or any other computer-(a) any program or data held in the computer concerned is altered or erased;(b) any program or data is introduced or added to its contents; or(c) any event occurs which impairs the normal operation of any computer,

And, any act that contributes towards causing such a modification shall be regarded as

causing it.

(8) any modification referred to in subsection (7) is unauthorized if-

(a) the person whose act causes it is not himself entitled to determine

whether the modification should be made; and

(b) he does not have consent to the modification from any person who is so

entitled

(9) a reference in this Act to a program includes a reference to part of a program

(10) a reference in this Act to a computer includes a reference to a computer network.

(9) a reference in this Act to a program includes a reference to part of a program

(10) a reference in this Act to a computer includes a reference to a computer network.

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PART II

OFFENCES

3. Unauthorized access to computer material.

(1) a person shall be guilty of an offence if-

(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;

(b) the access he intends to secure is unauthorized; and

(c) he knows at the time when he causes the computer to perform the function that is the case

(2) the intent a person has to have to commit an offence under this section need not be directed at-

(a) any particular program or data;

(b) a program or data of any particular kind; or

(c) a program or data held in any particular computer.

PART II

OFFENCES

3. Unauthorized access to computer material.

(1) a person shall be guilty of an offence if-

(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;

(b) the access he intends to secure is unauthorized; and

(c) he knows at the time when he causes the computer to perform the function that is the case

(2) the intent a person has to have to commit an offence under this section need not be directed at-

(a) any particular program or data;

(b) a program or data of any particular kind; or

(c) a program or data held in any particular computer.

(3) a person guilty of an offence under this shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(4) Unauthorized access with intent to commit or facilitate commission of further offence.(1) a person shall be guilty of an offence under this section if he commits an offence referred to in section 3 with intent-

(a) to commit an offence involving fraud or dishonesty or which causes injury as defined in the Penal Code; or(b) to facilitate the commission of such an offence whether by himself or by any other person.

(2) for the purposes of this section, it is immaterial whether the offence to which this section applies is to be committed at the same time when the unauthorized access is secured or on any future occasion.(3) a person guilty of an offence under this section shall on conviction be liable to a fine not exceeding one hundred and fifty thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

(5) Unauthorized modification of the contents of any computer.(1) a person shall be guilty of an offence if he does any act which he knows will cause unauthorized modification of the contents of any computer.(2) for the purposes of this section, it is immaterial that the Act in question is not directed at-

(a) any particular program or data;(b) a program or data of any kind; or(c) a program or data held in any particular computer

(3) for the purposes of this section, it is immaterial whether an unauthorized modification is, or is intended to be, permanent or merely temporary.(4) a person guilty of an offence under this section shall on conviction be liable to a dine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or be liable to a fine not exceeding one hundred and fifty thousand ringgit or to imprisonment for a term not exceeding ten years or to both, if the act is done with the intention of causing injury as defined in the Penal Code.

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(6) Wrongful communication(1) a person shall be guilty of an offence if he communicates directly or indirectly a number,

code, password or other means of access to a computer to any person other than a person to whom he is duly authorized to communicate.

(2) a person guilty of an offence under this section shall on conviction be liable to a fine not exceeding twenty five thousand ringgit or imprisonment for a term not exceeding three years or to both

(7) Abetments and attempts punishable as offences.(1) a person who abets the commission of or who attempts to commit any offence

under this Act shall be guilty of that offence and shall on conviction be liable to the punishment provided for the offence.

(2) a person who does any act preparatory to or in furtherance of the commission of any offence under this Act shall be guilty of that offence and shall on conviction be liable to the punishment provided for the offence;

Provided that any term of imprisonment imposed shall not exceed one-half of the maximum term provided for the offence.

(8) PresumptionA person who has in his custody or control any program, data or other information which is held in any computer or retrieved from any computer which he is not authorized to have in his custody or control shall be deemed to have obtained unauthorized access to such program, data or information unless the contrary is proved.

PART IIIANCILLARY AND GENERAL PROVISIONSSection 9. Territorial scope of offences under this Act.

(1) The provisions of this Act shall, in relation to any person, whatever his nationality or citizenship, have effect outside as well as within Malaysia, and where an offence under this Act is committed by any person in any place outside Malaysia, he may be dealt with in respect of such offence as if it was committed at any place within Malaysia.

(2) For the purposes of subsection (1), this Act shall apply if, for the offence in question, the computer, program or data was in Malaysia or capable of being connected to or sent to or used

by or with a computer in Malaysia at the material time.

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(3) Any proceeding against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence was committed in Malaysia

shall be a bar to further proceedings against him under any written law relating to the extradition of persons, in respect of the same offence outside Malaysia.

Section 10. Powers of search, seizure and arrest.

(1) Whenever it appears to any Magistrate upon information and after such inquiry as he thinks necessary that there is reasonable cause to believe that in any premises there is evidence of the commission of an offence under this Act, he may, by warrant directed to any police officer of or above the rank of Inspector, empower the officer to enter the premises, by force if necessary, and there to search for, seize and detain any such evidence and he shall be entitled to -

(a) have access to any program or data held in any computer, or have access to, inspect or check the operation of, any computer and any associated apparatus or material which he has reasonable cause to suspect is or has been in use in connection with any offence under this Act;

(b) require -

(i) the person by whom or on whose behalf the police officer has reasonable cause to suspect the computer is or has been so used; or

(ii) any person having charge of or otherwise concerned with the operation of, the computer, apparatus or material, to provide him with such reasonable assistance as he may require for the purposes of paragraph (a); and

(c) require any information contained in a computer and accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible.

(2) Whenever it appears to any police officer of or above the rank of Inspector that there is reasonable cause to believe that in any premises there is concealed or deposited any evidence of the commission of an offence under this Act, and the police officer has reasonable grounds for believing that by reason of the delay in obtaining a search warrant the object of the search is likely to be frustrated, he may exercise in and in respect of the premises all the powers mentioned in subsection (1) in as full and ample a measure as if he were empowered to do so by warrant issued under that subsection.

(3) Any police officer may arrest without a warrant any person whom he reasonably believes to have committed or to be committing an offence against this Act, and every offence against this Act shall be deemed to be sizable offence for the purposes of the law for the time being in force relating to criminal procedure.

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(1) A person shall be guilty of an offence if he -(a) assaults, obstructs, hinders or delays any police officer in effecting entrance to any premises under this Act or in the execution of any duty imposed or power conferred by this Act; or

(b) fails to comply with any lawful demands of a police officer acting in the execution of his duty under this Act.

(2) A person guilty of an offence under this section shall on conviction be liable to a fine not exceeding twenty-five thousand ringgit or to imprisonment for a term not exceeding three years or to both.

A prosecution under this Act shall not be instituted except by or with the consent of the Public Prosecutor in writing.

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(1) If an act of parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation - (a)to cause, or to cause a substantial number of citizens to fear, organised

violence against persons or property; or (b)to excite disaffection against the Yang di-Pertuan Agong or any

Government in the Federation; or (c)to promote feelings of ill-will and hostility between different races or

other classes of the population likely to cause violence; or (d)to procure the alteration, otherwise than by lawful means, of anything

by law established; or (e)which is prejudicial to the maintenance or the functioning of any

supply or service to the public or any class of the public in the Federation or any part thereof; or

(f)which is prejudicial to public order in, or the security of, the Federation or any part thereof,

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• any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.

(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.

(1) If the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

(2) A Proclamation of Emergency under Clause (1) may be issued before the actual occurrence of the event which threatens the security, or the economic life, or public order in the Federation or any part thereof if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event.

(2A) The power conferred on the Yang di-Pertuan Agong by this Article shall include the power to issue different Proclamations on different grounds or in different circumstances, whether or not there is a Proclamation or Proclamations already issued by the Yang di-Pertuan Agong under Clause (1) and such Proclamation or Proclamations are in operation.

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(2B) If at any time while a Proclamation of Emergency is in operation, except when both Houses of Parliament are sitting concurrently, the Yang di-Pertuan Agong is satisfied that certain circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as circumstances appear to him to require.

(2C) An ordinance promulgated under Clause (2B) shall have the same force and effect as an Act of Parliament, and shall continue in full force and effect as if it is an Act of Parliament until it is revoked or annulled under Clause (3) or until it lapses under Clause (7); and the power of the Yang di-Pertuan Agong to promulgate ordinances under Clause (2B) may be exercised in relation to any matter with respect to which Parliament has power to make laws regardless of the legislative or other procedures required to be followed, or the proportion of the total votes required to be had, in either House of Parliament.

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(3) A Proclamation of Emergency and any ordinance promulgated under Clause (2B) shall be laid before both Houses of Parliament and, if not sooner revoked, shall cease to have effect if resolutions are passed by both Houses annulling such Proclamation or ordinance, but without prejudice to anything previously done by virtue thereof or to the power of the Yang di-Pertuan Agong to issue a new Proclamation under Clause (1) or promulgate any ordinance under Clause (2B).

(4) While a Proclamation of Emergency is in force the executive authority of the Federation shall, notwithstanding anything in this Constitution, extent to any matter within the legislative authority of a State and to the giving of directions to the Government of a State or to any officer or authority thereof.

(5) Subject to Clause (6A), while a Proclamation of Emergency is in force, Parliament may, not-withstanding anything in this Constitution make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency; and Article 79 shall not apply to a Bill for such a law or an amendment to such a Bill, nor shall any provision of this Constitution or of any written law which requires any consent or concurrence to the passing of a law or any consultation with respect thereto, or which restricts the coming into force of a law after it is passed or the presentation of a Bill to the Yang di-Pertuan Agong for his assent.

(6) Subject to Clause (6A), no provision of any ordinance promulgated under this Article, and no provision of any Act of Parliament which is passed while a Proclamation of Emergency is in force and which declares that the law appears to Parliament to be required by reason of the emergency, shall be invalid on the ground of inconsistency with any provision of this Constitution.

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(6A) Clause (5) shall not extend the powers of Parliament with respect to any matter of Islamic law or the custom of the Malays, or with respect to any matter of native law or custom in the State of Sabah or Sarawak; nor shall Clause (6) validate any provision inconsistent with the provisions of this Constitution relating to any such matter or relating to religion, citizenship, or language.

(7) At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.

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(8) Notwithstanding anything in this Constitution- (a) the satisfaction of the Yang di-Pertuan Agong mentioned in Clause (1) and

Clause (2B) shall be final and conclusive and shall not be challenged or called in question in any court on any ground; and

(b) no court shall have jurisdiction to entertain or determine any application, question or proceeding, in whatever form, on any ground, regarding the validity of-

(i) a Proclamation under Clauses (1) or of a declaration made in such Proclamation to the effect stated in Clause (1);

(ii) the continued operation of such Proclamation; (iii) any ordinance promulgated under Clause (2B); or (iv) the continuation in force of any such ordinance.

(9) For the purpose of this Article the Houses of Parliament shall be regarded as sitting only if the members of each House are respectively assembled together and carrying out the business of the House

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(1) Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention- (a) the authority on whose order any person is detained under that law or

ordinance shall, as soon as may be, inform him of the grounds for his detention and, subject to Clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be;

(b) no citizen shall continue to be detained under that law or ordinance unless an advisory board constituted as mentioned in Clause (2) has considered any representations made by him under paragraph (a) and made recommendations thereon to the Yang di-Pertuan Agong within three months of receiving such representations, or within such longer period as the Yang di-Pertuan Agong may allow.

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(2) An advisory board constituted for the purposes of this Article shall consist of a chairman, who shall be ap,pointed by the Yang di-Pertuan Agong and who shall be or have been, or be qualified to be, a judge of the Supreme Court or a High Court, or shall before Malaysia Day have been a judge of the Supreme Court, and two other members, who shall be appointed by the Yang di-Pertuan Agong after consultation with the Lord President of the Supreme Court.

(3) This Article does not require any authority to disclose facts whose disclosure would in its opinion be against the national interest.

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