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Thursday, 4 April 2013

Law & Ethics: Robbing a bank with a gun and with a computer.

Recently, our country is facing with criminal cases involving armed robbery that caused death to the victims. This problem has increased from time to time although  we have laws that govern this criminal case.
Besides armed robbery, we also face with cyber crime which occurs one second every day. For instance, last month our main government website has been hacked by international hackers that give negative impact to the government of Malaysia. In criminal sense, those crimes can be punishable according to our Act.
According to Osborn`s Concise Law Dictionary, a robbery is “a person is guilty of robbery if he steals, and immediately before or at the time of stealing, and in order to steal, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force (Theft Act 1968, s8). The offence of robbery at common law was abolished by the Theft Act 1968, s32.
Section 390 provides for the circumstance when theft constitutes robbery. The words “ for that end” in this section must relate to the commission of theft. Hence, where an assault has no relation to the theft, robbery is not committed. If for example, the accused first assaulted the complainant and then subsequently formed an intention to take his watch, he cannot be liable for robbery but only for theft.
In Bishambar Nath vs Emperor Air ( 1941) Oudh 476 ( HC, Oudh, India, the applicants tried their luck at a dart shooting stall at a carnival. An altercation ensued with the manager. A scuffle broke out and thereafter the applicants removed cash box and money from the table. Ghulam Hassan J “ …in the present case it cannot be contended with any show of reason that whatever injury was caused , it was caused when the assault was made upon the stall manager and his servant with the primary object of enabling the accused to the committing of the theft. I am satisfied, therefore, that the assault or the beating had no relation whatever to the commission of the theft, although there is no doubt that the theft was committed at the same time or immediately afterwards. I am of opinion that the accused are not guilty of an offence under s.394, Penal Code…
The essence of the robbery is that the offender, for the committing of theft or carrying away of or attempting to carry away of property obtained by theft, commits one or the other of the wrongful acts mentioned in s.390. Where a thief after the abandoning stolen property uses violence against his pursuers in order to avoid capture, the theft is not converted into robbery. (see Nga Po Thet, 1917). However, if violence is used, for example, firing a guard while carrying away the booty after the commission of the robbery, it would fall within s.390 and also under the Arm Offences Act (Singapore).
In both Singapore and Malaysia, s.397 deals with the situation where the offender is either “armed with” or “uses” a deadly weapon. In India, each of these situations is dealt with separately, the first in the Indian Penal Code s.398 which is punishable with imprisonment of not less than 7 years for attempt to commit robbery or dacoit when armed with deadly weapon and the second in the Indian Penal Code s.397 which is also punishable with imprisonment of not less than for robbery or dacoit, with attempt to cause death or grievous hurt.
However, there is no s.398 under the Singapore and FMS Penal Codes as the two situations are dealt with in s.397.This question whether s.397 of the Singapore and the FMS Penal Codes create a substantive offence, has been raised in number of cases in Singapore and Malaysia.
One view is that s.397 creates a substantive offence and s.34 can be invoked. This would mean that other miscreants who were not armed with or did not use deadly weapons could be jointly liable with the offender. Another view is that s.397 merely prescribes an additional punishment for this aggravated form of robbery; there is no scope for the application of s.34.
Applicability of s.397 and s.34.
In case of R vs Yeo Kim Watt (1946) 12 MLJ 155 (CCA, Singapore). It was found that the second appellant was armed with a deadly weapon i.e. a pistol but the first appellant was not. The trial judge convicted both the appellants of the offence of robbery under s.392 as the second appellant was armed with the pistol, he was sentenced to an additional punishment under s.397, but not the first appellant. The trial judge then stated a case for the decision of the Court of Criminal Appeal as to whether he was correct in his view that s 34 of the Code has no application to s 397.
Non-applicability of s.397 and s.34.
The non-applicability of s.397 and s.34 has been discussed in many cases. The judges decided the cases based on the prima facie case and the burden of proof i.e. beyond reasonable doubt whether s.397 could be applicable or not applicable to the decided cases.
Ong Hock Sim FJ in PP vs Pua Kia Sing [1977] 2 MLJ 93 ( HC, KL, Malaysia) held that “ in my view, s.397 of the Penal Code does not create any offence and s.34 cannot therefore be invoked for the sole purpose of administering the additional penalty of whipping upon others involved in the offence charged. S.397 does not create an offence but empower the court to impose punishment in addition to any other sentence provided by law for his offence…”
The first recorded cyber crime took place in the year 1820! That is not surprising considering the fact that the abacus, which is thought to be the earliest form of a computer, has been around since 3500 B.C. in India, Japan and China. The area of modern computers, however, began with the analytical engine of Charles Babbage.
In 1820, Joseph-Marie Jacquard. A textile manufacturer in France, produced the loom. This device allowed the repetition of a series of steps in weaving of special fabrics.
The nature of today’s internet and computer networks means that criminal activity can be carried out across national borders with false sense of anonymity. In cyber crimes, computer is either used as target of offence or used as a tool for committing the offence. Hacking, cracking, espionage, cyber-warfare, and malicious computer code viruses are common forms of crimes that target the computer. In short, cyber crimes taking place in the society can be enumerated as follows;
·         Financial Crimes involving cheating, credit card frauds, money laundering, etc.
·         Intellectual Property Crimes such as theft of computer source code, software piracy, copyright infringement, trademark violations, etc
·         Harassments such as Cyber Stalking, cyber defamation, indecent and abusing mails,etc
·         Cyber Attacks and Cyber Terrorism
There is a wider spread/widespread lack of awareness regarding cyber crimes and cyber laws among the people who are constantly using information technology infrastructure for official and personal purpose. The state has recently seen increased cyber crime activities such as email harassment, defamation through web, document forgery, etc. Unless awareness is created among the users, such crimes may not be reported properly to the law enforcement agencies and this will block real use of IT infrastructure by public.
Cyber crime refers to any crime that involves a computer and a network. It harmful acts committed from or against a computer or network that differ from most terrestrial crimes in four ways. They are easy to learn how to commit; they require few resources relative to the potential damage caused; they can be committed in a jurisdiction without being physically present in it; and they are often not clearly illegal.
As this report shows, the laws of most countries do not clearly prohibit cyber crimes. Existing terrestrial laws against physical acts of trespass or breaking and entering often do not cover their “virtual” counterparts. Web pages such as the e-commerce sites recently hit by widespread, distributed denial of service attacks may not be covered by outdated laws as protected forms of property. New kinds of crimes can fall between the cracks, as the Philippines learned when it attempted to prosecute the perpetrator of the May 2000 Love Bug virus, which caused billions of dollars of damage worldwide.
Effective law enforcement is complicated by the transnational nature of cyberspace. Mechanisms of cooperation across national borders to solve and prosecute crimes are complex and slow. Cyber criminals can defy the conventional jurisdictional realms of sovereign nations, originating an attack from almost any computer in the world, passing it across multiple national boundaries, or designing attacks that appear to be originating from foreign sources. Such techniques dramatically increase both the technical and legal complexities of investigating and prosecuting cyber crimes.
 However, in Malaysian context, we have Computer Crime Act 1997 (CCA) , among  one of legislation under Malaysian cyber laws besides the Digital Signature Act 1997, Communication and Multimedia Act 1998 Copyright (Amendment) Act 1997, Malaysian Communication and Multimedia Commission Act 1998 and Optical Disk Act 2000.

This set of Acts has made Malaysia as one of the first countries to enact a comprehensive set of cyber laws. The above Acts were formed for the purpose of safeguarding consumer and service providers besides on-line businesses and owners of intellectual property.
Here, the CCA main concerns are offences due to the misuse of computers and complement the existing criminal legislation. The CCA 97 also covers a wider range of offences compared to CMA 1990 which only covers 3 aspects of computer misuse: unauthorized access, unauthorized access with intent to commit or facilitate other crime and unauthorized modification.

The three other offences included in CCA 97 are wrongful communication, abetment and attempts punishable as offences and presumptions. Besides that, it also covers on obstruction of search. It also makes provisions to facilitate investigations for the enforcement of the Act . The CCA 97 also gives more severe punishment compared to CMA 1990 (UK) where the Act criminalizes some acts and provides for punishment as follows:

Unauthorized access to computer material ( s.3)
Fine not exceeding RM50,000 or imprisonment not exceeding 5 years or both
Unauthorized access with intent to commit or facilitate commission of further offense (s.4)
Fine not exceeding RM150,000 or imprisonment not exceeding 10 years or both.
Unauthorized modification of the contents of any computer (s.5)
(a) Find not exceeding RM100,000 or imprisonment not exceeding 7 years or both

(b) Find not exceeding RM150,000 or imprisonment not exceeding 10 years or both if the act done is with intention of causing injury as defined in the Penal Code.

 There are a lot of tools available on the Internet that can be used to commit all sorts of crimes such as fraud, identity theft, scams, denial of service attacks, hacking and breaking in and so forth. A lot of actions and approaches have been taken by the governments as well as private sectors around the world to try to combat the computer crimes.
There are a lot of tools available on the Internet that can be used to commit all sorts of crimes such as fraud, identity theft, scams, denial of service attacks, hacking and breaking in and so forth. A lot of actions and approaches have been taken by the governments as well as private sectors around the world to try to combat the computer crimes.
Malaysian Communications and Multimedia Commission (MCMC) confirmed that attempts were made to hack into 51 government websites, including its own. MCMC said it had monitored the situation and the level of attacks went down within hours and had left little impact on Malaysian users. Government sites in other countries have also been hacked, including the Central Intelligence Agency in the United States, before this.
The agency had detected "someone" conducting vulnerability scanning (process of gathering information) and also attempts to intrude on the websites. Based on the agency's observations, the attackers were targeting poorly-defended web applications. "Common hacker techniques can be used against web applications with weak passwords or poorly configured sites."

As a conclusion, the differences between robbing a bank with a gun and with a computer is that in sense of elements involved and the relevant laws govern the punishment. The differences in morality is seem clearly from the situation that when someone is involves in the armed robbery , he is morally responsible to the victims and there is some punishment to the accused such in Malaysia, we are governed by Penal Code under s 392,393 and 397 and  Criminal Procedure  Code.
Whereas in cyber crimes it is some sort difficult to prove because it doesn’t involve the grievous hurt or death to the victims as it is in virtual world. The cyber crime including hacking, cracking, cyber-warfare and malicious computer code viruses are common forms of crimes that target the computer. In sense of robbery, the cyber crime occurred in form of counterfeiting currency, creating forged documents, email harassment, defamation through web etc.  The dark side of the Internet in most criminal activities is initiated by individuals or small groups and can be best understood as “disorganized crime”.
Organized crime and cyber crime will never be synonymous-most organized crime will continue to operate in the real world rather than the cyber-world and most cyber-crime will continue to operate in real world rather than the cyber world and most cyber crime will continue to be the result of individuals rather than criminal organizations per se.
In the case of Malaysia, the government has set up legal frameworks that are used to punish the offenders such as the Cyber Laws of Malaysia. Though there is no fool proof approach that can be taken to stop computer crimes from occurring, but by having these approaches mentioned above applied efficiently and effectively, users awareness and involvements it is hope that it will put the problems under control. Meaning that, the government and legislative bodies have to play important roles to enact more strict laws in its implementation, so that the increasing number of armed robbery as well as cyber crime can be reduced in the future.

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