Dangerous Drugs (Forfeiture of Property)
1
LAWS OF MALAYSIA
REPRINT
Act 340
DANGEROUS DRUGS
(FORFEITURE OF PROPERTY)
ACT 1988
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH
PERCETAKAN NASIONAL MALAYSIA BHD
2006
2
DANGEROUS DRUGS (FORFEITURE
OF PROPERTY) ACT 1988
Date of Royal Assent
... ... ... ... ...
11 May 1988
Date of publication in the Gazette ... ...
9 June 1988
PREVIOUS REPRINT
First Reprint
...
...
...
...
...
2001
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LAWS OF MALAYSIA
Act 340
DANGEROUS DRUGS (FORFEITURE
OF PROPERTY) ACT 1988
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title
2.
Interpretation
PART II
OFFENCES IN RELATION TO PROPERTY
3.
Use of property for activity constituting certain offences
4.
Dealing with, or using, holding, receiving or concealing illegal property
5.
Forfeiture of property upon conviction for an offence under section 3
or 4
6.
Forfeiture on proof of offence under section 3 or 4
PART III
FORFEITURE OF PROPERTY OF LIABLE PERSONS
7.
Persons liable to be proceeded against under this Part
8.
Application to the High Court
9.
Notice to show cause against forfeiture
10.
Forfeiture of property in certain cases
11.
Forfeiture of certain types of property
12.
Certain dealings to be null and void
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Section
13.
Proceedings not to abate upon death of person affected
14.
Proceedings under this Part to be within the criminal jurisdiction of the
High Court
PART IV
ARREST, INVESTIGATION AND SEIZURE
15.
Power of arrest and detention
16.
Power of entry, search and seizure
17.
Search of person
18.
Obstruction of inspection and search
19.
Indemnity
20.
Power to intercept communication
21.
Special powers of investigation
22.
Public Prosecutor's powers to obtain information
23.
Public Prosecutor's powers to request information from certain officers
24.
Order by Public Prosecutor in relation to a person intended to be
proceeded against under section 8, or intended to be or being prosecuted
for certain offences
25.
Seizure of movable property
26.
Further provisions relating to seizure of movable property
27.
Special provision relating to seizure of a business
28.
Seizure of immovable property
29.
Dealings with seized property after seizure to be void
30.
Validity of seizure, or sale in consequence thereof, not to be affected
by certain objections
31.
Release of property seized
32.
Forfeiture of property seized under this Act where there is no prosecution,
or no proceedings under Part III or no claim thereto
PART V
FORFEITURE
33.
Vesting of forfeited property in the Government
Dangerous Drugs (Forfeiture of Property)
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PART VI
EVIDENCE AND PROCEDURE
Section
34.
Construction and interpretation of this Act
35.
Presumption as to liable person and illegal property
36.
Admissibility of documentary and other evidence obtained by the Public
Prosecutor in exercise of any power under this Act
37.
Examination of offenders
38.
Protection of informers
39.
Evidence of agent provocateur admissible
40.
Notice or order not to be invalid for error in description
41.
Power of a police officer under other laws relating to criminal procedure
PART VII
ASSISTANCE TO A FOREIGN COUNTRY
42.
Interpretation
43.
Request for assistance and authority to render same
44.
Information and particulars in relation to persons, bodies, etc.
45.
Service of processes or documents
46.
Transmission of copies of statements, or records, or results of investigation
in Malaysia
47.
Examination of witness by a police officer
48.
Examination of witness by a Magistrate
49.
Search of person or premises
50.
Seizure and transmission of property or article
51.
Interception of communication
52.
Exercise of powers of investigation by the Public Prosecutor
53.
Manner or mode of transmission of information, statements, evidence,
movable property, etc., to foreign government or foreign authority
54.
Transfer of a person in custody in Malaysia into the custody of an
authority in a foreign country
55.
Payment by a foreign government to the Malaysian Government under
this Part
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PART VIII
GENERAL
Section
56.
Attempts, abetments and criminal conspiracies punishable as offences
57.
No bail to be granted in respect of certain offences
58.
Offences by bodies corporate or unincorporate and by servants and
agents
59.
Service of any notice or order
60.
General penalty
61.
Rewards
62.
Regulations
63.
Extradition
FIRST SCHEDULE
SECOND
SCHEDULE
Dangerous Drugs (Forfeiture of Property)
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LAWS OF MALAYSIA
Act 340
DANGEROUS DRUGS (FORFEITURE
OF PROPERTY) ACT 1988
An Act to make provisions for offences in relation to property, and
for the seizure and forfeiture of property, connected with activity
related to offences under this Act, the Dangerous Drugs Act 1952,
or any foreign law corresponding to these Acts or to the provisions
for offences under these Acts; for assistance to foreign countries
in relation to matters connected with dangerous drugs; and for
matters connected with the aforesaid provisions.
[10 June 1988]
WHEREAS action has been taken and further similar action is being
threatened by a substantial body of persons both inside and outside
Malaysia--
(1) to organize and carry out trafficking in dangerous drugs,
including their importation into and exportation from Malaysia;
(2) to spread the dependence on dangerous drugs among various
classes of people in Malaysia, thereby causing widespread detriment
to public health, security, safety and morals; and
(3) to acquire property by trafficking in dangerous drugs and
to utilize property for such trafficking;
AND WHEREAS the action taken and threatened is prejudicial to
public order in Malaysia;
AND WHEREAS Parliament considers it necessary to stop such action;
Now, therefore, pursuant to Article 149 of the Constitution BE IT
ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong
with the advice and consent of the Dewan Negara and Dewan
Rakyat in Parliament assembled, and by the authority of the same,
as follows:
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PART I
PRELIMINARY
Short title
1. This Act may be cited as the Dangerous Drugs (Forfeiture of
Property) Act 1988.
Interpretation
2. (1) Subject to subsection (2), and unless the context otherwise
requires, terms and expressions used in this Act have the same
meaning as assigned thereto in the Dangerous Drugs Act 1952 [Act
234].
(2) In this Act, unless the context otherwise requires--
"associate", in relation to a person, includes--
(a) any person who had been or is residing in the residential
premises (including appurtenances) of such person;
(b) any person who had been or is an agent or nominee of
such person;
(c) any person who had been or is managing the affairs or
keeping the accounts of such person;
(d) any partnership firm of which such person, or any agent
or nominee of his, is or had been a partner or a person
in charge or control of its business or affairs;
(e) any corporation within the meaning of the Companies
Act 1965 [Act 125], of which such person, or any agent
or nominee of his, had been or is a director or had been
or is in charge of or control of its business or affairs, or
in which such person, together with any agent or nominee
of his, has or have, or had, shares to the total value of
not less than ten per centum of the total issued capital
of the corporation;
(f) any person who had been or is a partner, or a person in
charge or control of the business or affairs, of a partnership
firm referred to in paragraph (d) at any time when such
person, or any agent or nominee of his, had been or is
a partner in the partnership firm;
Dangerous Drugs (Forfeiture of Property)
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(g) any person who had been or is a director, or a person in
charge or control of the business or affairs, of a corporation
referred to in paragraph (e) at any time when such person,
or any agent or nominee of his, had been or is a director,
or had been or is in charge or control of the business or
affairs, of the corporation, or at any time when such
person, together with any agent or nominee of his, has
or have, or had, shares to the total value of not less than
ten per centum of the total issued capital of the corporation;
(h) any person who had been or is an agent of any partnership
firm or corporation referred to in paragraph (d) or (e)
respectively;
(i) any person who had been or is keeping the accounts of
any partnership firm or corporation referred to in paragraph
(d) or (e) respectively;
(j) the trustee of any trust, where--
(i) the trust has been created by such person; or
(ii) the total value of the assets contributed by such
person to the trust at any time, whether before or
after the creation of the trust, amounts, or had
amounted, at any time, to not less than twenty per
centum of the total value of the assets of the trust;
(k) any person who has in his possession any property belonging
to such person; and
(l) any person who is indebted to such person;
"bank" means a bank licensed under the *Banking Act 1973
[Act 102], or an Islamic bank licensed under the Islamic Banking
Act 1983 [Act 276], or a merchant bank, or any person carrying
on any banking business under any written law, or a licensed
finance company under the **Finance Companies Act 1969 [Act
6], or the National Savings Bank established under the Bank Simpanan
Nasional Act 1974 [Act 146], or any co-operative society registered
under any written law relating to co-operative societies;
*NOTE--The Banking Act 1973 [Act 102] has since been repealed by the Banking and Financial
Institutions Act 1989 [Act 372]see section 128 of Act 372.
**NOTE--The Finance Companies Act 1969 [Act 6] has since been repealed by the Banking and
Financial Institutions Act 1989 [Act 372]see section 128 of Act 372.
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"banker's books" includes ledgers, day books, cash books, account
books and all other books and documents used in the ordinary
course of the business of a bank;
"business" means any activity carried on for the purpose of gain
or profit and includes all property derived from or used in or for
the purpose of carrying on such activity, and all rights and liabilities
arising from such activity;
"conviction" includes any finding of guilt or any order involving
any finding of guilt by any court of competent authority in Malaysia
or outside Malaysia, regardless whether or not the conviction or
finding of guilt is ordered to be recorded, and whether or not the
person convicted or found guilty is sentenced to any punishment;
"corresponding foreign law" or "foreign law corresponding to"
means the provision of any law of any country, territory or place
outside Malaysia which is similar in whole, or in part, or in substance,
to the Malaysian law in relation to which this expression is used;
"dealing" includes--
(a) a purchase, sale, loan, charge, mortgage, lien, pledge,
c a v e a t , transfer, delivery, assignment, subrogation,
transmission, gift, donation, trust, settlement, deposit,
withdrawal, transfer between accounts, extension of credit;
(b) any purchase or sale of any securities, monetary instrument,
or other instrument whatsoever by whatever means effected;
(c) any agency or grant of power of attorney; and
(d) any other disposition or dealing in whatever form, or of
whatever description or nature, howsoever styled, which
results in any right, interest, title or privilege, whether
present or future or whether vested or contingent, in the
whole or part of any property being conferred on any
person;
"designated police officer" means a police officer of the rank
of Superintendent or above, designated in writing by name or
office by the Inspector-General of Police for the purposes of this
Act either generally or in relation to any specific provision of this
Act;
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"diminished in value", in relation to any property, means the
whole or part of the property being expended, utilized, destroyed,
or being subjected to any dealing, process or other act, so that it
ceases to exist, or is reduced in value or size, or is altered in
character;
"document" includes--
(a) any letters, figures, marks, inscription, writing, sign,
caricature, picture, drawing, or representation in any form;
and
(b) any visual recording (whether of still or moving images)
or sound recording,
on any substance, material, thing or article;
"final acquittal" means an acquittal at the level of original
jurisdiction where there is no appeal against the acquittal, but
where there is an appeal against such acquittal, or against any
conviction whether at the level of original jurisdiction or at a
lower level of appellate jurisdiction, it means an order at the final
level of appellate jurisdiction providing for an acquittal, and "finally
acquitted" has a corresponding meaning; and for the purpose of
this definition "appeal" includes any proceedings in whatever form
and howsoever styled in relation to the decision given at the level
of original jurisdiction or a lower level of appellate jurisdiction,
but does not include any proceedings in relation to a pardon or
exercise of leniency by an executive authority;
"final conviction" means a conviction at the level of original
jurisdiction where there is no appeal against the conviction or
against the sentence or other order arising from the conviction, but
where there is such an appeal, or where there is an appeal against
any order of acquittal, discharge or otherwise whether given at the
level of original jurisdiction or at a lower level of appellate
jurisdiction, it means an order at the final level of appellate jurisdiction
p r o v i d i n g for a conviction, and "finally convicted" has a
corresponding meaning; and for the purpose of this definition
"appeal" includes any proceedings in whatever form and howsoever
styled in relation to the decision given at the level of original
jurisdiction or a lower level of appellate jurisdiction, but does not
include any proceeding in relation to a pardon or exercise of
leniency by an executive authority;
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"financial institution" includes a bank, or any person within
Malaysia, which, in fact, lawfully or unlawfully, carries on any
banking business or finance business as defined in the Banking
Act 1973 or the Finance Companies Act 1969, respectively, and
any bank or person outside Malaysia, which, in fact, lawfully or
unlawfully, carries on any similar business;
"forfeited" means, in relation to any property, that property
forfeited to the Government of Malaysia in accordance with this
Act;
"held" means, in relation to any property, that property held by
a holder;
"hold" means, in relation to any property, the holding of that
property by a holder;
"holder" includes, in relation to any property, any person who
is the owner of, any person who is in possession of, any person
who is in occupation of, any person who has the custody or control
of, and any person who has any other right, interest, title, claim,
power, duty or obligation whatsoever in relation to, that property;
"illegal property" means any property, whether within or outside
Malaysia--
(a) which is wholly or partly derived or obtained from or by
means of any prohibited activity carried out by any person
after the commencement of this Act;
(b) which is the income, earnings or assets wholly or partly
derived or obtained from or by means of any property
referred to in paragraph (a);
(c) which is wholly or partly derived or obtained from or by
means of any property referred to in paragraph (a) or (b);
(d) which is wholly or partly traceable or attributable to any
property referred to in paragraph (a), (b), or (c), or to any
income, earnings or assets of any such property;
(e) which, after the commencement of this Act, is or was
used to assist or facilitate any prohibited activity;
Dangerous Drugs (Forfeiture of Property)
13
(f) which is the subject matter of an offence under section
3, 4, or subsection 24(7) or of any Scheduled offence
committed after the commencement of this Act; or
(g) which, due to any circumstance such as, but not limited
to, its nature, value, location or place of discovery, or the
time, manner or place of its acquisition, or the person
from whom it was acquired, or its proximity to other
property referred to in the foregoing paragraphs, can be
reasonably believed to be property falling within the
scope of any of the foregoing paragraphs;
"liable person" means a person referred to in section 7 as being
liable to be proceeded against under Part III;
"Minister" means the Minister charged with the responsibility
for internal security;
"monetary instrument" means coin or currency of Malaysia or
of any other country, traveller's cheque, personal cheque, bank
cheque, money order, investment security in bearer form or otherwise
in such form that title thereto passes upon delivery or upon delivery
and endorsement, and negotiable instrument in bearer form or
otherwise in such form that title thereto passes upon delivery or
upon delivery and endorsement;
" p r e s c r i b e d " means prescribed by regulations made under
section 62;
"proceedings under this Act" means any proceedings under any
provision of this Act, including any prosecution for an offence
under this Act;
"prohibited activity" means any act, activity, or conduct taking
place in whole or in part within or outside Malaysia which--
(a) constitutes an offence under section 3 or 4 of this Act,
or under any foreign law corresponding thereto or which
constitutes a Scheduled offence; or
(b) although not constituting such an offence, is of such a
nature or occurs in such circumstances that it could be
reasonably believed therefrom that it would have ultimately
resulted in or led to the commission of such an offence;
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"property" means any movable or immovable property, and
includes--
(a) any right, interest, title, claim, chose in action, power,
privilege, whether present or future and whether vested
or contingent, in relation to any property, or which is
otherwise of value;
(b) any conveyance executed for conveying, assigning,
appointing, surrendering, or otherwise transferring or
disposing of immovable property whereof the person
executing the conveyance is proprietor or possessed or
wherein he is entitled to a contingent right, either for his
whole interest or for any less interest;
(c) any monetary instrument;
(d) any other instrument or securities;
(e) any business; and
(f) any other tangible or intangible property;
"public body" includes--
(a) the Government of Malaysia;
(b) the Government of a State;
(c) any local authority and any other statutory authority
established by, and exercising powers vested in it by, any
written law;
(d) any department, service or undertaking of the Government
of Malaysia, the Government of a State, a local authority,
other statutory authority, or of any authority, organization,
body or individual specified under paragraph (e); or
(e) any authority, organization or body, or any individual
referred to by name or office, specified by the Minister
by notification in the Gazette to be a public body for the
purposes of this Act;
"public officer" includes any person in the permanent or temporary
employment of a public body;
"purchaser in good faith for valuable consideration" means any
transferee, assignee, chargee, mortgagee, pledgee, holder of a lien,
or lessee, of any property where the transfer, assignment, charge,
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mortgage, pledge, lien, or lease was obtained by him for adequate
valuable consideration in money or money's worth, without notice--
(a) that the property is illegal property; or
(b) of any circumstances from which, if reasonable inquiries
had been made, it might have been discovered that the
property is illegal property;
"relative", in relation to a person, means--
(a) spouse of the person;
(b) brother or sister of the person;
(c) brother or sister of the spouse of the person;
(d) any lineal ascendant or descendant of the person;
(e) any lineal ascendant or descendant of the spouse of the
person;
(f) spouse of a person referred to in paragraph (b), (c), (d)
or (e);
(g) any lineal descendant of a person referred to in paragraph
(b) or (c);
(h) brother or sister or spouse of the brother or sister of any
lineal ascendant of the person or his spouse; or
(i) any lineal descendant or spouse of any lineal descendant
of a person referred to in paragraph (h);
"Scheduled offence" means an offence specified or described in
the First Schedule to this Act;
"securities" includes stocks, bonds, shares, debentures, funds
and certificates of deposit;
"senior police officer" shall have the same meaning as in the
Police Act 1967 [Act 344];
"trust" includes any legal obligation in favour of any beneficiary
subject to which any person holds any property.
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(3) For the purpose of the definition of "relative" in subsection
(2)--
(a) the adoption of any person by another under any written
law of Malaysia or any country, territory or place outside
Malaysia, or under any custom recognized by any class
of persons in Malaysia or in any country, territory or
place outside Malaysia, shall be treated as creating between
the adopter and the adopted person the same natural
r e l a t i o n s h i p as the adoptive relationship, and other
relationships in relation thereto shall be determined
accordingly; and
(b) references therein to a relationship include, where relevant,
a relationship by the half blood.
PART II
OFFENCES IN RELATION TO PROPERTY
Use of property for activity constituting certain offences
3. (1) Any person who, whether within or outside Malaysia,
whether directly or indirectly, whether on behalf of himself or on
behalf of any other person, enters into or causes to be entered into
any dealing in relation to any property, or in any other manner uses
or causes to be used any property--
(a) with the intention, of promoting, managing, establishing,
or carrying on any act, activity or conduct which constitutes
a Scheduled offence; or
(b) with the intention of facilitating or assisting in the
promotion, management, establishment or carrying on of
the act, activity or conduct referred to in paragraph (a),
whether or not such Scheduled offence has been committed, or any
person has been charged with or convicted of such offence, shall
be guilty of an offence and shall be sentenced to imprisonment for
a term of not less than five years and not more than twenty years.
(2) It shall not be an offence under subsection (1) where--
(a) the act which constitutes an offence under subsection (1)
is committed wholly outside Malaysia; and
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(b) the act, activity or conduct referred to in paragraph (1)(a)
or (b) constitutes exclusively an offence under a foreign
law referred to in Item 5 of the First Schedule to this Act.
Dealing with, or using, holding, receiving or concealing illegal
property
4. (1) Any person who, whether within or outside Malaysia whether
directly or indirectly, whether on behalf of himself or on behalf
of any other person, enters into or causes to be entered into any
dealing in relation to any property, or otherwise uses or causes to
be used, or holds, receives, or conceals any property, knowing or
having reason to believe that such property or any part thereof is
illegal property, shall be guilty of an offence and shall be sentenced
to imprisonment for a term of not less than five years and not more
than twenty years.
(2) Where the property which is the subject matter of an offence
under subsection (1) is illegal property by reason of its being
related to an act, activity or conduct which constitutes an offence
referred to in paragraph (a) of the definition of "prohibited activity"
under subsection 2(2), the person charged for the offence under
subsection (1) shall be liable therefor whether or not any person
has been charged with or convicted of the said offence referred
to in paragraph (a) of the said definition of "prohibited activity".
(3) It shall not be an offence under subsection (1) where--
(a) the act which constitutes an offence under subsection (1)
is committed wholly outside Malaysia; and
(b) such act relates to illegal property which is property
derived or obtained from or by means of an act, activity
or conduct which constitutes an offence exclusively under
a foreign law referred to in paragraph (a) of the definition
of "prohibited activity" under subsection 2(2).
Forfeiture of property upon conviction for an offence under
section 3 or 4
5. Where any person is convicted of an offence under section 3
or 4, the court which convicts him shall forfeit all the property
which is the subject matter of that offence or which has been used
for the commission of that offence:
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Provided that no conveyance which has been used for the
commission of the offence shall be forfeited if the offence was
committed by a person other than the owner or person in charge
of the conveyance and it is proved to the court that the use of such
conveyance for the commission of the offence was without the
consent of the owner or person in charge of the conveyance and
was not due to any neglect, default, or lack of reasonable care by
the owner or the person in charge of the conveyance.
Forfeiture of proof of offence under section 3 or 4
6. Where it is proved to the satisfaction of the court that an
offence under section 3 or 4 has been committed, the court shall
make an order for the forfeiture of all property which is the subject
matter of that offence or which has been used for the commission
of that offence, notwithstanding that no person may have been
convicted of the offence:
Provided that the proviso to section 5 shall apply in relation to
an order for forfeiture under this section.
PART III
FORFEITURE OF PROPERTY OF LIABLE PERSONS
Persons liable to be proceeded against under this Part
7. (1) The following persons shall be liable to be proceeded
against under this Part:
(a) every person--
(i) who has been finally convicted of an offence under
section 3, 4, or subsection 24(7), or under a foreign
law corresponding to these sections, or of a Scheduled
o f f e n c e , committed at any time after the
commencement of this Act;
(ii) who is or was detained after the commencement of
this Act pursuant to an order of detention or restriction
made under any law, in respect of any activity
relating to or involving the trafficking in any
dangerous drug:
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19
Provided that the activity forming the ground of detention
took place after the commencement of this Act;
(iii) who holds, conceals, receives, or uses or causes or
allows to be used, any illegal property, knowing or
having reason to believe the same to be illegal
property;
(b) every relative of a person referred to in paragraph (a);
(c) every associate of a person referred to in paragraph (a);
(d) any holder, whether or not a relative as is referred to in
paragraph (b), or an associate as is referred to in paragraph
(c), (hereinafter in this paragraph referred to as the "present
holder") of any property which was at any time previously
held by a person referred to in paragraph (a) unless the
present holder or, as the case may be, any one who held
such property after the person referred to in paragraph
(a) and before the present holder, is or was a purchaser
of the property in good faith for valuable consideration;
(e) where a person referred to in paragraph (a), (b), (c) or
(d) is deceased, his personal representative, or, where
there is no personal representative, such person or persons
having a beneficial interest in the estate of the deceased
as may be specified by a Sessions Court upon application
by the Public Prosecutor and after the Sessions Court has
given an opportunity to such person or persons to be
heard in the matter.
(2) A person shall be a relative, associate, or holder, as is
referred to in paragraph (1)(b), (c) or (d) respectively, if he is or
was at any time such relative, associate or holder, and regardless
whether he became such relative, associate, or holder in relation
to the person referred to in paragraph (a) before or after the person
referred to in paragraph (a) became a liable person.
(3) No proceedings against a liable person shall be instituted
under this Part if there is pending against him in any court in
Malaysia any prosecution for an offence under section 3 or 4, or
for an offence referred to in Item 1, 2, 3 or 4 of the First Schedule,
and where during the pendency in the High Court of proceedings
against a liable person under this Part there is instituted against
him in a court in Malaysia any prosecution for any of the aforesaid
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offences, the proceedings in the High Court under this Part shall
be stayed until the proceedings in respect of such prosecution have
been finally concluded in the court of original jurisdiction or,
where there is an appeal, in the court of final appellate jurisdiction.
(4) Where any proceedings in the High Court against a liable
person under this Part are prohibited from being instituted, or are
stayed, under subsection (3) such prohibition or stay shall not--
(a) affect any earlier seizure of any property, or any earlier
order of the Public Prosecutor, under Part IV, or any
other earlier exercise by a police officer or the Public
Prosecutor of any of his powers under Part IV, arising
out of such person being a liable person, and such seizure
or such order, or such exercise of powers, as the case
may be, shall continue to remain in full force and effect
during the pendency of the prosecution and thereafter
until the final conclusion of the proceedings under this
Part; or
(b) prevent the further or continued exercise, or the fresh
exercise, by a police officer or the Public Prosecutor of
this respective powers under Part IV arising out of such
person being a liable person.
Application to the High Court
8. (1) If the Public Prosecutor has reason to believe that any
person is a liable person he may apply ex parte to the High Court
for an order of forfeiture of all the properties of which such person
is a holder and which the Public Prosecutor has reason to believe
are illegal properties.
(2) The application, supported by an affidavit or affidavits,
shall--
(a) identify the liable person to be proceeded against, state
his address of residence or business, if known, and other
relevant particulars, which are known;
(b) state the grounds on which he is a liable person;
(c) identify the properties to be forfeited, set out their estimated
value, and, if known, their location; and
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21
(d) state any other matter, circumstance or information which,
in the opinion of the Public Prosecutor, is relevant to the
application.
(3) An application under subsection (1) shall be made by filing
the same with the Registrar of the High Court who shall thereupon
immediately fix a date for its hearing before the High Court.
(4) For the avoidance of doubt, it is hereby declared that
successive applications may be made under this section--
(a) against any person provided that--
(i) the proceedings under this Part in respect of the
earlier application against him under this section
have been finally concluded in the High Court, or
where there is an appeal, in *the Federal Court; and
(ii) the fresh application does not relate to any property
which was the subject matter of any earlier application
against him;
(b) in respect of any property provided that--
(i) the proceedings under this Part in respect of the
earlier application in which it is included as the
subject matter of the application have been finally
concluded in the High Court, or where there is an
appeal, in *the Federal Court, and it has been decided
that the property is not illegal property; and
(ii) the fresh application is not against any person against
whom any earlier application under this section
had been made.
Notice to show cause against forfeiture
9. (1) If at the hearing of the application of the Public Prosecutor
under subsection 8(1), the High Court is satisfied that the application
is made in accordance with the requirements of section 8, the
Court shall issue a notice upon the liable person specified in the
application (hereinafter in this Act referred to as the "person affected")
and annexing thereto the affidavit or affidavits referred to in
subsection 8(2), and calling upon the person affected to attend
*NOTE--Previously referred to "the Supreme Court"see section 46 of the Constitution (Amendment)
Act 1994 [Act A885].
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before the High Court on a date specified in the notice, which shall
not be less than thirty days from the date of the notice, to show
cause why all or any of the properties identified under paragraph
8(2)(c), should not be forfeited.
(2) A notice under subsection (1) shall, in addition to being
served on the person affected, be published in the Gazette on the
same date on which it is issued, or as soon as practicable thereafter.
(3) Where a notice to any person under subsection (1) specifies
any property as being held on behalf of such person by any other
person, or as being transferred or sold to, or deposited or kept
with, any other person, a copy of the notice shall be served upon
such other person.
(4) Where before a notice is issued under subsection (1) the
Public Prosecutor informs the High Court that the liable person
referred to in his application has died regardless whether he died
before or after the application was filed, and that no specification
of a beneficiary or beneficiaries has been made by a Sessions
Court under paragraph 7(1)(e), the notice shall be issued against
the personal representative of such person, and where there is no
personal representative, against such beneficiary or beneficiaries
of his estate as may be specified by the High Court upon an
application by the Public Prosecutor, and after giving such beneficiary
or beneficiaries an opportunity to be heard.
(5) The Public Prosecutor may at any stage during the pendency
of any proceedings under subsection (1), apply to the Court for an
amendment of the notice issued under that subsection--
(a) by the exclusion there from of any property specified
therein;
(b) by the inclusion therein of any property not specified
therein; or
(c) in any other respect,
and the Court may, after giving the person affected an opportunity
to be heard, make such order on the application as the Court deems
just and proper, and where the Court grants the application, whether
with or without modifications, it may give such directions in the
matter as it may consider necessary, expedient or desirable.
Dangerous Drugs (Forfeiture of Property)
23
Forfeiture of property in certain cases
10. (1) At the hearing of the notice to show cause issued under
subsection 9(1), the Court shall proceed to consider any evidence
that may be given by the person affected or by any other witness
tendered by him showing--
(a) that he is not a liable person;
(b) that all or any of the properties specified in the Public
Prosecutor's application are not illegal properties; or
(c) that he is not the holder of all or any of such properties
specified in the Public Prosecutor's application.
(2) The Public Prosecutor shall be entitled--
(a) to cross-examine the person affected or any other witness
tendered by him;
(b) where the person affected does not give evidence himself
as a witness, to examine the person affected on oath or
affirmation as to any matter relevant to the application;
and
(c) to adduce evidence of witnesses to rebut the evidence
adduced by or on behalf of the person affected.
(3) Where at the hearing of the notice to show cause under
subsection 9(1) the Public Prosecutor satisfies the Court that the
person against whom the notice to show cause has been issued
cannot be served with the notice as he cannot be traced or has
absconded or is outside Malaysia and cannot be compelled to
attend before the Court, or where at any time during the proceedings
under this section the person affected fails to attend the proceeding
after he has been served with the said notice to show cause, the
proceeding shall be continued to its final conclusion in his absence.
(4) The Court shall, at the conclusion of the proceedings under
subsections (1) and (2), record a finding--
(a) whether the person affected is a liable person;
(b) whether all or any of the properties specified in the Public
Prosecutor's application are illegal properties; and
(c) whether the person affected is the holder of all or any of
such illegal properties.
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(5) Where the Court records a finding under subsection (4) to
the effect that the person affected is a liable person, that all or any
of the properties specified in the Public Prosecutor's application
are illegal properties and that the person affected is the holder of
such illegal properties, it shall order that such properties, subject
to the provisions of this Part, be forfeited.
(6) Where the Court finds that all or any of the properties
specified in the Public Prosecutor's application are illegal properties
but that the person affected is not the holder thereof, then regardless
of whether or not the Court finds the person affected to be a liable
person the Court shall order that such properties be forfeited,
unless another person claims to be lawfully entitled thereto as a
purchaser thereof in good faith for valuable consideration or the
Public Prosecutor informs the Court that he intends to make a
fresh application in respect of such illegal properties against a
liable person other than the person affected.
(7) Where another person claims under subsection (6) to be
lawfully entitled to the illegal properties as a purchaser thereof in
good faith for valuable consideration the Court shall proceed to
consider such claim, and if, after giving an opportunity to the
Public Prosecutor to rebut such claim, the Court is satisfied that
such person is not a purchaser thereof in good faith for valuable
consideration, it shall order that such properties be forfeited.
Forfeiture of certain types of property
11. (1) Where the Court is satisfied that any property which the
Court has ordered to be forfeited under subsection 10(5)--
(a) cannot be located or traced;
(b) has been disposed of to a purchaser in good faith for
valuable consideration;
(c) has been removed from Malaysia;
(d) is outside Malaysia;
(e) has been commingled with other property which cannot
be separated or divided without difficulty; or
(f) has been diminished in value,
Dangerous Drugs (Forfeiture of Property)
25
the Court shall order that any other property of the person affected
be forfeited to the value of any property referred to in paragraph
(a), (c), (d), or (e), or, in the case of property referred to in
paragraph (b) or (f), to the extent of the disposal, or to the extent
to which it has been diminished in value, as the case may be, and
where there is no other property available for forfeiture, or where
the value of the other property ordered to be forfeited is less than
the value of the property originally ordered to be forfeited, the
Court shall order that an amount equal to the full value of the
property originally ordered to be forfeited, or to such full value
less the value of the other property ordered to be forfeited, as the
case may be, be forfeited, and if such person fails to pay such
amount within such period, not exceeding thirty days from the date
of such order, as the Court may direct, the Court shall sentence
him to imprisonment for a term of not less than three years and
not more than seven years.
(2) Where the person in respect of whose property an order of
forfeiture under section 10 has been made had died before the
order was made or dies after it is made and subsection (1) applies
in respect of any property so forfeited, the said subsection shall
have effect against the estate of the deceased in the same manner
as it would have had against him and his property:
Provided that no order for payment of an amount shall be made
against the personal representative of the estate of the deceased
or any beneficiary of such deceased if no property in the estate
of the deceased is available for forfeiture or for payment of such
amount.
(3) (a) For the purposes of this section, the value of any property
shall be its market value at the date on which the order under
subsection 10(5) was made, or such value as may be determined
by a person having special means of knowledge in respect of such
property.
( b ) In the event of any dispute over the value of any property,
the court shall determine the value after hearing representations
by the person affected and the Public Prosecutor.
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Certain dealings to be null and void
12. (1) Any dealing, contract, or other thing whatsoever effected,
done, or entered into, by any person or between any persons after
the issue of a notice under subsection 9(1) in respect of any property
referred to in, or affected by, the said notice shall be null and void,
and shall not be registered or otherwise howsoever given effect to
by any person or authority.
(2) For so long as the proceedings under this Part in respect of
the notice under section 9 have not been finally concluded in the
High Court or in *the Federal Court no action, suit or other proceeding
of a civil nature shall be instituted or if they are already pending,
be maintained or continued in any court or before any other authority
against the person named in the notice, or in respect of whose
estate or property the notice is issued, or in respect of any property
referred to in, or affected by, the notice, and no attachment, execution
or other similar process shall be commenced or if it is already
pending, be continued with against any such person or in respect
of any property on account of any claim, judgment or decree,
regardless whether such claim was made, or such judgment or
decree was given, before or after the notice was issued, except at
the instance of the Government of Malaysia, or of any State, or
at the instance of a local authority or other statutory body, or
except with the prior consent in writing of the Public Prosecutor.
(3) Nothing contained in this section shall derogate from the
provisions of subsection 24(8), 24(9) or section 29.
Proceedings not to abate upon death of person affected
13. (1) Proceedings under this Part shall not abate upon the death
of the person affected but shall be continued to their final conclusion,
regardless whether or not such death results from the execution of
a sentence of death for any offence under any written law and
whether or not such offence is related to or involves any dangerous
drug, and where proceedings under this Part are instituted against
a person who is under a sentence of death such proceedings shall
not impede, delay or in any manner or for any reason affect the
process for the execution of such sentence.
*NOTE--Previously referred to "the Supreme Court"see section 46 of the Constitution (Amendment)
Act 1994 [Act A885].
Dangerous Drugs (Forfeiture of Property)
27
(2) Where the person affected dies before the conclusion of any
proceedings under this Part, but after the issue of the notice against
him under subsection 9(1), the proceedings shall be continued
against the personal representative of the deceased liable person
or, if there is no such personal representative, such beneficiary or
beneficiaries of the estate of the deceased liable person as may be
specified by the High Court upon application by the Public Prosecutor,
and after the High Court has given an opportunity to such beneficiary
or beneficiaries to be heard in the matter.
(3) Where at any time after any specification of a beneficiary
or beneficiaries has been made by a Sessions Court under paragraph
7(1)(e) or by the High Court under subsection 9(4) and subsection
(2), representation to the estate of the deceased has been duly
taken out, the Public Prosecutor shall apply to the High Court for
the said beneficiary or beneficiaries to be substituted by the personal
representative, and the High Court shall order accordingly after
giving an opportunity to be heard to the said beneficiary or
beneficiaries and the said personal representative, and in making
any such order the High Court may give all such directions of a
transitional, incidental or ancillary nature, or as may be deemed
necessary by the High Court.
Proceedings under this Part to be within the criminal jurisdiction
of the High Court
14. Proceedings under this Part shall be dealt with by the High
Court in the exercise of its criminal jurisdiction and the law relating
to criminal procedure in the High Court shall apply to such
proceedings subject to such modifications as may be prescribed in
this Part or in any regulations made under this Act.
PART IV
ARREST, INVESTIGATION AND SEIZURE
Power of arrest and detention
15. (1) Every offence under this Act shall be a seizable offence
for the purposes of the Criminal Procedure Code [Act 593].
(2) Any police officer may arrest without a warrant--
(a) any person whom he reasonably suspects to have committed
or to be committing an offence under this Act;
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(b) any person whom he reasonably believes to be a liable
person under paragraph 7(1)(a); or
(c) without prejudice to paragraph (b), any person against
whom the Public Prosecutor intends to make an application
under section 8 and has notified his intention in writing
to a police officer.
(3) Where a person arrested under subsection (2) is serving a
sentence of imprisonment, or is under detention under any law
relating to preventive detention, or is otherwise howsoever in
lawful custody, he shall, upon an order in writing by a senior
police officer, be produced before such officer or before any other
senior police officer at such place as may be specified in the order
for the purpose of investigations into the matter in respect of
which he is liable to be arrested under subsection (2), and for such
purpose he may be kept in police custody for a period not exceeding
fourteen days; and while in such custody such person shall be
deemed to be continuing to serve his term of imprisonment or
detention, as the case may be.
(4) A person arrested under subsection (2) shall be informed of
the provisions of subsection (2) under which he is being arrested,
and, except in a case falling under subsection (3), shall within
twenty-four hours (excluding the time of any necessary journey)
be produced before a Magistrate, and shall not be further detained
without the order of a Magistrate.
(5) A Magistrate may make an order for the detention in police
custody of the person produced before him under subsection (4)
for a period not exceeding fourteen days if he is satisfied that such
detention is necessary for the purpose of investigations in relation
to the matter in respect of which he has been arrested.
Power of entry, search and seizure
16. (1) Whenever it appears to any senior police officer that there
is reasonable cause to suspect that in or on any premises there is
concealed or deposited any property liable to forfeiture under this
Act, or as to which an offence under this Act is reasonably suspected
to have been committed, or any book or document directly or
indirectly relating to or connected with any dealing, or intended
Dangerous Drugs (Forfeiture of Property)
29
dealing, whether within or outside Malaysia, in respect of any
property liable to seizure or forfeiture under this Act or which
would, if carried out, be an offence under this Act, he may at any
time by day or by night--
(a) enter such premises and there search for, and seize and
detain, any such property, book or document;
(b) search any person who is in or on such premises, and for
the purpose of such search, detain such person and remove
him to such place as may be necessary to facilitate such
search;
(c) arrest any person who is in or on such premises in whose
possession any property liable to seizure or forfeiture
under this Act is found, or whom the officer reasonably
believes to have concealed or deposited such property;
(d) seize and detain any book or document found in or on
such premises or on such person;
(e) break open, examine, and search, any article, container
or receptacle; or
(f) stop, search and detain any conveyance.
(2) Such officer may if it is necessary so to do--
(a) break open any outer or inner door or window of such
premises and enter thereinto;
(b) forcibly enter such premises and every part thereof;
(c) remove by force any obstruction to such entry, search,
seizure and removal as he is empowered to effect; or
(d) detain every person found in or on such premises, until
such premises have been searched.
(3) Subsections (1) and (2) shall not apply in relation to banker's
books in a bank.
Search of person
17. (1) A senior police officer may search, or cause to be searched,
any person whom he has reason to believe has on his person any
property liable to seizure or forfeiture under this Act, or any article
whatsoever necessary for the purpose of any investigation under
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this Act, and for the purpose of such search may detain such
person for such period as may be necessary to have the search
carried out, which shall not in any case exceed twenty-four hours
without the authorization of a Magistrate, and may remove him in
custody to such place as may be necessary to facilitate such search.
(2) A search of a person under this section or under section 16
may extend to a medical examination of his body, both externally
and internally, by a medical officer.
(3) No female person shall be searched under this section or
under section 16 except by another female.
Obstruction of inspection and search
18. Any person who--
(a) refuses any officer authorized to enter or search, access
to any premises, or fails to submit to search by a person
authorized to search him;
(b) assaults, obstructs, hinders or delays him in effecting any
entrance which he is entitled to effect under this Act, or
in the execution of any duty imposed or power conferred
by this Act;
(c) fails to comply with any lawful demands of any police
officer in the execution of his duty under this Act;
(d) refuses or neglects to give any information which may
reasonably be required of him and which he has it in his
power to give;
(e) fails to produce or conceals or attempts to conceal any
property, document, or books in relation to which there
is reasonable ground for suspecting that an offence has
been or is being committed under this Act, or which is
liable to seizure under this Act;
(f) rescues or endeavours to rescue or causes to be rescued
any thing which has been duly seized;
(g) furnishes to any officer as true, information which he
knows or has reason to believe to be false; or
Dangerous Drugs (Forfeiture of Property)
31
(h) before or after any seizure, breaks or otherwise destroys
anything to prevent the seizure thereof, or the securing
of the same,
shall be guilty of an offence and shall, on conviction, be liable to
a fine not exceeding two thousand ringgit or to imprisonment for
a term not exceeding one year or to both.
Indemnity
19. (1) The Government shall not be liable to make good any
damage which any goods or any property may sustain as a result
of an entry, search, seizure or detention under any provision of this
Act, unless such damage shall have been caused by the wilful
neglect or default of a public officer employed by the Government.
(2) If the amount of compensation in respect of any damage so
caused is not agreed upon between the Government and the claimant,
it shall upon application by the Public Prosecutor or the person
claiming the compensation be summarily ascertained and determined
by a Court of a First Class Magistrate.
Power to intercept communication
20. (1) Notwithstanding the provisions of any other written law,
whether enacted before or after the commencement of this Act, the
Public Prosecutor, if he considers that it is likely to contain any
information which is likely to be relevant for the purpose of any
investigation into an offence under section 3, 4, or subsection
24(7), or any corresponding foreign law, or for the purpose of any
proceedings under Part III, or for any other purpose under this Act,
may, on the application of a police officer not below the rank of
Superintendent of Police authorize any police officer--
(a) to intercept, detain and open any postal article in the
course of transmission by post;
(b) to intercept any message transmitted or received by any
telecommunication; or
(c) to intercept or listen to any conversation by any
telecommunication.
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(2) When any person is charged with an offence under section
3, 4, or subsection 24(7), or when any proceedings are taken under
Part III, any information obtained by a police officer in pursuance
of subsection (1), whether before or after such person is charged,
or before or after such proceedings are commenced, shall be
admissible at his trial in evidence, or in the proceedings as aforesaid,
as the case may be.
(3) An authorization by the Public Prosecutor under subsection
(1) may be given either orally or in writing, and either to any
particular police officer or generally to the Inspector-General of
Police and all other police officers:
Provided that where an oral authorization is given, the Public
Prosecutor shall, as soon as practicable, reduce the authorization
into writing.
(4) A certificate by the Public Prosecutor that the action taken
by a police officer in pursuance of subsection (1) had been authorized
by him under subsection (1) shall be conclusive evidence that it
had been so authorized, and such certificate shall be admissible
in evidence without proof of signature thereof.
(5) No person shall be under any duty, obligation or liability,
or be in any manner compelled, to disclose in any proceedings the
procedure, method, manner or means, or any matter whatsoever
related thereto, with regard to anything done under paragraph (a),
(b) or (c) of subsection (1).
(6) For the purpose of this section--
"postal article" shall have the same meaning as in the *Post
Office Act 1947 [Act 211]; and
"telecommunication" shall have the same meaning as in the
**Telecommunications Act 1950 [Act 20].
Special powers of investigation
21. (1) Notwithstanding the provisions of any other written law,
whether enacted before or after the commencement of this Act, the
Public Prosecutor, if satisfied that it is necessary for the purpose
of any investigation into an offence under section 3, 4, or subsection
*NOTE--The Post Office Act 1947 [Act 211] has since been repealed by the Postal Services Act
1991 [Act 465]see section 50 of Act 465.
**NOTE--The Telecommunications Act 1950 [Act 20] has since been repealed by the Communications
and Multimedia Act 1998 [Act 588]see section 273 of Act 588.
Dangerous Drugs (Forfeiture of Property)
33
24(7), or any corresponding foreign law, or for the purpose of any
proceedings under Part III, or for any other purpose under this Act,
may by order in writing authorize any senior police officer named
in the order to make an investigation in the matter in such manner
or mode as may be specified in the order.
(2) Without prejudice to the generality of subsection (1), the
order may authorize the investigation, inspection, and taking of
copies, of any banker's book or bank account, or any share account
or purchase account, expense account or any other account, or the
inspection of any safe deposit box, in any bank, financial institution,
company, firm, association, society, or other body whatsoever,
and shall be sufficient authority for the disclosure or production
by any person of all or any information or accounts or documents
or articles as may be required by the officer so authorized.
(3) Any person who wilfully fails or refuses to disclose any
such information or to produce any such accounts or documents
or articles to the person so authorized shall be guilty of an offence
and shall, on conviction, be liable to a fine not exceeding two
thousand ringgit or to imprisonment for a term not exceeding one
year or to both.
(4) Where any person discloses any such information or produces
any such accounts or documents or articles, to the person so
authorized, neither the first mentioned person nor any other person
on whose behalf or direction, or as whose agent or employee, the
first mentioned person may be acting, shall, on account of such
disclosure or production, be liable to any prosecution for any
offence under or by virtue of any law, or to any proceeding or
claim in any form or of any description by any person under or
by virtue of any law, or under or by virtue of any contract, agreement
or arrangement, whether express or implied, or otherwise howsoever.
Public Prosecutor's powers to obtain information
22. (1) Notwithstanding the provisions of any other written law,
whether enacted before or after the commencement of this Act, for
the purpose of any investigation into, or any proceedings relating
to, an offence under section 3, 4, or subsection 24(7), or any
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corresponding foreign law suspected to have been committed by
any person, or for the purpose of any proceedings under Part III
against any person, the Public Prosecutor may, by written notice--
(a) require any such person to furnish a sworn statement in
writing--
(i) identifying each item of movable or immovable
p r o p e r t y , whether within or outside Malaysia,
belonging to or possessed by such person, or by his
relatives or associates, and specifying the date on
which each of the properties so identified was
acquired and the manner in which it was acquired,
whether by way of any dealing, bequest, inheritance,
or otherwise howsoever;
(ii) identifying each property sent out of Malaysia by
him or by his relatives or associates during such
period as may be specified in the notice;
(iii) setting out the estimated value and location of each
of the properties identified under subparagraphs (i)
and (ii), and if any of such properties cannot be
located, the reason therefor;
(iv) stating in respect of each of the properties identified
under subparagraphs (i) and (ii) whether the property
is held by himself or by any other person on his
behalf, whether it has been transferred, sold to, or
kept with any other person, whether it has been
diminished in value since its acquisition by him,
and whether it has been commingled with other
property which cannot be separated or divided without
difficulty;
(v) setting out all other information relating to his
p r o p e r t i e s , business, travel, or other activities
whatsoever, or to the properties, business, travel or
other activities whatsoever, of his relatives or
associates, as may be specified in the notice; and
(vi) setting out all his sources of income, earnings or
assets;
(b) require any relative or associate of such person, or any
other person in respect of whom the Public Prosecutor
Dangerous Drugs (Forfeiture of Property)
35
has reasonable grounds to believe that the information
from him will assist in the investigation, to furnish a
sworn statement in writing--
(i) identifying each movable or immovable property,
whether within or outside Malaysia, belonging to
or possessed by him, and specifying the date on
which each of the properties identified was acquired,
and the manner in which it was acquired, whether
by way of any dealing, bequest, inheritance, or
otherwise howsoever;
(ii) identifying each property sent out of Malaysia by
him during such period as may be specified in the
notice;
(iii) setting out the estimated value and location of each
of the properties identified under subparagraphs (i)
and (ii), and if any of such properties cannot be
located, the reason therefor;
(iv) stating in respect of each of the properties identified
under subparagraphs (i) and (ii) whether the property
is held by himself or any other person on his behalf,
whether it has been transferred, sold to, or kept
with any other person, whether it has been diminished
in value since its acquisition by him, and whether
it has been commingled with other property which
cannot be separated or divided without difficulty;
(v) setting all other information relating to his properties,
business, travel, or other activities whatsoever, as
may be specified in the notice; and
(vi) setting out all his sources of income, earnings or
assets;
(c) require any public officer to produce or furnish any
document, or a certified copy of any document, which is
in his possession or under his control; and
(d) require any officer or employee of any bank or financial
institution, or any person who is in any manner or to any
extent responsible for the management and control of the
affairs of any bank or any financial institution, to furnish
copies of any or all accounts, documents and records
relating to any person to whom a notice can be or has
been issued under paragraph (a) or (b).
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(2) Every person to whom a notice is sent by the Public Prosecutor
under subsection (1) shall, notwithstanding the provisions of any
written law, whether enacted before or after the commencement
of this Act, or of any oath, undertaking or requirement of secrecy
to the contrary, or of any obligation under any contract, agreement
or arrangement, whether express or implied, to the contrary, comply
with the terms of the notice within such time as may be specified
therein, and any person who wilfully neglects or fails so to comply
with the same shall be guilty of an offence and shall, on conviction,
be liable to a fine not exceeding two thousand ringgit or to
imprisonment for a term not exceeding one year or to both.
(3) Where any person discloses any such information or produces
any such accounts or documents or articles, to the person so
authorized, neither the first mentioned person nor any other person
on whose behalf or direction or as whose agent or employee, the
first mentioned person may be acting, shall, on account of such
disclosure or production, be liable to any prosecution for any
offence under or by virtue of any law, or to any proceeding or
claim in any form or of any description by any person under or
by virtue of agreement or arrangement, whether express or implied,
or otherwise howsoever.
Public Prosecutor's powers to request information from certain
officers
23. (1) Notwithstanding anything contained in any other written
law, whether enacted before or after the commencement of this
Act, the Public Prosecutor shall have power to require any public
officer within such time as he may specify to furnish such information
in relation to any person, question or matter as in the opinion of
the Public Prosecutor will be useful for, or relevant to, the purposes
of this Act, and such public officer shall be legally bound to
furnish the same to the Public Prosecutor within the specified
time.
(2) Where any public officer furnishes any information under
subsection (1) he shall not on such account be liable to any prosecution
for any offence under or by virtue of any law, or to any proceeding
or claim in any form or of any description by any person under
or by virtue of any law, or under or by virtue of any contract,
agreement or arrangement, whether express or implied, or otherwise
howsoever.
Dangerous Drugs (Forfeiture of Property)
37
Order by Public Prosecutor in relation to a person intended
to be proceeded against under section 8, or intended to be or
being prosecuted for certain offences
24. (1) Where the Public Prosecutor--
(a) intends to make an application to the High Court under
section 8 against any person;
(b) intends to institute against any person any prosecution
for an offence under section 3 or 4, or for an offence
referred to in Item 1, 2, 3 or 4 of the First Schedule; or
(c) has already instituted against any person any prosecution
f o r an offence as mentioned in paragraph (b) and
proceedings in respect of such prosecution are pending,
the Public Prosecutor may, by order published in the Gazette,
name or describe such person and require the person so named or
described to comply with such provisions as may be set out in the
order.
(2) For the purpose of paragraph (1)(c), proceedings in respect
of a prosecution shall be regarded as pending where the decision
of the court of original jurisdiction in which they are being held
has not yet been delivered.
(3) Without prejudice to the generality of subsection (1), the
order referred to therein may require the person named or described
in the order--
(a) to disclose to the Public Prosecutor within such time as
may be specified in the order the value, nature, whereabouts,
and all other relevant particulars, of all properties, or any
particular property, held by such person or by any relative
or associate of his;
(b) to disclose to the Public Prosecutor within such time as
may be specified in the order the value, nature, whereabouts,
and all other relevant particulars, of all properties or any
particular property, held by him or by any relative or
associate of his during the five years preceding the date
of the order, not being a period before the commencement
of this Act;
(c) not to deal with, expend or dispose of any property held
by him without the prior written approval of the Public
Prosecutor;
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(d) not to remove from or send out of Malaysia, or cause to
be removed from or sent out of Malaysia, any property
held by him without the prior written approval of the
Public Prosecutor; or
(e) not to leave Malaysia without the prior written approval
of the Public Prosecutor, and to surrender all his travel
documents, whether issued by the Government of Malaysia
or any other government, to the Director General of
Immigration within one week of the publication of the
order.
(4) An order under subsection (1) may require all relatives and
associates generally of the person named or described under
subsection (1) in the order, or any particular class or description
of his relatives or associates, or any particular relative or associate
of his, specified in the order, to comply with such provisions as
may be contained in the order, including provisions corresponding
to paragraphs (3)(a), (b), (c) and (d) in relation to properties held
by the relative or associate.
(5) An order under subsection (1) may also require all persons
generally, or any particular class or description of persons specified
in the order, who hold, or any particular person specified in the
order who holds, otherwise than as a purchaser in good faith for
valuable consideration, any property in which any person named
or described under subsection (1) in such order, has an interest or
had an interest during the five years preceding the date of the
order, not being a period before the commencement of this Act--
(a) to disclose to the Public Prosecutor within the time specified
in the order the value, nature, whereabouts, and all other
relevant particulars of such property;
(b) not to remove from or send out of Malaysia, or cause to
be removed from or sent out of Malaysia, any such property
without the prior written approval of the Public Prosecutor;
and
(c) not to deal with, expend, or dispose of any such property
without the prior written approval of the Public Prosecutor.
(6) Where an order has been made under subsection (1), the
Public Prosecutor may by notice in writing require any person to
whom the order applies to make all such disclosures, or give all
such information, or to do or refrain from doing any particular act,
Dangerous Drugs (Forfeiture of Property)
39
in relation to any property affected by the order for the purpose
of securing compliance with the order by any person to whom the
order applies, and any such notice shall be without prejudice to
the liability under subsection (7) of the person to whom the notice
is issued for failure to comply with any provision of the order,
whether or not such provision is affected by the notice.
(7) Where an order has been published under subsection (1),
it shall as from the date of such publication, be an offence for any
person to--
(a) contravene any requirement, direction, term or other
provision of the order or of any notice issued under
subsection (6);
(b) conceal, hide, destroy or alter any object, article, material
or thing, or accounts, books or other documents, or any
entries therein, of or relating to any person or property
affected by the order;
(c) remove from or send out of Malaysia or cause to be
removed from or sent out of Malaysia, anything referred
to in paragraph (b) without the prior written approval of
the Public Prosecutor; and
(d) deal with, expend, dispose of, or remove from or send
out of Malaysia, or cause to be dealt with, expended,
disposed of, or removed from or sent out of Malaysia,
any property affected by the order, without the prior
written approval of the Public Prosecutor,
and any person who commits such offence shall, on conviction,
be liable to a fine not exceeding five hundred thousand ringgit.
(8) Any dealing, contract, or other thing whatsoever, effected,
done, or entered into, by any person or between any persons after
the publication of an order under subsection (1) in respect of any
property affected by such order, except any dealing effected under
this Act by a public officer in his capacity as such officer, or
otherwise by or on behalf of the Government of Malaysia, or the
Government of a State, or a local authority or other statutory body,
shall be null and void, and shall not be registered or otherwise
howsoever given effect to by any person or authority.
(9) For so long as an order under subsection (1) remains in
force no action, suit or other proceeding of a civil nature shall be
instituted or if they are already pending, be maintained or continued
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in any court or before any other authority against the person named
or described under subsection (1) in such order, or in respect of
any property affected by such order, and no attachment, execution
or other similar process shall be commenced, or if any such process
is pending, be maintained or continued, against such person or in
respect of such property on account of any claim, judgment or
decree, regardless whether such claim was made, or such judgment
or decree was given, before or after such order was made and
published under subsection (1), except at the instance of the
Government of Malaysia, or the Government of a State, or at the
instance of a local authority or other statutory body, or except with
the prior consent in writing of the Public Prosecutor.
(10) An order under subsection (1)--
(a) shall, in the case of an order against a person referred to
in paragraph (1)(a), cease to remain in force if no application
to the High Court under section 8 is filed by the Public
Prosecutor in the High Court against such person within
fourteen days of the date of publication of the order;
(b) shall, in the case of an order against a person referred to
in paragraph (1)(b), cease to remain in force if such
person is not charged in court for an offence under section
3 or 4, or an offence referred to in Item 1, 2, 3 or 4 of
the First Schedule, within fourteen days of the date of
publication of the order;
(c) shall cease to remain in force if the High Court records
a finding under subsection 10(4) that the person named
in the order under subsection (1) is not a liable person,
or in the case of a person prosecuted for an offence as
aforesaid, if he is finally acquitted of the offence; and
(d) shall cease to apply to any property in respect of which
the High Court records a finding under subsection 10(4)
that it is not illegal property,
and the Public Prosecutor shall publish in the Gazette a notification
of every such cessation within ten days of the cessation taking
effect.
(11) The Public Prosecutor may at any time amend or revoke
an order under subsection (1), but any such revocation shall not
be a bar to any fresh order being made under subsection (1) at any
time thereafter against any person to whom the earlier order applied
or in respect of any property affected by the earlier order.
Dangerous Drugs (Forfeiture of Property)
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(12) A notification under subsection (10) or a revocation or
amendment of an order under subsection (11) may contain provisions
in respect of any matter which is consequential, ancillary or incidental
to such notification, revocation or amendment.
(13) Where an order under subsection (1) ceases to remain in
force, or ceases to apply to any property under subsection (10)
such cessation shall not be a bar to any fresh order under subsection
(1) being made at any time thereafter against any person to whom
the earlier order applied, or in respect of any property affected
b y the earlier order, provided such fresh order relates to a
fresh application or a fresh prosecution as is referred to in
subsection (1).
Seizure of movable property
25. (1) Any movable property which a senior police officer
reasonably suspects to be the subject matter of an offence under
this Act, or which has been used for the commission of that offence,
or illegal property, shall be liable to seizure.
(2) Whenever any movable property is seized under subsection
(1), the officer effecting the seizure shall as soon as practicable
serve a notice in writing of such seizure and the grounds thereof
on the owner of such property, if such owner and his whereabouts
are known:
Provided that such notice shall not be required to be served
where such seizure is made in the presence of the person against
whom proceedings under Part III are intended to be taken, or in
the presence of the owner of such property or his agent, or in the
case of a ship or an aircraft, in the presence of the master or pilot,
as the case may be.
(3) Subsection (1) shall not apply to any ship of more than one
hundred tons burden, or to any train or to any aircraft, belonging
to any person carrying on a regular lawful passenger or freight
service within Malaysia or to and from Malaysia, except where
prosecution for an offence under this Act is to be instituted, or
proceedings under Part III are to be taken, against the owner of
such ship, train or aircraft.
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Further provisions relating to seizure of movable property
26. (1) Where any movable property is seized under this Act, the
seizure shall be effected by removing the movable property from
the possession of the person from whom it is seized and placing
it under the custody of such person or authority and at such place
as a senior police officer may determine:
Provided that where it is not practicable, or it is otherwise not
desirable, to effect removal of such property he may leave it at the
premises in which it is seized under the custody of such person
as he may detail for the purpose.
(2) Notwithstanding subsection (1), when any movable property,
including any movable property referred to in subsection (4), has
been seized under this Act, a senior police officer superior in rank
to the senior police officer who effected the seizure may at his
discretion--
(a) temporarily return the movable property to the owner
thereof or to the person from whose possession, custody
or control it was seized, or to such person as a senior
police officer may consider entitled thereto, subject to
much terms and conditions as a senior police officer may
impose, and, subject, in any case, to sufficient security
being furnished to the satisfaction of a senior police
officer that the movable property shall be surrendered to
a senior police officer on demand being made by a senior
police officer and that the said terms and conditions, if
any, shall be complied with; or
(b) return the movable property to the owner thereof or to
the person from whose possession, custody or control it
was seized, or to such person as a senior police officer
may consider entitled thereto, with liberty for the person
to whom the movable property is so returned to dispose
of the same, such return being subject to security being
furnished to the satisfaction of a senior police officer in
an amount not less than an amount which, in the opinion
of a senior police officer, represents the open market
value of such property on the date on which it is so
returned subject to the condition that if the property is
forfeited under this Act, the security shall be forfeited
under subsection (3) in lieu of the property.
Dangerous Drugs (Forfeiture of Property)
43
(3) Where any person fails to comply with the terms under
which any property was temporarily returned under paragraph
(2)(a), or where any property returned under paragraph (2)(b) is
forfeited, the security furnished by the person to whom the property
was returned shall be forfeited, and in the case of a person to
whom any property was returned under paragraph (2)(a), he shall
be guilty of an offence and shall be sentenced to a fine of not less
than two and not more than ten times the amount of the security
furnished by him under paragraph (2)(a), and to imprisonment for
a term not exceeding one year.
(4) When any movable property seized under this Act consists
o f money, shares, securities, stocks, debentures or any
chose-in-action, in the possession or under the control of any
person other than the person against whom the prosecution, or
proceedings under Part III, is or are intended to be taken, the
seizure shall be effected by the senior police officer serving an
order on such person--
(a) prohibiting him from using, transferring, or dealing with
such property; or
(b) requiring him to surrender the property to a senior police
officer in the manner and within the time specified in the
order.
(5) Where the movable property seized is liable to speedy decay
or deterioration, or is property which cannot be maintained without
difficulty, or which it is not practicable to maintain, and which
cannot be dealt with under subsection (2), a senior police officer
may sell or cause to be sold the same by public auction or in such
manner as may be practicable and hold the proceeds of the sale,
after deducting therefrom the costs and expenses of the maintenance
and sale of the property, to abide the result of any proceedings
under this Act.
Special provision relating to seizure of a business
27. (1) Where a designated police officer reasonably suspects
that any business--
(a) is being carried on by or on behalf of any person against
whom prosecution for an offence under section 3, 4, or
subsection 24(7) of this Act or any proceeding under Part
III is intended to be commenced;
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(b) is being carried on by or on behalf of a relative or an
associate of such person;
(c) is a business in which such person, or a relative or associate
of his has an interest which amounts to or carries a right
to not less than thirty per centum of the entire business;
(d) is a business over which such person, his relative or
associate has management or effective control, either
individually or together,
such designated police officer may do any or all of the following
things:
(aa) seize the business in the manner provided under this Part;
(bb) by an order in writing--
(i) direct the extent and manner in which the business
may be carried on;
(ii) specify a public officer or officers by name or
office to supervise, direct or control the business,
including its accounts, or to carry on the business
or such part of it as may be specified;
(iii) direct that all or any proportion of the proceeds or
profits of the business be paid to the Public Trustee
and retained by him pending further directions in
respect thereof by the designated police officer;
(iv) prohibit any director, officer or employee from being
in any manner involved in the business with effect
from the date of the letter of prohibition; or
(v) direct that the premises where the business was
carried on to be closed and, if necessary or expedient,
placed under guard or custody.
(2) Where the public officer in respect of whom an order intended
to be made under subsection (1) is other than a police officer, such
order shall not be made in relation to him except, in the case of
a member of the public service, with the consent of the Secretary
General of the Ministry in which the public officer is serving, and
in the case of any other public officer, with the consent of the
executive head of the authority, body or organization in which he
is employed.
Dangerous Drugs (Forfeiture of Property)
45
(3) Where an order is made by a designated police officer
under paragraph (1)(bb), he may include in the order, or give
subsequently thereto either in writing or orally, any direction of
an ancillary or consequential nature, or which may be necessary,
for giving effect to, or for the carrying out of, the order.
(4) An order under paragraph (1)(bb) may at any time be varied
or revoked by a designated police officer and where he so varies
or revokes it, he may give any direction of an ancillary or
consequential nature, or which may be necessary, for giving effect
to, or for the carrying out of, such variation or revocation.
(5) Save as otherwise provided in subsection (6), neither the
Government nor any public officer shall, in consequence of any
order under subsection (1) be responsible for the payment of any
moneys, dues, debts, liabilities or charges whatsoever payable to
any person in respect of the business, or in respect of any movable
or immovable property owned, possessed, occupied or used, by
any person in relation to the business.
(6) Where a public officer or officers are carrying on any activities
of the business in pursuance of an order under subparagraph
(1)(bb)(ii), they shall be responsible for the payment of the wages
of such employees of the business as are engaged in performing
any work in relation to those activities for the period during which
such public officer or officers carry on those activities, and such
wages shall be paid out of the profits derived from such activities,
or, if there are no such profits or if such profits are insufficient,
from the proceeds derived from such activities, or if there are no
such proceeds or if such proceeds are insufficient, from the assets
and properties of the business; "wages" in this subsection means
the wages payable under the contract of employment between the
employee and the business.
(7) The provisions of this section shall have effect notwithstanding
anything inconsistent or in conflict therewith, or contrary thereto,
contained in this Act.
Seizure of immovable property
28. (1) Where a police officer of or above the rank of Assistant
Superintendent of Police reasonably suspects any immovable property
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to be the subject matter of an offence under this Act, or illegal
property, it shall be liable to seizure, and such seizure shall be
effected--
(a) by the issue of a Notice of Seizure by a police officer
of or above the rank of Assistant Superintendent of Police
setting out therein the particulars of the immovable property
which is seized insofar as such particulars are within his
knowledge, and prohibiting all dealings in such immovable
property;
(b) by posting, where practicable, a copy of such Notice in
a conspicuous position on the immovable property; and
(c) by serving a copy of such Notice on the Land Administrator
or the Registrar of Titles, as the case may be, in Peninsular
Malaysia, or on the Registrar of Titles or Collector of
Land Revenue, as the case may be, in Sabah, or on the
Registrar of Titles or Director of Lands and Surveys, as
the case may be, in Sarawak, of the area in which the
immovable property is situated.
(2) The Land Administrator, the Collector of Land Revenue,
the Director of Lands and Surveys, or the Registrar of Titles, as
the case may be, referred to in subsection (1) shall immediately
thereupon endorse the terms of the Notice of Seizure on the document
of title in respect of the immovable property in the Register at his
office.
(3) Where an endorsement of a Notice of Seizure has been
made under subsection (2), the Notice shall have the effect of
prohibiting all dealings in respect of the immovable property, and,
accordingly, after such endorsement has been made no dealing in
respect of the immovable property shall be registered, regardless
whether it was effected before or after the issue of such Notice
or the making of such endorsement.
(4) Subsection (3) shall not apply to a dealing effected under
this Act or by virtue of this Act by a public officer in his capacity
as such officer, or otherwise by or on behalf of the Government
of Malaysia, or the Government of a State, or a local authority or
other statutory body.
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47
Dealings with seized property after seizure to be void
29. (1) After seizure of any property has been effected under this
Act, and so long as such seizure remains in force, any dealing,
contract, or other thing whatsoever, effected, done, or entered into
by any person or between any persons in respect of such property,
except any dealing effected under this Act or by virtue of this Act
by a public officer in his capacity as such officer, or otherwise by
or on behalf of the Government of Malaysia, or the Government
of a State, or a local authority, or other statutory body, shall be
null and void, and shall not be registered or otherwise howsoever
given effect to by any person or authority.
(2) Subsection (1) shall be in addition to and not in derogation
of subsections 28(3) and (4).
(3) For so long as a seizure of any property under this Act
remains in force, no action, suit or other proceeding of a civil
nature shall be instituted, or if it is pending immediately before
such seizure, be maintained or continued, in any court or before
any other authority in respect of the property which has been so
seized, and no attachment, execution or other similar process shall
be commenced, or if any such process is pending immediately
before such seizure, be maintained or continued, in respect of such
property on account of any claim, judgment or decree, regardless
whether such claim was made, or such judgment or decree was
given, before or after such seizure was effected, except at the
instance of the Government of Malaysia or the Government of a
State, or at the instance of a local authority or other statutory body,
or except with the prior consent in writing of the Public Prosecutor.
Validity of seizure, or sale in consequence thereof, not to be
affected by certain objections
30. Where seizure of any property has been effected under this
Act, the validity of such seizure, or of any sale or other form of
disposal of such property, or of any destruction thereof in accordance
with the provisions of this Act, in consequence of such seizure,
shall not be affected by any objection thereto relating to the manner
in which the seizure or sale was effected, or the place at which
it was effected, or the person from whom it was effected, or the
person to whom any notice of the seizure or sale was given, or
omitted to be given, or any failure to conform to any procedural
provision of this Act or of any other written law in effecting the
seizure or sale.
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Release of property seized
31. (1) Where property has been seized under this Act, a designated
police officer other than the police officer who effected the seizure,
may at any time thereafter before it is forfeited under this Act
release such property to such person as he determines to be lawfully
entitled to the property if he is satisfied that such property is not
liable to forfeiture under this Act or under the Dangerous Drugs
Act 1952, and is not otherwise required for the purpose of any
proceedings under this Act, or for the purpose of any prosecution
under any other law, and in such event neither the officer effecting
the seizure, nor the Government, nor any person acting on behalf
of the Government, shall be liable to any proceedings by any
person if the seizure thereof and the release thereof had been
effected in good faith.
(2) A record in writing shall be made by the officer effecting
any release of any property under subsection (1) in respect of such
release specifying therein in detail the circumstances of, and the
reason for, such release, and he shall send a copy of such record
to the Public Prosecutor and to the Inspector-General of Police
within seven days of the release.
Forfeiture of property seized under this Act where there is no
prosecution, or no proceedings under Part III or no claim
thereto
32. (1) Where any property has been seized under this Act, other
than under or by virtue of Part VII, and--
(a) no prosecution for any offence under any law is instituted
with regard to such property;
(b) no proceedings are commenced by the Public Prosecutor
for the forfeiture of such property under Part III; and
(c) no claim in writing is made by any person that he is
lawfully entitled to such property and that it is not liable
to forfeiture under this Act or under the Dangerous Drugs
Act 1952,
within three months from the date of its seizure, the property shall
become forfeited immediately upon the expiration of the said period
of three months.
Dangerous Drugs (Forfeiture of Property)
49
(2) Where within three months from the date of the seizure of
any property under this Act, a claim in writing is made thereto by
any person in the terms mentioned in paragraph (1)(c), the Public
Prosecutor shall within fourteen days after the expiry of the said
period of three months, refer such claim to a Sessions Court for
its decision.
(3) The Sessions Court to which a claim is referred under
subsection (2) shall issue a summons requiring the person claiming
that he is lawfully entitled to the property, and the person from
whom it was seized, if he and his whereabouts are known, to
appear before the court and upon such appearance or in default of
such appearance, upon due service of such summons being proved,
the Sessions Court shall proceed to the examination of the matter
and if satisfied that no offence under this Act or under the Dangerous
Drugs Act 1952 has been committed in respect of the property
claimed and that such property is not illegal property, shall order
the same to be released to the person claiming the same upon proof
that he is lawfully entitled thereto, and shall, in any other case,
order the property to be forfeited.
(4) The provisions of this section shall be without prejudice to
the power of a police officer to release from seizure any property
under section 31.
(5) Where property has been forfeited under subsection (1), it
shall not be a bar to any prosecution for an offence under any law
being instituted in respect of such property at any time thereafter.
PART V
FORFEITURE
Vesting of forfeited property in the Government
33. (1) Where any property is forfeited under this Act, the property
shall vest in the Government free from any right, interest or
encumbrance of any person except a right, interest or encumbrance
which is held by a purchaser in good faith for valuable consideration
and which is not otherwise null and void under any provision of
this Act.
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(2) Where any person who holds any encumbrance to which
the property is subject claims that he holds the encumbrance as
a purchaser in good faith for valuable consideration and that the
encumbrance is not otherwise null and void under any provision
of this Act, and the Government disputes such claim, the Public
Prosecutor may apply to the High Court to determine the question
and the Court shall determine the same after giving an opportunity
to be heard to the person holding the encumbrance and hearing the
reply of the Public Prosecutor to any representations which may
be made before that Court by the person holding the encumbrance.
(3) Where any property is vested in the Government under
subsection (1), the vesting shall take effect without any transfer,
conveyance, deed or other instrument whatsoever and where any
registration of such vesting is required under any law, the authority
empowered to effect the registration shall do so in the name of
such public officer or such authority, person or body as the Public
Prosecutor may specify.
(4) Where the property vested in the Government under subsection
(1) is immovable property, the vesting shall upon production to
the Registrar of Titles or the Land Administrator, as the case may
be, in Peninsular Malaysia, or to the Registrar of Titles or the
Collector of Land Revenue, as the case may be, in Sabah, or to
the Registrar of Titles or the Director of Lands and Surveys, as
the case may be, in Sarawak, of the order of Court forfeiting the
immovable property, or in the case of property forfeited under
subsection 32(1), of a Certificate of the Public Prosecutor certifying
that it has been forfeited thereunder, be registered in the name of
the Federal Lands Commissioner.
PART VI
EVIDENCE AND PROCEDURE
Construction and interpretation of this Act
34. In any proceedings under this Act the provisions of this Act
shall be construed and interpreted so as to give effect to the
purposes of this Act without regard for ambiguities, or infirmities
of language, or other defects or deficiencies therein, or to objections
which are trivial in nature or which do not affect the merits or the
substance of the issues before the court.
Dangerous Drugs (Forfeiture of Property)
51
Presumption as to liable person and illegal property
35. Where any proceedings under this Act are brought against any
person or in respect of any property on the ground that such person
is a liable person or that such property is illegal property, the court
shall presume that person to be a liable person and that property
to be illegal property, unless the person proceeded against proves
to the contrary by admissible evidence and where he adduces any
such evidence, the Public Prosecutor shall have the right to rebut
the same.
Admissibility of documentary and other evidence obtained by
the Public Prosecutor in exercise of any power under this Act
36. Where the Public Prosecutor or any senior police officer has
obtained any document or other evidence in exercise of his powers
under this Act or by virtue of this Act, such document or copy of
the document or other evidence, as the case may be, shall be
a d m i s s i b l e in evidence in any proceedings under this Act,
notwithstanding anything to the contrary in any written law.
Examination of offenders
37. (1) Whenever two or more persons are charged with an offence
under this Act, the court may require one or more of them to give
evidence as a witness or witnesses for the prosecution.
(2) Any person referred to in subsection (1) who refuses to be
sworn or to answer any question shall be dealt with in the same
manner as witnesses so refusing may be dealt with by a court.
(3) Every person required to give evidence under subsection
(1), who in the opinion of the court makes true and full discovery
of all things as to which he is examined, shall be entitled to receive
a certificate of indemnity under the hand of the presiding officer
of the court stating that he has made a true and full discovery of
all things as to which he was examined, and such certificate shall
be a bar to all legal proceedings against him in respect of all such
things as aforesaid.
(4) Nothing contained in this section shall be construed as
prohibiting the Public Prosecutor from requiring any person against
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whom proceedings have been instituted under Part III, to give
evidence in any other proceeding under Part III or in any trial in
relation to an offence under this Act or a Scheduled offence.
Protection of informers
38. (1) No witness in any proceedings under this Act shall be
obliged--
(a) to disclose the name and address of any informer who
has given information with respect to an offence under
this Act, or any Scheduled offence, or with respect to any
matter relating to or leading to any proceedings under
Part III, or with respect to any matter relating to or
leading to the detention of any person under the provisions
of the Emergency (Public Order and Prevention of Crime)
Ordinance 1969 [P.U. (A) 187/1969], or the Dangerous
Drugs (Special Preventive Measures) Act 1985 [Act 316];
or
(b) to answer any question if the answer thereto would lead,
or would tend to lead, to the discovery of the name or
address of such informer.
(2) If any book, document or paper which is in evidence or
liable to inspection in any proceedings under this Act or the Dangerous
Drugs Act 1952 contains an entry in which any informer is named
or described or which might lead to his discovery, the court shall
cause all such entries to be concealed from view or to be obliterated
so far as may be necessary to protect the informer from discovery.
Evidence of agent provocateur admissible
39. (1) Notwithstanding any rule of law, or the provisions of this
Act, or any other written law, whether enacted before or after the
commencement of this Act, to the contrary, no agent provocateur
shall be presumed to be unworthy of credit by reason only of his
having attempted to commit, or attempted to abet or abetted the
commission of, or having been engaged in a criminal conspiracy
to commit, an offence by any person under this Act or under the
Dangerous Drugs Act 1952 or under any corresponding foreign
law if the attempt to commit or abet, or the abetment, or the
criminal conspiracy was for the sole purpose of securing evidence
against such person in relation to any offence under this Act, or
in relation to any proceedings under Part III.
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(2) Notwithstanding any rule of law, or the provisions of this
Act, or any other written law, whether enacted before or after the
commencement of this Act, to the contrary, and notwithstanding
that the agent provocateur is a police officer of whatever rank, any
statement, whether oral or in writing made to an agent provocateur
by any person, including any person who subsequently is charged
with an offence under this Act, or proceeded against under Part
III, shall be admissible in evidence and given due weight and
consideration at any trial for an offence under this Act, or in any
proceeding under Part III, whether the trial is of the person who
made the statement, or of any other person, or the proceeding is
against the person who made the statement or any other person.
Notice or order not to be invalid for error in description
40. (1) No notice, notification or other process, issued, served
or published, and no order, decision or judgment made, given,
issued, served or published, under this Act shall be deemed to be
invalid by reason of any error or omission in the description of
the property or person mentioned therein if such property or person
is identifiable from the description so mentioned.
(2) Without prejudice to subsection (1), where any order has
been made, or a decision or judgment given, by any court in any
proceedings under this Act, any error or omission in the order,
decision or judgment relating to any description of any property
or person may at any time be rectified by the court on its own
motion or on the application of any party or any person affected
by the order, decision or judgment.
Power of a police officer under other laws relating to criminal
procedure
41. (1) The provisions of this Act in so far as they relate to the
powers of a police officer shall be in addition to the powers of a
police officer under any other law relating to criminal procedure
and not in derogation thereof, but in the event of inconsistency or
conflict between the provisions of this Act and those of such other
law, the provisions hereunder shall prevail.
(2) Subject to subsection (1), the provisions of the Criminal
Procedure Code relating to the powers of a police officer in relation
to seizable offences shall apply in relation to matters under Part
III in the same manner as they apply to seizable offences.
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PART VII
ASSISTANCE TO A FOREIGN COUNTRY
Interpretation
42. In this Part, unless the context otherwise requires--
"drug-related matter" means any investigation, inquiry, trial, or
other proceeding in any foreign country under any law relating
directly or indirectly to dangerous drugs or to any property used
for or derived from any activity relating to dangerous drugs, whether
the same be for an offence under such law, or for the forfeiture
of property under such law;
"foreign authority" means any person designated by a foreign
government as an authority competent to act on behalf of the
foreign government for the purposes of this Act;
"foreign country" means any country, territory or place outside
Malaysia;
"foreign government" means the government of a foreign country;
"Malaysian authority" means the Inspector-General of Police.
Request for assistance and authority to render same
43. Where a foreign government requests the Government of
Malaysia, or where a foreign authority requests the Malaysian
authority, for assistance in Malaysia in relation to any drug-related
matter in the foreign country, it shall be lawful for the Malaysian
authority on the direction of the Government or at his own instance
to render or cause to be rendered all or any such assistance as is
requested to the extent and in the manner authorized under this
Part.
Information and particulars in relation to persons, bodies, etc.
44. A senior police officer may, on the direction of the Malaysian
authority, obtain or ascertain all such particulars or information in
respect of any person, body, business, enterprise or place, including
copies of documents or official records of any department of the
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55
Government or any statutory body, or any agency of the Government,
or any extracts from any such documents or official records, as
may be available to him, or as are capable of being lawfully
obtained or ascertained by him, or as may be voluntarily furnished.
Service of processes or documents
45. A senior police officer may, on the direction of the Malaysian
authority, cause to be served by any police officer on any person
or body in Malaysia any process or document whatsoever issued
by any person, authority or court in any foreign country, but while
non-compliance with any requirement contained in such process
or document shall not render the person or body which is required
to comply with the same to any penalty or liability in Malaysia
under any Malaysian law, it shall render him or it liable to every
such penalty or detriment as may be provided under the law of the
foreign country concerned, including liability to the seizure or
forfeiture of any property in Malaysia on the order of the authority
or court of the foreign country empowered to make such order.
Transmission of copies of statements, or records, or results of
investigation in Malaysia
46. (1) The Malaysian authority may obtain and transmit, or
cause to be obtained and transmitted, to the foreign government
or foreign authority a copy of the record of any investigation in
Malaysia by any person or authority competent to investigate the
same, including any copy of--
(a) any report or any statement recorded from any witness,
accused or other person;
(b) any document received or seized; or
(c) any conclusion or finding of any investigation,
in relation to any offence under this Act or under any written law,
or in relation to any proceeding under Part III.
(2) Copies of records of investigation may be transmitted under
subsection (1), whether or not investigations have been completed
and whether or not such investigations have resulted in a trial for
an offence under this Act or the institution of a proceeding under
Part III of this Act, and whatever the outcome of any trial or
proceeding that has taken place as a result of the investigations.
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Examination of witness by a police officer
47. (1) A senior police officer may, on the direction of the
Malaysian authority, order in writing or orally any person who is
specified by the foreign government or foreign authority, or any
other person who is reasonably suspected to have any relevant
knowledge or information, to attend before him or any other senior
police officer to be examined in respect of the drug-related matter
specified by the foreign government or foreign authority.
(2) A person to whom an order has been given under subsection
(1) shall attend in accordance with the terms of the order to be
examined and shall continue to so attend from day to day as
directed by the police officer conducting the examination until the
examination is completed.
(3) A person undergoing an examination under this section
shall disclose all information which is within his knowledge, or
which is available to him, or which is capable of being obtained
by him, in respect of the matter in relation to which he is being
examined, whether or not any question is put to him with regard
thereto, and where any question is put to him he shall answer the
same truthfully and to the best of his knowledge and belief.
(4) A person being examined under this section shall produce
all such documents, articles or things as may be relevant to the
examination or as he may be required to produce by the senior
police officer examining him, and the same may be retained in
police custody or transmitted to the foreign government or foreign
authority.
(5) Nothing contained in subsections (3) and (4) shall be construed
as compelling the person who is being examined under this section
to disclose any information or produce any document, article or
thing which may incriminate him or his then lawful spouse for any
offence under any law of Malaysia or of the foreign country.
(6) Any person who contravenes any provision of this section
shall be guilty of an offence under this Act.
Examination of witness by a Magistrate
48. (1) A Magistrate of any Class at any place in Malaysia may
examine on oath or affirmation any person specified by any foreign
government or foreign authority who is present at any place in
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57
Malaysia, whether or not such place is within the area of jurisdiction
of the Magistrate, where such person appears before the Magistrate
on an order given by any senior police officer on a direction by
the Malaysian authority, or an order given by a Deputy Public
Prosecutor, in consequence of any request received from the
Malaysian authority.
(2) The examination under subsection (1) shall be in relation
to such drug-related matter as may be specified by the foreign
government or the foreign authority, and the person shall answer
all questions put to him by the senior police officer, or the Deputy
Public Prosecutor, either at his own instance or in accordance with
any written interrogatories received from the foreign government
or the foreign authority.
(3) In recording any evidence under this section there shall be
excluded all evidence which is inadmissible under Malaysian law
relating to evidence in criminal proceedings, or any evidence which
is stated by the senior police officer or the Deputy Public Prosecutor
to be inadmissible under the law of the foreign country.
(4) A person who is ordered by a senior police officer or a
Deputy Public Prosecutor to appear before a Magistrate for
examination under this section shall comply with the terms of such
order and shall continue to attend for such examination from day
to day or as directed by the Magistrate or the senior police officer
or the Deputy Public Prosecutor until the examination is completed.
(5) A person who is being examined by a Magistrate under this
section shall be entitled to be represented at the examination by
an advocate who may put to such person all such questions as may
be relevant to the matter in respect of which the person is being
examined, but only after his examination by the senior police
officer or the Deputy Public Prosecutor has been completed, and
where such questions have been put by the advocate, the senior
police officer or the Deputy Public Prosecutor shall be entitled to
examine the person in relation to those questions and his answers
thereto.
(6) Any person who--
(a) contravenes subsection (4); or
(b) fails to answer, or answers falsely, any question
put to him during an examination under this section,
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except a question which he is not compellable to
answer under the Malaysian law relating to evidence
in criminal proceedings,
shall be guilty of an offence under this Act.
Search of person or premises
49. (1) A senior police officer may, on the direction of the
Malaysian authority, search or cause to be searched--
(a) any person or premises specified by the foreign government
or foreign authority in a request under section 43;
(b) any person who, or any premises which, is suspected by
the senior police officer to be necessary or expedient to
be searched in relation to such request.
(2) For the purposes of any search under subsection (1), a
senior police officer shall have and may exercise all or any of the
powers exercisable by a senior police officer under sections 16 and
17 as if the circumstances specified in these sections for their
exercise existed and sections 18 and 19 shall accordingly apply in
relation to any search under subsection (1).
Seizure and transmission of property or article
50. (1) A senior police officer may, on the direction of the
Malaysian authority seize any property, or article, the seizure of
which is requested by a foreign government or a foreign authority
under section 43--
(a) on the ground that the property is liable to forfeiture
under the law of the foreign country; or
(b) on the ground that the property or article is required by
the foreign government or foreign authority for the purpose
of any drug-related matter either as evidence or otherwise
howsoever.
(2) Where any movable property, or article is seized under
subsection (1), the Malaysian authority may transmit the same to
the foreign government or the foreign authority on an undertaking
by the foreign government to the Malaysian Government that the
same shall be returned to the Malaysian authority upon the final
c o n c l u s i o n of all proceedings in the foreign country in the
drug-related matter, unless the Malaysian Government then notifies
the foreign government that it does not require its return.
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59
(3) Where any movable property, or article seized under paragraph
(1)(b) is not transmitted to the foreign government or the foreign
authority under subsection (2), or where it is returned to the Malaysian
Government upon the final conclusion of all proceedings in the
foreign country in the drug-related matter, the Malaysian authority
shall return it to the person from whom it was seized unless it is
required for the purpose of any prosecution or proceedings under
this Act or under any other written law.
(4) Subsections 25(2) and (3), sections 26, 27, 28, 29, 30 and
31 shall, subject to the respective modifications set out in the third
column of the Second Schedule, apply to a seizure of any property
under subsection (1).
(5) Upon the final conclusion of all proceedings in the foreign
country in respect of the drug-related matter in relation to which
any property was seized under paragraph (1)(a), the property shall,
subject to subsections (6) and (7), be dealt with in accordance with
the order of the authority or court in the foreign country which is
empowered under the law of that country to make such order.
(6) Where the order of the authority or court in the foreign
country requires the property to be returned to any person in
Malaysia, the property shall upon its return to the Malaysian authority
be returned to such person unless the Malaysian authority requires
such property for the purpose of any prosecution or proceedings
under this Act or under any other written law.
(7) Where the order of the foreign authority or the foreign
court is a final order for the forfeiture of such property, it shall
be deemed to be an order for the forfeiture of the same to the
Malaysian Government made by a High Court in Malaysia and
shall be registered by a Registrar of a High Court in Malaysia, and
shall, accordingly, be dealt with in accordance with the provisions
of this Act applicable to an order for forfeiture by a High Court
made under Part III.
(8) For the purposes of subsection (7), "final order" means an
order which is not subject to any appeal in the foreign country;
and for the purposes of this definition, "appeal" includes any
proceeding in whatever form and howsoever styled in relation to
the decision given at the level of original jurisdiction or a lower
level of appellate jurisdiction and any proceeding in relation to a
pardon or exercise of leniency by an executive authority in that
foreign country.
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(9) No person shall be entitled to claim any compensation from
the Malaysian Government or the foreign government or from any
person or authority acting on behalf of the Malaysian Government
or the foreign government, or under the authority of Malaysian law
or the law of the foreign country, in respect of any seizure or
disposal or release of such property under Malaysian law or the
law of the foreign country.
(10) The reference in subsection (1) to a senior police officer
shall, in relation to the seizure of any property which is a business,
be construed as a reference to a designated police officer.
Interception of communication
51.  Where the Malaysian authority is satisfied that for the purpose
of rendering any assistance to a foreign authority in relation to any
drug-related matter, it is necessary, expedient or desirable for a
senior police officer to exercise the powers under section 20 for
the interception of any communication, he may authorize a senior
police officer to exercise the same in the manner in which a senior
police officer is empowered to exercise them in relation to