WITNESS PROTECTION ACT 2009

This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Interpretation

a person who has given or who has agreed to give evidence on behalf of the Government in a criminal proceeding;

a person who has given or who has agreed to give evidence, otherwise than as mentioned in paragraph (a), in relation to the commission or possible commission of an offence;

a person who has provided any information, a statement or assistance to a public officer or an officer of a public authority in relation to an offence;

a person who, for any other reason, may require protection or assistance under the Programme; or

a person who, because of his relationship to or association with any of the persons referred to in paragraphs (a)

to (d), may require protection or assistance under the

Programme.

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The Minister may appoint such other person or persons, as he deems fit, to assist the Director General in carrying out the purposed of this Act.

Every person appointed under subsection (2) shall be subject to general direction, control and supervision of the Director

General and shall have and exercise all the powers of the Director

General under this Act except those referred in subsections 12(1)

and 15(1).

In the event that the Director General is absent or unable to act due to illness or any other cause, the Deputy Director

General shall exercise the powers of the Director General under subsections 12(1) and 15(1).

Functions

The Director General may arrange or provide protection and other assistance to a witness or participant under the Programme.

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Duty to provide assistance

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding six months or to both.

Notwithstanding any written law to the contrary, no proceedings or action shall be taken against a person who acts in compliance with subsection (1).

Application for inclusion in the Programme

An enforcement agency may, with the written consent of a witness, apply to the Director General that the witness be included in the Programme.

If a witness is under eighteen years of age, a parent or guardian of the witness may apply on his behalf to be included in the Programme.

Upon receipt of an application under this section, the

Director General may provide interim protection and assistance to a witness.

Witness to disclose certain matters

disclose to the Director General details of all outstanding legal obligations of the witness;

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disclose to the Director General details of any outstanding debts of the witness, including any outstanding tax;

disclose to the Director General details of the criminal history of the witness which includes orders relating to sentences imposed on the witness;

disclose to the Director General details of any civil proceedings that have been instituted by or against the witness;

disclose to the Director General details of any bankruptcy proceedings that have been instituted against the witness;

inform the Director General whether the witness is an undischarged bankrupt under the Insolvency Act 1967 [Act 360] and, if the witness is an undischarged bankrupt, shall submit to the Director General copies of all documents relating to the bankruptcy;

inform the Director General whether there are any restriction on the witness holding positions in companies, whether public or private and, if there are, give to the

Director general copies of all documents relating to those restrictions;

disclose to the Director General details of the immigration status of the witness;

disclose to the Director General details of any reparation order that is in force against the witness;

disclose to the Director General details of the financial liabilities and assets, whether real or personal, of the witness;

inform the Director General whether any of the property of the witness, whether real or personal, is liable to forfeiture or confiscation or is subject to restraint under any other law;

inform the Director General of the general medical condition of the witness;

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disclose to the Director General details of any relevant court orders or arrangements relating to custody or access to children;

disclose to the Director General details of any business dealings in which the witness is involved; and

disclose to the Director General details of any arrangements that the witness has made for—

the service of documents on the witness;

The Director General may send such witness to undergo medical, psychological and psychiatric examinations to determine his suitability for inclusion in the Programme.

Any person who discloses or supplies information to the

Director General for the purpose of assisting the Director General in deciding whether or not to recommend him to be included in the Programme shall not disclose or supply information which he knows or ought reasonably to know is false.

Any person who contravenes subsection (3) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Factors to be considered

whether the witness has a criminal record, particularly in respect of crimes of violence, and whether that record indicates a risk to the public if the witness is included in the Programme;

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the result of a medical, psychological and psychiatric examinations conducted under subsection 8(2);

the seriousness of the offence to which the evidence or statement of the witness relates;

the nature and importance of the evidence or statement of the witness;

whether there are alternative methods of protecting the witness;

the nature of the perceived danger to the witness;

the nature of the relationship of the witness to other witnesses being selected for inclusion in the Programme;

and

any other matters as the Director General considers relevant.

The Director General may make such other inquiries and investigations, as he considers necessary, for the purposes of assessing whether the witness is to be recommended to be included in the Programme.

Inclusion in the Programme

Every recommendation by the Director General for a witness to be included in the Programme, shall be made to the Attorney

General.

The Attorney General, upon receiving the recommendation referred to in subsection (1), shall decide whether or not to include a witness in the Programme.

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If any person is aggrieved by the decision of the Attorney

General under subsection (3), he may appeal in writing to the

Minister within fourteen days from the date of receipt of the decision.

Where an appeal is made under subsection (4)—

The Minister shall, upon receipt of an appeal under subsection (4), make a decision on the appeal.

Register of Participants

The Register shall contain the following:

The Registrar shall keep in his custody in such form and manner as he may determine the following documents:

Notwithstanding any written law to the contrary, the Register shall not be produced to any person or in any proceedings in a court, tribunal, Commission or an inquiry.

Any person who contravenes this section commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years.

Action where a witness is included in the Programme

The action may include—

Notwithstanding any written law to the contrary, there shall be no relocation of any participant by the Director General under paragraph (2)(b)—

Where the Director General makes a request to any person, having the power or duty under any other written law to issue birth certificate, identity card, marriage certificate or any other document relating to the identity of a participant, to issue a new document necessary to allow the participant to establish a new identity, such person shall comply with the request.

The Director General shall not apply for any document to allow a participant to establish a new identity under paragraph (2)(c)

unless he has obtained a written consent from the participant.

The Director General may permit his officer to use assumed names in carrying out their duties in relation to the Programme and to carry documentation supporting those assumed names.

those rights or obligations are dealt with according to the relevant law; or

the participant complies with those restrictions.

The action under subsection (1) may include—

If the Director General is satisfied that a participant who has been provided with a new identity under the Programme is using the new identity to—

The notice under subsection (3) shall state that, unless the participant satisfies the Director General that the obligations will be dealt with according to the relevant law or the restrictions will be complied with, the Director General shall take such action as he considers reasonably necessary to ensure that they are dealt with according to the law or complied with.

The action taken under subsection (4) may include informing any person who is seeking to enforce rights against the participant of the details of any property, whether real or personal, owned by the participant under his original identity.

Non-disclosure of original identity of participant

Where a participant has not been given an order under subsection (1) to disclose his original identity, it shall be lawful for the participant, in any proceedings or for any purpose, under any law, to claim that his new identity is his only identity.

For the purpose of this section, “participant” includes a person who was provided with a new identity under the Programme and is no longer a participant.

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Termination of protection and assistance

the participant had knowingly given information that is false or misleading;

the participant’s conduct or threatened conduct is, in the opinion of the Director General, likely to compromise the integrity of the Programme;

the circumstances that gave rise to the need for protection and assistance for the participant cease to exist; or

there is, in the opinion of the Director General, no reasonable justification for the participant to remain in the Programme.

The Attorney General upon receiving the recommendation under subsection (1) shall decide whether or not to terminate the protection and assistance provided to the participant under the

Programme.

The Attorney General shall give a participant an opportunity to be heard before making his decision under subsection (2).

The provisions of subsection (3) shall not apply where the

Attorney General does not know the participant’s whereabouts.

Where a participant has been given an opportunity to be heard and the participant fails to make any representation, the Attorney General shall proceed to make a decision on the recommendation submitted.

Notwithstanding subsection (1), a participant may make a request in writing to the Director General that the protection and assistance provided under the Programme be terminated by the

Attorney General.

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Upon receipt of a request under subsection (6), the Director

General shall make a recommendation to the Attorney General for his decision.

If a participant is aggrieved by the decision of the Attorney

General under subsection (2) or (7), he may appeal in writing to the Minister within fourteen days from the date of receipt of the decision.

Where an appeal is made under subsection (2) or (7)—

The Minister shall, upon receipt of an appeal under subsection (8), make a decision on the appeal.

Upon termination of the protection and assistance provided under the Programme to a participant, the Director General may where it is expedient and necessary—

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years.

Director General not required to disclose information

to produce in any proceedings in a court, tribunal,

Commission or an inquiry, any document that has come into the custody or control of the Director General or his officer; or

to divulge or communicate to such a body any matter or thing that has come to the notice of the Director General or any of his officer, in the performance of their functions and duties under this Act, except where it is necessary to do so for carrying out the purposes of this Act.

If it is essential to the determination of any legal proceedings that the Judge or Magistrate presiding over the proceedings be advised of a participant’s location and circumstances, the person referred to in subsection (1) is to disclose the relevant information to the Judge or Magistrate in chambers, but the person shall not disclose the information if any person other than the Judge or

Magistrate is present.

A Judge or Magistrate shall not disclose any information disclosed to the Judge or Magistrate under subsection (2) otherwise than in accordance with this Act.

Requirement where participant becomes a witness in a criminal proceeding

conduct that part of the proceedings that relates to the identity of the participant in camera; and

make such order relating to the suppression of publication of evidence given before the court, tribunal, Commission or inquiry as, in its opinion, will ensure that the identity of the participant is not disclosed.

Any person who contravenes paragraph (1)(b) 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 ten years or to both.

Payment under the Programme not to be confiscated

In this section, “judicial review” includes proceedings instituted by way of—

in good faith;

in the reasonable belief that it was necessary for the purpose intended to be served thereby; or

for carrying into effect the provisions of this Act.

Institution of prosecution

about the identity or location of a witness, participant or former participant; or

that compromises the security of such witness, participant or former participant.

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A person who is or has been a participant, or a witness who has been considered for recommendation for inclusion in the Programme, shall not disclose—

Any person who contravenes—

The Director General may, whenever he considers it necessary to do so, submit special reports to the Minister on any matter in relation to the Programme.

Regulations