Malaysia legislation
Section 44
of ACCESS TO BIOLOGICAL RESOURCES AND BENEFIT SHARING ACT 2017
Section 44
(2)
An order for the forfeiture of any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article shall be made if it is proved to the satisfaction of the court that an offence under this Act has been committed and that the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article was the subject matter of or was used in the commission of the offence, even though no person has been convicted of such offence.
(3)
If there is no prosecution with regard to any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act, such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article shall be taken and deemed to be forfeited at the expiration of a period of one calendar month from the date of service of a notice to the last known address of the person from whom the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article was seized indicating that there is no prosecution in respect of such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article unless before the expiration of that period a claim thereto is made in the manner set out in subsections (4), (5), (6)
and (7).
(4)
Any person asserting that he is the owner of the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article referred to in subsection (3) and that it is not liable to forfeiture may personally or by his agent authorized in writing, give written notice to the enforcement officer in whose possession such biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article is held that he claims the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article.
(5)
On receipt of the notice referred to in subsection (4), the enforcement officer shall refer the claim to a Magistrate for his decision.
Act 795
(6)
The Magistrate to whom a matter is referred under subsection (5) shall issue a summons requiring the person asserting that he is the owner of the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article and the person from whom it was seized to appear before him, and when they appear or they fail to appear, due service of the summons having been proved, the Magistrate shall proceed to the examination of the matter.
(7)
If it is proved that an offence under this Act or any of its subsidiary legislation has been committed and that the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article referred to in subsection (6)
was the subject matter of or was used in the commission of such offence, the Magistrate shall order the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article to be forfeited, and shall, in the absence of such proof, order its release.
(8)
Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited shall be delivered to the Competent
Authority and shall be disposed of in such manner as the Competent
Authority thinks fit, including repatriation under subsection (9)
if the Competent Authority so decides.
(9)
When a decision of repatriation is made under this Act in respect of any biological resource which has been imported into Malaysia in contravention of this Act, and the biological resource was brought into Malaysia in a conveyance, the owner or importer of the biological resource or his agent shall, if required in writing by the Competent Authority, provide or be responsible for—
(a)
the free passage for the return of the biological resource to the place at which the biological resource was shipped to Malaysia, or to any other port or place designated by the Competent Authority; and
(b)
where required, proper maintenance and storage of the biological resource during the voyage, flight or journey.
Access to Biological Resources and Benefit Sharing 43
(10)
No person shall be liable under subsection (9) unless the decision of repatriation has been made by the Competent
Authority within—
(a)
where there are no proceedings instituted, twelve months from the date on which the biological resource were imported into Malaysia; or
(b)
six months from the date the proceedings for the offence in connection with such importation into Malaysia are concluded.
(11)
Any person who contravenes subsection (9) commits an offence and shall, on conviction, be liable—
(a)
where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or
(b)
where such person is a body corporate, to a fine not exceeding one hundred and fifty thousand ringgit.
Property in forfeited biological resource, etc.