King Lear: Doth any here know me?
This is not Lear: Doth Lear walk thus?
Speak thus?
... Who is it that can tell me who I am?
— William Shakespeare (King Lear, 1605)

I first became interested in “identity” after watching television and cinema shows. My favourite TV series in the 1960s was The Avengers. It was an espionage-cum-science fiction-cum-fairy tale, with Patrick MacNee playing the upper-class hero-spy John Steed who was aided by a succession of pretty, intelligent women.

In one episode, the “other side” plants various men in ordinary British occupations. These “sleepers” lead ordinary lives for years, immersing themselves in their work and family, until they are “triggered” to perform assassinations and acts of sabotage. The trigger is a playing card received in the mail. Steed’s department is flabbergasted to find an ordinary librarian killing a government agent, until they dig deeper into the sleeper’s background.

And then there was the 1962 John Frankenheimer movie The Manchurian Candidate, with Frank Sinatra and Laurence Harvey.

The story begins during the Korean War when Laurence Harvey’s character — the scion of an elite American family — is captured by the enemy and brainwashed. He later returns to the US and with his family ties manages to rise in the political hierarchy. But he is a time bomb as his mind is under the control of enemy handlers. Frank Sinatra’s character somehow manages to piece together the puzzle and prevent a planned political assassination from taking place.

These are just two examples of the dangers of false identity. In the first, we have someone (enemy agent) made to live with a fake identity for a long period. In the second, the person is the real McCoy body-wise, but his mind has been stolen by his brainwashing handlers.

Now, let’s examine other identity issues. A headline in The Star (Jan 20) reads: “Woman declared bankrupt claims identity theft”. The woman’s stolen identity card had been used by fraudsters to obtain a hire purchase loan for an expensive car. Then, legal proceedings were taken against the woman without her knowledge and she ended up being declared a bankrupt by the High Court.

Of course, the woman can expect to have the bankruptcy order annulled once the facts are revealed, but don’t expect the problem to be resolved in a week or a month. One has to go through the process of annulling the bankruptcy order. Even then, the woman can expect to face difficulties because the credit agencies and financial institutions would have records of her default judgment and bankruptcy order.

It is not easy to get all those records erased because (the woman) would not know where they are kept and how to go about erasing those unwarranted details.

And while I am writing this, I read about an eight-year-old American boy who is subjected to double and triple body checks every time he takes a commercial flight because his name is similar to that of a targeted terrorist. It seems he has had to undergo detailed body frisking since he was two! Even after determined efforts by his parents to set the record straight, the red flags would still appear.

Now, consider how 99% of personal identification is carried out in this country. The subject presents his MyKad to a member of the staff, who gives it a cursory glance and hey presto, the transaction, be it a loan, a hire purchase or a government application, is processed forthwith. The member of staff concerned is usually not given any training in documentary examination, much less facial examination. The current system poses few hurdles for fraudsters.

Things are no better when it comes to land transactions. The MyKad plays a prominent role but again, it is only given a quick glance. For land matters, attestations have to be made before a certified lawyer and/or a land administrator. In many cases, lawyers leave the actual signing procedures to their clerks. Such lawyers are in effect trusting non-approved individuals to carry out sign-offs on extremely valuable real estate. Given that such attestations are recognised by the land office, the risks involved are very high indeed.

A senior lawyer once had a really bad experience. In year X, he did the conveyance for a land transaction. Some years later, visitors to his office sombrely informed him that in year X, the purported owner (supposed signatory) had been dead for five years.

In my opinion, many identification problems can be solved by first realising that we are no longer living in the days of small towns or villages, when everyone knew everyone or everyone knew someone who knew you. Our small town-village origins have made us careless about identity theft.

Second, matters of identification should not be left entirely to the junior staff. Management should treat the identification procedure as a function requiring keen and constant attention.

Third, fingerprints should be used more. After all, fingerprints are part and parcel of identity cards and passports. Moreover, fingerprint recognition technology has advanced a great deal. Signatures are extremely difficult to authenticate or to deny responsibility thereof. Added to this is “self-forgery” (sendiri sign sekarang tak mengaku), which stumps even expert handwriting specialists.

Fourth, photographs should be relied on more. Applicants for loans or hire purchase should be made to provide good photographs of themselves. Better still, banking institutions and land offices should have facilities to take photographs.

Photographs are necessary for, say, a car hire purchase applicant previously unknown to the bank. Another situation is where an individual claims he has lost his land title, share certificate or fixed deposit receipt and demands fresh documents. This reminds me of the infamous case of Adorna Properties Sdn Bhd V Boonsum Boonyanit (Adorna). A landowner lost her land to someone (first buyer) who had bought it based on a title obtained through forgery. Imagine! The landowner was sitting quietly in her house when unknown to her, fraudsters applied for a new title for her property, claiming that they had lost the original. They got the title and sold the property to the first buyer.

The question here is, how did both the High Court and Federal Court decide in the first buyer’s favour and against the rightful owner who had done nothing wrong and who had not misled the first buyer in any way. Both the High Court and Federal Court (not the Court of Appeal) rejected two established principles of law: a forgery is a nullity; and a buyer could not get a better title than that of the giver. If both these principles had been applied, the courts would have come to the obvious conclusion that the replacement title obtained by the fraudsters was a forgery and thus of no effect, and that the “fake owner”, not having a proper title, could not pass a good title to the first buyer.

Thankfully, the Federal Court recently decided that the Adorna precedent is no longer good law and that first buyers obtaining titles based on forged applications would no longer get a good title. Some commentators lamented the long delay (10 years), during which Adorna was good authority and during which it served as a fraudster’s charter to work with crooked land office members of staff to concoct new titles without the knowledge of the rightful owners. The modus operandi, I was told, was to target very old landowners with unencumbered titles (not used to secure loans from banks).

There are several lessons to be learnt from the Adorna and other land theft cases. First, it takes a long time to correct an injustice created by a superior court decision. The Adorna revision came about only after four changes of chief justice. For 10 years, the Federal Court was not prepared or did not see it fit to revisit the Adorna decision. There was talk of reversing Adorna by amending the National Land Code but this was not done. It is no easy task to amend the National Land Code because it is necessary to consult the states. Land is a state matter under our constitutional arrangement.

The Adorna case also proves that old and established rules of property and commercial laws should not be changed unless there are very good reasons. The two established rules of laws in this case were the nullity of forgeries and that one could not get a good title from a thief. In rejecting the application of such established rules, the law is rendered unpredictable. This makes it difficult for lawyers to advise their clients. Unintended consequences follow in that it becomes easier to steal a piece of land than goods.

It is disquieting to note that no significant criminal prosecutions have emerged from the numerous land theft cases that have been reported so far. Several parties are involved in a land theft case, which involves forged applications for new land titles — the applicant, the commissioner for oaths/attester of applicant signature, lawyers acting for the title application, land office clerks and officers and quite possibly, the first buyer as well.

There is a constant need to improve and upgrade the land office machinery, which underpins the system of land registration and with it, the largest constituent of wealth in this country. We need good land officers, good investigators and good lawyers to ensure that the system is run with integrity and efficiency.

Coming back to the issue of identification, land theft cases all start with the mistaken or intentional identification of fraudulent applicants of new titles as the rightful owners. Obviously, it is not good enough for lawyers and their clerks and land office officers and their clerks to merely inspect identity cards. My recommendation is that for identification-crucial purposes, we ask for fingerprints, photographs and even verified personal references — things you have to provide when you apply to replace misplaced or lost land titles now. I would also suggest that photographs be required of customers of hire purchase and loans who are not known to lending institutions. This would go a long way towards reducing identity theft and innocent people being declared bankrupt because of loans of which they have no knowledge.

This article appeared in Forum page of The Edge Malaysia, Issue 794, Feb 22-28, 2010.