INTELLIGENCE BASED INVESTIGATION AND PROACTIVEINVESTIGATION:A WAY FORWARD
DatoʼAbdul Wahab Bin Abdul Aziz

I. INTRODUCTION
Malaysian Anti-Corruption Commission (M ACC) has operated as an independent agency since2009 and the year 2012 earmarked as the year of transformation. The entire MACC workforce has
absorbed and accustomed themselves with the various transformation implemented in aspects concerning operations,human capital management and prevention activities. However,the M ACC has a long
history in which the agency was established in October 1967. Working in the small units of theAnti-Corruption Agency (ACA) until it became National Bureau of Investigation (NBI) in 1982
involving national interest cases,and it was assigned back to ACA till 2009 to tackle corruption cases.
In its efforts to raise the level of confidence of the public and international fraternity as to theeffectiveness of the M ACC, investigation was one of the most important duties of the MACC thatneeded to be focused on. Due to the complex and involved cross boundary investigations, M ACC has
adopted a new approach, which is Intelligence based Investigation (IBI), through intelligence fact
gathering.
Intelligence based Investigation (IBI)is a methodology which is essential in producing efficient andeffective intelligence for the purposes of open investigations. The IBI approach not only shortens thecompletion time of an investigation but also enables effective pooling of various expertise needed indealing with complex investigations to yield positive outcomes in every investigation.With advanced
technology equipment, networking facilities and complete one-stop office facilities. Outlining of new
SOPs and assembly of operational toolkits are currently in their pilot stages of implementation anddevelopment of structured training modules.
Fighting corruption is the priority agenda of the government. Nonetheless, the government alone
would not be able to successfully eradicate corruption. The establishment of M ACC is only a part ofthe official mechanism to fight corruption but the commission,however effective it is,would not be able
to fully eradicate the scourge without the support and trust by all parties concerned.
Our Commissionʼ
s logo “Fairness, Firmness and Trustworthy”is to ensure that all the Commissionʼs actions are done fairly without any prejudice and discrimination in accordance with the law at
all times. Besides firmness, the Commission will also investigate all the corruption cases objectively
and impartially, and we keep our promise to discharge our duty with full responsibility at all times.
Besides that,our client charter has promised to act on complaints on any form of corruption within 24
hours after receiving a complaint and a complainant will be informed upon request on the status of thecomplaint after 28 working days from the date of the report which he/she had made.I must stress herethat only the legitimate complainants will be notified by the commission on the minimal status of theinvestigation without disclosing all the material evidence in order not to jeopardize the case.
For MACC, having a strong capability is easier said than done; the current success does notguarantee future success. In a way, it is a race against the corrupt and the criminal minded as they
resort to use of technology and more sophisticated modus operandi to commit corruption.In order tosecure the relevant evidence which builds corruption cases, right-minded officers trained by M ACA
must be prepared to cope with the spirit of the Commission and to combat the corruptors,regardlessof his/her position in society or political parties.
Director of the Malaysia Anti Corruption Academy (MACA).

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In order to complete the basic training,the new cadets must undergo six (6)months basic training
in various aspects and tools before they are posted for the on-job training. These enable them to beready to fight corruption and carry out the agenda of the Commissions.

II. UNCAC RATIFICATION:OVERVIEW OF THE LEGAL AND
INSTITUTIONAL FRAM EWORK AGAINST CORRUPTION OF MALAYSIA IN
THE CONTEXT OF IM PLEMENTATION OF THE UNITED NATIONSCONVENTION AGAINST CORRUPTION
M alaysia is a constitutional monarchy based on the British Westminster model.The power to enact
laws is vested in Parliament at the federal and state levels. According to article 160 of the Federal
Constitution,laws include written laws,the common law,and any custom or usage having the force oflaw. English law has been adapted to local circumstances.Following the common law tradition,laws
are constantly developed through case law.Islamic law is applicable onlyto M uslims and is administered by state Syariah courts in matters not related to corruption.
M alaysia signed the Convention on 9 December 2003 and ratified it on 24 September 2008. The
Convention entered into force for Malaysia on 24 October 2008. Among the relevant institutions in
M alaysia that contribute towards the fight against corruption are the Malaysian Anti-Corruption
Commission (MACC),the Attorney Generalʼs Chambers (AGC),the Royal Malaysia Police (RM P),theRoyal Customs and Excise Department,the Financial Intelligence Unit ofthe Central Bank ofM alaysia(FIU), the M inistry of Foreign Affairs, the Public Service Department (PSD), and the Judiciary.1
M alaysia is a member of the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific,theSouth East Asia Parties Against Corruption (SEA-PAC) mechanism, the Asia Pacific Economic
Cooperation (APEC)Anti-Corruption and TransparencyWorking Group,the Asia Pacific Group (APG)
on M oney Laundering, the Offshore Group of Banking Supervisors, the Egmont Group of Financial
Intelligence Units,the International Association of Anti-Corruption Authorities (IAACA),the International Anti-Corruption Academy (IACA), INTERPOL, and ASEANAPOL. Malaysia has fulfilled therequirements of the Convention.

III. CRIMINALIZATION AND LAW ENFORCEM ENT ― OBSERVATIONS ON
THE IMPLEMENTATION OF THE ARTICLES UNDER REVIEWM ACCA 2009 addresses the following important issues:
Bribery and trading in influence (articles 15, 16, 18, 21)Sections 16, 17 and 21 of the Malaysian Anti-Corruption Commission Act of 2009 (M ACCA)
criminalize active and passive bribery. In all cases the penalty is imprisonment for up to 20
years and a fine, as defined in section 24 of MACCA.

Participation and attempt (article 27)
Section 28 of M ACCA regulates all forms of participation. Section 107 of the Penal Code On
abetment is also relevant.The interpretative notes in the Penal Code clarify that acts Page 6of 502 of instigating, aiding or facilitating an offence can also be subsumed under the term
abetting. The same interpretation is applicable for abetting under section 28 of M ACCA.
Criminal attempts are legislatively covered in section 28 of MACCA, section 4 (1) (a) of
AMLATFA, and section 511 of the Penal Code. Section 28 of M ACCA also covers “any act
preparatory to or in furtherance of the commission of any offence”.
A. What? ― History of Intelligence Based Investigation
Todayʼ
s achievement may go in vain if the investigation methods and strategies remain the same
towards corruptors as yesterday.As we race against the corruptors somehow new counter forces need
1Malaysian AntiCorruption Commission website: http://www.sprm.gov.my/>.

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to be designed in order to prepare the minds and esprit de corps of the fellow officers to win the war
against corruption. Once a corrupter has been brought forward to the court, all the methods andoperation strategies of the commission have been exposed in the court,the potential corrupter changes
his modus operandi to the new methods which are beyond the imagination of the enforcement agencies,
thus creating new challenge for the commission to track down the modus operandi.
Early forms of Intelligence Based Investigation were introduced in Great Britain in the early 1990s
and is based on the “Kent Policing M odel”.2 This investigation focuses on the local crimes dependingon the seriousness of the crime and carried out entirely by the intelligence unit. After the completionof the intelligence investigation,all the criminals will be handed over to the open investigation unit tobe prosecuted.The “Kent Policing Model”was then upgraded to the new USA model.This new USA
model is the combination of intelligence information center and multiple agencies.
Because of misuse, the word “intelligence”means different things to different people. The mostcommon mistake is to consider “intelligence”as synonymous with “information.”Information is notintelligence. Misuse also has led to the phrase “collecting intelligence”instead of “collecting information.”Although intelligence may be collected by and shared with intelligence agencies and bureaus,
field operations generally collect information (or data).Despite many definitions of“intelligence”thathave been promulgated over the years,the simplest and clearest of these is “information plus analysis
equals intelligence”.3
1. Strategies of IntelligenceIntelligence is divided into strategic and operational intelligence. Strategic intelligence provides
M ACC policy makers with the information needed to make national policy or decisions of long-lasting
importance.Strategic intelligence collection often requires integrating information concerning politics,
economics, societal interactions, and technologies developments which focus less on the big scale. It
typically evolves over a long period of time and results in the development of intelligence studies andestimates. Operational intelligence is concerned with current or near-term events. It is used to determine the current and projected capability of a program or operation on an ongoing basis and does not
result in long-term projections. Most intelligence activities support the development of operational
intelligence.4
Intelligence-based investigations are carried out by:collecting databases from public and private to
analyze the information, creating a new intelligence product which covers the ways to handle thecriminals and targeted groups,analyze the crimeʼ
s trend to reduce it and setting up multiple objectives
strategies.
2. Proactive Based Investigation from M ACCʼs PerspectiveIntelligence has been used in the past for the political motivated;however, it was the intelligencepolicing that sparked most controversy. Undercover policing within the MACC 2009 framework now
has been widely used by its officers. On the contrary, it was widely accepted, as long as the M ACC
officers did not provoke the commission of crimes by those involved in the corrupt practices.Previously,M alaysian anti-corruption laws scholars of the time,similar to our counterparts elsewhere in someof the countries which did not focus on the anti-corruption works,were full of the academics,lawyers
and considered these MACC works to fall outside of the framework of enacted legislation.
3. Legal Framework of Undercover Operations
In 2009, under the MACC act by the virtue of Section 52,in which the evidence of accomplice andagent provocateur(a)5 no witness shall be regarded as an accomplice by reason only of such
witness(b)
shall be presumed to be unworthy of credit by reason only of his having attempted
2United Nation convention against Corruption, signature and ratification status as of 27 September 2003.

http://www.
unodc.org/unodc/en/treaties/CAC/signatories.html>.
3IntelligenceLed Policing: The New Intelligence, Bureau of Justice Assistance, M arilyn Peterson, 2003.
4Intelligence Collection Activities and Disciplines, Greenbelt, M D:IOSS, April 1991.
5Intelligence Collection Activities and Disciplines, Interagency OPSEC Support Staff, Compendium of OPSEC Terms,
Greenbelt, M D:IOSS, April 1991.

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to commit, or abet, having abetted or having been engaged in a criminal conspiracy to commitAndsuch evidence against such person(c) Any statement, whether oral or written, made to an agent
provocateur by such person shall be admissible as evidence at his trial.The Anti-Corruption action thecandidly stress that the successful use of the ruses to apprehend wrongdoers reflected the professional
qualities of the MACC concerned. Action against wrongdoers without fear or favor to this evolution
by issuing secret guidelines on the use of the so-called “special investigative methods”,had entrusted tothe most risky ones to specially trained and equipped special division within M ACC also known as the
special intelligence division which was led by a director.However,they accepted some of the proactive
policing as a means to reach the targets of official investigation in the stricter, lawful, sense of theword.
B. Why?
1. Purpose of Intelligence Gathering
Due to effective intelligence operation conducted jointly by MACC and other relevant agencies,
local government agencies combating “Sand”stealing,which is under the purview of the state government,the state officers are vulnerable to all kinds ofthreats while “on the beat”collecting information,these intelligence operation can be applied.However,the intelligence operations of the state and local
law enforcement agencies often are plagued by a lack of policies and procedures.
To neutralize the problem,basic changes are required in the way information is gathered,assessed,
and redistributed.All the traditional intelligence functions need to be overhauled and replaced with thecooperative, fluid structures that can collect accurate information for the end users faster.
―Syndicated crimes/organized crimes are alarming and naturally reduce the income of thenationʼs economy.

―

Witnesses afraid of self-security due to threats and less patriotism―

M ost of these syndicated crimes are against the public interest and the nationʼs security,and
also the stateʼ
s natural resources have been taken awaywithout following the proper channels.

―

Other relevant authorities,such as local enforcement not capable to encounter the threats ofrings which need federal enforcement assistant to crackdown all illegal activities i.e Sand
stealing, illegal mining, etc.

The ultimate purpose of proactive investigation is to assist open investigation by:
Improving in the overall intelligence operation
Solving issues or problems as a good planning techniques
Giving quality data analysis
Having better development techniques in operation and training
C. How?
The center nerve of intelligence is based on analysis of the collected data; intelligence always
requires huge amounts of data and information. Traditionally, collecting data from various sources
such as overt and covert, it has aspects of intelligence, with law enforcement and supporting teams
dedicating significant resources to gathering data. Current trends should focus on the crime analysis
methods which analyze the crime pattern, time-series, behavioral analysis and so forth.
One way to reevaluate intelligence is to include a feedback form with each product that is disseminated. To ensure that the comments made are valuable, the form should focus on the questions
which need to be more specific, and it will be useful for intelligence purposes.
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information that are compared, analyzed and weighted to allow the development of conclusions.
Finished intelligence is produced through analytical review in the intelligence process.The intelligenceprocess confirms a fact or set of facts through a multiplicity of sources to reduce the chance oferroneous conclusions and susceptibility to deception.
1. Tools(a)Informants
An informant normally is a person who knows better about the crimes which are going to beinvestigated. Informants can help the intelligence in high profile cases which are hard to penetrate
through normal investigation,by providing a better way for the investigation to start. If someone had
been assigned, he or she may be limited to certain information, so all those involved should establish
information-sharing databases and receive intelligence awareness training to be able to interpret
information using analytical methods.
(b)Deep cover
The deep cover officers task would be to penetrate organized crime circles and collect and gather
information which would be used as a strong starting point for open investigation;later they aim toarrest all those perpetrators and seize all the offence-related material to be used as evidence in thetrials.
(c) Usage of UCA/UCO
The top management of the MACC would be justified in the withholding of this UCA status bypointing out that the UCA members would gather information and basically they would not be
involved in the methods of open investigation.They would have to hand over the collected information
to the investigation unit which was created within the intelligence division to established investigation
units either in headquarters or zone for further investigation process.
(d)Law, SOP & Guidelines
Create proper SOP and guidelines, regardless of the size and scope of its intelligence operations.
Every agency should have mission statements plus policies that can help define the support ofcommand
staff for intelligence purposes.
2. Process
The process of proactive based investigation involved:

―

―

―

―

Step 1 -Focus of the operations
This IBI method only will be used for syndicated cases which are complex and involve a
middle man,and the enforcement agency does not have a forthcoming witness which may leadto the open investigation.It will be carried out through few levels of operation which include
intelligence work, undercover operations, spying and investigation.
Step 2 -Facilities in collecting data and information
This strategy is very important in IBI and the basic technical aid for recording, interception
and tapping is a must as a part of the evidence collecting method.Other facilities needed liketransportation with a fake licence plate number, a safe house in a hidden place and fake
identities for the undercover officers to ensure smooth intelligence operations.
Step 3 -Proactive measurements
Proactive measurements should be always given a priority in IBI. The systematic working
procedures are very important to make sure the operationʼ
s success. This method can beachieved by giving important priorityto the project paper,using ofthe undercover officers andundercover agents, fixing the technical aids and zoning system in daily intelligence work.
Step 4 -Usage of informants
Informant normally is a person who knows better about the crimes which are going to beinvestigated. Informants can help the intelligence in the high profile cases which are hard topenetrate, by providing a better way for the investigation to start.

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Step 5 -Centralized information
The final strategy in IBI is a centralized information system.By having this type of information system, the investigation can be accomplished in a short period of time, effectively andsecretly. Normally a centralized system will be used to profile and intercept the suspects.

3. Training Aspects ― Intelligence Based Investigation Course
As a training provider MACA, acting as the key to change within the organization, the recent
emphasis on intelligence reveals that many M ACC staff involved in intelligence do not fullyunderstandthe concepts of intelligence.Its purpose is to establish an awareness program for the young officers toknow more about the Intelligence Based Investigation.
Training is basically 40 hours in length and should encompass the intelligence process, the importance of the adopting the IBI concepts,proper handling of information and intelligence,the analyticalprocess,the development and implementation of the collection and plans;and also other ethical issues
relating to intelligence.
The course focuses on:i)Explaining the principle of the intelligence model at all levels and the roles of intelligence-led
investigationii) Explaining how the intelligence requirement is necessary to intelligence-led criminal investigationiii) Summarizing security issues in relation to integrity of systems and procedure in an intelligenceenvironmentiv) Demonstrating a thorough understanding of the role of analysts and the need to manage theinput of data
In this course would be shared the best practices and effective strategies, not just focusing on theoffenders but the right and safe path for all agencies that combat organized crime.The main aim is toenhance the strategies and operational focus of organizations, federal, states and local entities.
The course contents focus on;

166―

National Intelligence model ― This model was designed to focus on the collectively
national agenda which involves local issues, cross border issues and serious and organizedcrimes.

―Intelligence cycle ― Intelligence requires a leader to understand the basis for planningand conducting tactical operations,as to whether to use local operations or otherwise depending on the situation,particularly with the environment and potential threat.The leaders roles
in identifying and understanding the key intelligence needs.

―

Information management ― The know how to handle the source person,and integrated
intelligence approaches that bring together many different methods using intelligence as athreads to bind them.

―

Adopting a Proactive Approach ― This program uses proactive intelligence gathering,
technology and teamwork to ferret out offenders in the community and uses that information
to begin with surveillance ahead of the commission of the offence.

―Intelligence Product ― The development of intelligence products requires the same
responsibilities and resources based on four products, i.e. strategic assessments, tacticalassessments, target profiles and problem profiles.

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Analytical Investigation Methods 6 ― To share the very basic investigative analysis
techniques using information collected in databases. Further, one will understand and know
how to use link analysis by various nationwide and regional databases, analyze the dataprocessing and techniques used by investigators for investigation purposes. Develop andanalyze flow charts to enhance the investigation.

―

Operational Order and Briefing ― Operational order,how the operational manner needs
to be executed in applying all the intelligence methods. What a brief should consist of isimportant,but it is also important to know how to give and prepare a brief;above all it must
be good,accurate,brief,and clear,and these should be kept in mind during the brief preparation and execution.

M ACA has conducted this IBI course and it is designed to provide the intelligence analysis skills tothe participants and focuses more on in intelligence process, critical thinking and undercover
approaches and techniques. From the course, it develops knowledge, understanding, skills, attitudes,
behavior and application on all aspects of the intelligence-based investigation, theoretically andpractically. It is also to equip participants with the basic skills and expertise which are fundamental
in the undercover operations. The duration of the course in five days and the methodologies includelectures, practical training on undercover operations, presentations and case studies. Since 2011,
M ACA received 35 participants from 11 countries from all over the world;Sri Lanka,Fiji,Cambodia,
Indonesia, Brunei, Taiwan, Palestine, Swaziland, M aldives, Yemen and Nigeria.
4. Success Stories(a)Operation “Compact”
47 runners and staff of the Computerized Vehicle Inspection Centre(PUSPAKOM )were busted
during the operations.The staff and runners giving the “all clear”sign for faulty vehicles andapproving inspections without the presence of the vehicles by taking bribes.Each of the staff
members and runners were receiving up to RM15,000 monthly as a bribe. ― Intelligence
Division, MACC(b)Operation “
Kawal”
M alaysian Custom Officer at M alaysia-Indonesia border checkpoint received corrupt moneyfrom gas cylinder smugglers for allowing them to transport prohibited items to Indonesia.Gas
cylinders are controlled items in Malaysia under the Control of Supplies Act 1961.They werecaught and investigated under Section 16 & 17 of the MACC Act 2009.The outcome from thisoperation:
8 persons were arrested including one customs officer
5 accused were charged in court for smuggling controlled goods
4 accused pled guilty and one withdrawn charge
1st Accused -Fine RM135,000.
2nd Accused -Fine RM5,000 and one year imprisonment
3rd Accused -Fine RM 5,000 and one year imprisonment
4th Accused -Fine RM35,000
Total Fine
＝ RM 180,000
5. Challenges
From the beginning, legal scholars and even prominent members of the prosecution, quietly
protested against the renewal of the undercover policing.First of all the argument is that there was noadequate legal basis for the systematic use of the undercover methods, which could easily infringe inthe private lives of the citizens. The other argument is that, it is fundamentally wrong if there is aseparation of the“intelligence investigation unit”from the“investigation action unit”in the corruption
investigations cases, simply because they are two sides of the same coin.
6M alaysian AntiCorruption Commission Act 2009.

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Due to uncertainty in the law and less development law in the area of undercover operations in thiscountry, the courts cannot set binding precedent, but case law nevertheless is important for theinterpretation of the law. It has filled the vacuum to some extent.

IV. CONCLUSION
Currently, the Malaysian government must use all resources to eradicate corruption in all sectors,
thus, the IBI mechanism will be a catalyst for other enforcement departments to follow in the journey
to fight corruption.As for M ACC,we would like to actively strengthen exchanges of ideas with others
departments, be it from local government agencies or federal organizations, those who seek to joinhands to fight corruption in the name of prosperity, mutual respect, and efficiency so as to make acontribution to the national economic prosperity.
Lately, among the local government agencies and federal departments, awareness has grown thata structured intelligence investigation mechanism has become indispensable. The label “proactive”,inour view indicating that law enforcement is taking the initiative which should enable it to prevent
crime from occurring or to be present when there are crimes committed, is therefore often used as asynonym for either “undercover MACC activities”or for“
special investigation methods”.Further MACC
will use all the resources that have been vested to it to further enhance the capabilities of its officers
to the maximum.
References:
1. M alaysian Anti-Corruption Commission website: http://www.sprm.gov.my/>.
2. United Nation convention against Corruption,signature and ratification status as of 27 September
2003. http://www.unodc.org/unodc/en/treaties/CAC/signatories.html>.
3. Intelligence-Led Policing: The New Intelligence, Bureau of Justice Assistance, M arilyn Peterson,
2003.
4. Intelligence Collection Activities and Disciplines, Greenbelt, M D:IOSS, April 1991
5. Intelligence Collection Activities and Disciplines, Interagency OPSEC Support Staff, Compendium of
OPSEC Terms, Greenbelt, M D:IOSS, April 1991.
6. M alaysian Anti-Corruption Commission Act 2009.
7. Drugs Enforcement Agency, United States of America, New wave to fight drugs 1984.
8. National Criminal Intelligence Service, NCIS 2000, http://www.ncis.co.uk>.
9. Intelligence-Led Policing: The New Intelligence Architecture, U.S Department of Justice Office
Programs, Marilyn Peterson, 2005.
10.Wright, Richard. 2001. “M anagement of the Intelligence Unit.”In Intelligence 2000: Revising the
Basic Elements,edited by M arilyn B.Peterson,Richard Wright,and Bob M orehouse.Lawrenceville,
NJ: International Association of Law Enforcement Intelligence Analysts and Law Enforcement
Intelligence Unit.
11.1998. “Ten Steps to Establishing a Criminal Intelligence Unit.” In Issues of Interest to Law
Enforcement, Criminal Intelligence: A Vital Police Function, edited by M arilyn B. Peterson.
Sacramento, CA:Law Enforcement Intelligence Unit.
12.2002.“
Toward a M odel for Intelligence-Led Policing in the United States.”In Turnkey Intelligence:
Unlocking Your Agencyʼ
s Intelligence Capability.
a. CD-ROM . Lawrenceville, NJ: International Association of Law Enforcement Intelligence168

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Analysts, Law Enforcement Intelligence Unit, and National White Collar Crime Center.

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