*MALAYSIAN COCOA BOARD (INCORPORATION) ACT 1988

This Act shall apply throughout Malaysia and shall come into force on such date as the Minister may by notification in the Gazette appoint, and the Minister may appoint different dates for the coming into force of this Act for different States in Malaysia or for different provisions of this Act.

Interpretation

an officer of the Board authorized under section 23A;

a police officer not below the rank of Inspector; or

an officer of customs;

“Board” means the Malaysian Cocoa Board established under section 3;

“Chairman” means the Chairman of the Board appointed under section 3B;

“cocoa” means the plant of the genus Theobroma or any related genus or species or any hybrids or clones of the genus or species, plants resulting from the crossing of these species, hybrids or clones with any other species, hybrids or clones of plants, and genetically engineered versions of these species, hybrids or clones, and includes cocoa beans and cocoa products;

“cocoa bean” means the seed of Theobroma cacao L. whether or not passed through a process of fermentation or drying;

“cocoa industry” means any industry involved in the planting of cocoa or the production of cocoa products or both and includes services related to such planting or production;

“cocoa planting materials” means cocoa seeds, cocoa seedlings, budded cocoa seedlings, any material from any part of the cocoa plant used in vegetative propagation and plants from cocoa tissues;

Malaysian Cocoa Board (Incorporation) 9

“cocoa products” means any products manufactured from the cocoa bean and includes cocoa liquor, cocoa butter, cocoa cake, cocoa powder and chocolate;

“conveyance” means any mode of transport, whether by air, sea or land;

“Director General” means the Director General of the Board appointed under section 15;

“Fund” means the Malaysian Cocoa Board Fund established under section 18;

“MARDI” means the Malaysian Agricultural Research and

Development Institute established under the Malaysian Agricultural

Research and Development Institute Act 1969 [Act 11];

“member” means a member of the Board, and includes an alternate member;

“Minister” means the Minister responsible for the cocoa industry;

“research finding” means any results from research and development activities and includes inventions and improvements in any process, apparatus, machine or technique;

“sea” includes inland waters;

“staff” means the officers and servants of the Board and where the context so applies, any expert employed by the Board on a temporary basis;

“this Act” includes any regulations made under this Act.

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The Board shall have perpetual succession.

The Board may sue and be sued in its corporate name.

Subject to and for the purposes of this Act, and on such terms as it deems fit, the Board may—

The objectives of the Board are—

The First Schedule shall apply to the Board.

The common seal may, from time to time, be broken, changed, altered and made anew as the Board deems fit.

Until a seal is provided by the Board, a stamp bearing the words “Malaysian Cocoa Board” may be used and shall be deemed to be its common seal.

The common seal shall be kept in the custody of the

Chairman or a member of the Board.

The common seal shall be affixed in the presence of the

Chairman and one other member of the Board and the Chairman and such member shall sign every deed, document or other instrument to which the common seal is affixed.

All deeds, documents and other instruments purporting to be sealed with the common seal and authenticated as specified in subsection (5) shall, until the contrary is proven, be deemed to have been validly executed.

Any deed, document or other instrument that, if executed by a person who is not a body corporate, is not required to be under seal, may in like manner be executed by the Chairman or a member of the

Board on behalf of the Board.

The common seal of the Board shall be officially and judicially noticed.

Membership of Board

a Chairman;

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a representative of the Ministry charged with the responsibility for the cocoa industry, to be nominated by the Secretary General of the Ministry;

a representative of the Treasury, to be nominated by the

Secretary General of the Ministry of Finance;

a representative of the Ministry charged with the responsibility for agriculture, to be nominated by the

Secretary General of the Ministry;

a representative of the Ministry charged with the responsibility for international trade and industry, to be nominated by the Secretary General of the Ministry;

five representatives of the cocoa industry;

not more than six persons to represent the other interests of the cocoa industry or the interests of the Federal

Government or the interests of the State Governments;

and

the Director General.

Tenure of office

Malaysian Cocoa Board (Incorporation) 13

Alternate members to be appointed—

When attending meetings of the Board, an alternate member shall for all purposes be deemed to be a member of the Board.

An alternate member shall, unless he sooner resigns or his appointment is sooner revoked, cease to be an alternate member if the member in respect of whom he is an alternate ceases to be a member of the Board.

Appointment to be gazetted

Until an appointment under subsection (1) is made or in default of such appointment or in the absence of the Chairman from any meeting of the Board, the member appointed under paragraph

14 Laws of Malaysia ACT 343 3B(b) or his alternate, as the case may be, shall exercise the functions of and be deemed to be the Chairman of the Board.

If at any meeting of the Board neither the Chairman nor the person exercising the functions of the Chairman under subsection (2)

is present, the members present shall elect one of their number to preside at the meeting.

Functions of the Board

to conduct and promote research into the production, processing, storage, transportation, marketing, consumption and uses of cocoa and cocoa products;

to secure, where the public interest or the interest of the cocoa industry so requires, the development and exploitation of any research finding which appears to the

Board not to have been developed and exploited or sufficiently developed or exploited;

to acquire, hold, dispose of or grant rights in connection with the research findings vested in the Board or, where the public interest or the interest of the cocoa industry so requires, in connection with the findings of any research undertaken by any person or organization;

to control and coordinate the activities and policies of all research and development organizations financed wholly or mainly from the Fund;

to ensure that the Board is kept fully informed on the relevant activities and policies of all research and development organizations financed partly by the Fund;

to collect, collate and disseminate information relating to cocoa and cocoa products and other substitutes for cocoa products and to promote the use of cocoa and cocoa

Malaysian Cocoa Board (Incorporation) 15

products in competition with other materials or complementary thereto;

to coordinate activities within Malaysia relating to research, development, publicity and other matters affecting the cocoa industry as well as to liaise with bodies outside Malaysia concerned with these matters;

to provide technical, advisory and consultancy services to the cocoa industry;

to coordinate activities towards the efficient marketing of cocoa beans and cocoa products from Malaysia;

to regulate and improve the manner of storing and shipping of cocoa and cocoa products;

to promote measures towards attaining a high quality for cocoa and cocoa products and including assisting in the laying of standards and the establishment of an efficient grading system;

to regulate the processing, grading, packing, import and export of cocoa including the certification thereof;

to regulate and coordinate the proper conduct in the production, processing, storage, transportation and marketing of cocoa and cocoa products;

to consider, promote and take measures to prevent the occurrence and spread of diseases affecting cocoa;

(na) to plan and implement training programmes and human resource development in line with the needs of the cocoa industry;

(nb) to conduct research and development on oils and fats other than cocoa butter if such research and development are for the enhancement of the cocoa industry;

(na)

(nb)

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(nc) to conduct research and development in any other area if the research and development are intended to benefit the cocoa industry;

(nd) to conduct research and development on inter-cropping and to promote inter-cropping in cocoa plantations; and

generally to do everything for the betterment and proper conduct of the cocoa industry and to exercise such other functions as the Minister may, from time to time, direct.

Powers of the Board

to establish and operate such institutions and establishments in such places as the Board may consider appropriate in order to discharge its functions under this

Act;

to enter into such negotiations and arrangements as the

Board considers necessary for the promotion of the general interests of the cocoa industry;

to receive in consideration of services rendered by it, such commission or payments as may be agreed upon;

to impose fees or other charges it deems fit for giving effect to any of its functions;

to set up committees, which may consist of or include persons who are not members of the Board in order to advise or assist the Board on such matters concerning its powers and functions as it considers fit; and the Board may delegate, subject to such conditions and restrictions as it may impose, such of its powers and functions (except

(nc)

(nd)

Malaysian Cocoa Board (Incorporation) 17

the power to make regulations and to borrow money) as it considers fit, to any such committees and any act done or decision made by the committees pursuant to such delegation shall be deemed to be the act or decision of the

Board.

Power to establish corporation

Every order made under subsection (1) shall make provisions in respect of—

The provisions of the Second Schedule shall apply to the corporation established by the Board under subsection (1).

The Minister may make such rules or regulations prescribing any activity or interest or prescribing the terms or conditions of any activity or interest of any member, officer or servant of the Board in relation to the corporation and any omission or neglect to comply with and any act done or attempted to be done contrary to the provisions of such rules or regulations is an offence against this Act and the offender shall be liable on conviction to a fine not exceeding

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ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Commercialization of research findings

require the registration and licensing of persons in respect of any or all activities that fall within the scope of the functions of the Board;

provide for matters relating to registration and licensing including the manner of applying for registration and licences, the fees payable for licences, the imposition or variation of conditions and restrictions of licences, and the revocation or suspension of such licences;

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provide for matters relating to appeals;

regulate any or all activities that fall within the scope of the functions of the Board in any manner apart from or in addition to registration and licensing;

provide for the practices to be observed or avoided in the cocoa industry;

provide for the registration of contracts of sale including the details of such contracts, relating to the export of cocoa and cocoa products;

for the purposes of ensuring that the quality of cocoa to be exported is of such standard as may be prescribed and for the prevention of fraud in connection herewith, provide for the control and supervision of such standards including the prescribing of marks to be stamped or otherwise inscribed on cocoa packed for export;

prescribe the fees to be charged in respect of any research, investigation, test, advice or other services that the Board is requested to carry out, render or perform under these regulations;

prescribe penalties for the contravention of the provisions of any regulations made under this section with imprisonment not exceeding two years or a fine not exceeding

*fifty thousand ringgit or of both such imprisonment and fine;

prescribe the standards of processing and methods of fermenting, drying, grading or packaging cocoa and cocoa products;

prescribe the procedure for the import and export of cocoa beans and cocoa products;

*NOTE—Previously “ten thousand ringgit”–see the Malaysian Cocoa Board (Incorporation)

(Amendment) Act 2001 [Act A1103]

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prescribe the offences that may be compounded;

prescribe the records and documents to be kept and the returns to be submitted;

provide for such other matters as are contemplated by, or necessary for giving full effect to, this Act and for its due administration.

Appeals to the Minister

In giving his decision on an appeal under subsection (1), the

Minister may confirm, reverse or vary the decision of the Board.

Power of Board to make rules and regulations

prescribe the procedure for the administration of the Fund established under Part III of this Act;

(Deleted by Act A1103);

prescribe the scheme as well as the terms and conditions of loans to be made to the staff under paragraph 18(3)(c);

Malaysian Cocoa Board (Incorporation) 21

prescribe matters relating to the establishment of a corporation under section 10.

Minister may give direction

The Board may appoint such number of other staff of the

Board including Cocoa Inspectors as it considers necessary and expedient.

The appointment of the Director General shall be published in the Gazette.

The Board shall not establish or modify any post or scheme of service for officers and servants of the Board, including the terms and

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conditions of service and the salaries, any pensions scheme, and any scheme relating to allowances and other remuneration, without the approval of the Treasury and the Public Services Department.

Powers and duties of the Director General

The Director General shall—

Where the Director General is temporarily unable to exercise his functions on grounds of sickness, absence or any other cause, the

Board may appoint a member of the staff to exercise the powers and duties of the Director General.

A delegation under this section shall not preclude the Director

General himself from performing or exercising at any time any of the delegated functions, powers or duties.

Property in research finding by Director General or staff

An order made under this section may prescribe different amounts, rates and manner of collection for different types or grades of cocoa.

Malaysian Cocoa Board (Incorporation) 27

Except as may be otherwise provided in any such order, such cess shall be deemed for the purposes of collecting and enforcing the collection, to be a customs duty imposed under the Customs Act 1967 [Act 235].

Every such order shall be published in the Gazette and shall be laid on the table of each House of Parliament as soon as practicable after the publication of such order in the Gazette.

A person who fails or refuses to pay any cess imposed under this section commits an offence and shall on conviction be liable to a fine not exceeding ten times the amount of cess due or to imprisonment for a term not exceeding two years or to both.

The amount of any cess imposed under this section shall be a debt due to the Board from the person on whom the cess is imposed and may be sued for and recovered in any court at the suit of the

Board.

The institution of proceedings under this section shall not relieve any person from liability for the payment of any cess for which he is or may be liable or from liability to make any return that he is required by this Act to make.

Without prejudice to subsection (5), the court before which a person is convicted for an offence under subsection (4) may order the person to pay to the Board the total amount of cess certified by the finance officer of the Board to be due from the person at the date of the conviction.

Cess payable under subsection (7) shall, for the purpose of its collection, be deemed to be a fine and shall be recovered in accordance with section 283 of the Criminal Procedure Code [Act 593].

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An officer authorized under subsection (1) when acting under this Act shall, on demand, declare his office and produce to the person against whom he is acting or from whom he seeks any information such authority card as the Director General may direct to be carried by such officer.

Power of investigation

search for and seize any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article that is reasonably believed to furnish evidence of the commission of such offence;

take samples of any cocoa or thing found in the premises for the purposes of ascertaining, by testing or otherwise, whether the offence has been committed; and

make copies of or take extracts from any book, record, document or other article found in the premises.

An authorized officer entering any premises under this section may take with him such other persons and equipment as may appear to him to be necessary.

An authorized officer may, in the exercise of his powers under this section, if it is necessary to do so—

If, by reason of its nature, size or amount, it is not practicable to remove any cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this section, the seizing officer shall, by any means, seal such cocoa, conveyance, machinery, contrivance, equipment, book, record,

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document or other article in the premises or container in which it is found.

A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (4) or removes the cocoa, conveyance, machinery, contrivance, equipment, book, record, document or other article under seal or attempts to do so commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Power to stop and search conveyances

The person in control or in charge of the conveyance shall, if required to do so by the authorized officer—

A person who contravenes subsection (2) commits an offence and shall on conviction be liable to a fine not exceeding fifty

Malaysian Cocoa Board (Incorporation) 31

thousand ringgit or to imprisonment for a term not exceeding two years or to both.

List of things seized

if premises have been searched under section 23C, the occupier of the premises that have been searched, or to his agent or servant, at those premises; and

if a conveyance is seized under section 23D, the person in control or in charge of the conveyance.

If the premises are unoccupied, the seizing officer shall whenever possible post a list of the things seized conspicuously on the premises.

Power to enter premises