*DEOXYRIBONUCLEIC ACID (DNA) IDENTIFICATION ACT 2009

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

Interpretation

in relation to a person who is under the age of eighteen years, the consent in writing of his parent or guardian;

in relation to a person who has attained the age of eighteen years, the consent in writing of that person; or

in relation to a person in whom there is a condition of arrested or incomplete development of mind or body whether such condition arises from inherent causes or is induced by disease or injury and who is incapable of understanding the general nature and effect of a forensic

DNA analysis or is incapable of indicating whether he consents or does not consent to give his intimate sample or non-intimate sample, the consent in writing of his parent or guardian;

“offence” means any act or omission punishable by any law for the time being in force;

“Head of DNA Databank” means the Head of Forensic DNA

Databank Malaysia appointed under section 7;

“Minister” means the Minister charged with the responsibility for internal security;

“detainee” means a person arrested and detained under the

*Emergency (Public Order and Prevention of Crime) Ordinance 1969 [Ord. 5/1969] or the Dangerous Drugs (Special Preventive

Measures) Act 1985 [Act 316];

“authorized officer” means any police officer not below the rank of Deputy Superintendent of Police;

*NOTE—Emergency (Public Order and Prevention of Crime) Ordinance 1969 [Ord. 5/1969] ceased to have effect on 21 June 2012 pursuant to Clause (7) Article 150 of the Federal Constitution.

Deoxyribonucleic Acid (DNA) Identification 7

“government medical officer” means a registered medical practitioner in the public service and includes a registered medical practitioner in any teaching hospital of a university established under the Universities and University Colleges Act 1971 [Act 30];

“police officer” means any member of the Royal Malaysia Police;

“drug dependant” means a person who is subject to such order or decision made pursuant to the Drug Dependants (Treatment and Rehabilitation) Act 1983 [Act 283];

“DNA profile” means genetic information derived from a forensic DNA analysis;

“non-intimate sample” means—

a sample of hair other than the pubic hair;

a sample taken from a nail or from under a nail;

a swab taken from any part of a person’s body other than a part from which a swab taken would be an intimate sample; or

saliva;

“intimate sample” means—

a sample of blood, semen or any other tissue or fluid taken from a person’s body, urine or pubic hair; or

a swab taken from any part of a person’s genitals (including pubic hair) or from a person’s body orifice other than the mouth.

The DNA Databank shall be under the management, control and supervision of the Head of DNA Databank.

The DNA Databank shall consist of the following indices:

In addition to subsection (1), the DNA profiles and any information in relation thereto kept and maintained in the DNA

Databank may be used in assisting—

The Minister may, in the order referred to in section 5, specify that the forensic DNA analysis to be carried out by the agency or body so designated shall only be for the purposes mentioned in subsection 4(2) subject to such terms and conditions as he may impose.

The Minister shall appoint a public officer who shall have the qualification and experience in DNA science as Deputy Head of DNA Databank as may be necessary for the purposes of this

Act who shall be subject to the control and direction of the Head of DNA Databank and may exercise the powers and perform the functions of the Head of DNA Databank under this Act.

The Minister shall appoint such numbers of DNA Databank officers as may be necessary for carrying out the purposes of this Act from amongst public officers who shall be subject to the control, direction and supervision of the Head of DNA Databank.

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The Head of DNA Databank may in writing, subject to such conditions, limitations or restrictions as he thinks fit to impose, delegate all or any of his powers or functions under this Act to the Deputy Head of DNA Databank or to DNA Databank officers.

A delegation under subsection (4) may be revoked at any time by the Head of DNA Databank and does not prevent the

Head of DNA Databank from exercising the powers or performing the functions so delegated under that subsection.

Functions and powers of the Head of DNA Databank

to be responsible for the general conduct, administration and management of the DNA Databank;

to establish mechanisms to facilitate the collection, storage and dissemination of data in connection with DNA profiles and any information in relation thereto stored in the DNA Databank;

to ensure that DNA profiles and any information in relation thereto are securely stored and remain confidential;

to store and dispose of the intimate sample and non-intimate sample taken for the purposes of forensic DNA analysis in accordance with the provisions of this Act and as prescribed;

to co-operate with foreign law enforcement agency in accordance with the provisions of this Act; and

to carry out any other functions conferred by or under this Act and to perform any other functions that are supplemental, incidental, or consequential to any of the functions specified in this section or in furtherance of the objectives of the DNA Databank.

The Head of DNA Databank shall have all such powers as may be necessary for, or in connection with, or incidental to, the performance of his functions under this Act.

Act 699

Rectification of particulars in DNA profile and information

a clerical error has occurred; and

sufficient evidence is produced to satisfy him that the entry made is incorrect, and on making the rectification he shall, where necessary, issue to the person entitled to the information derived from the analysis of sample taken for him, the particulars so rectified.

The powers under this section shall be exercised by the

Head of DNA Databank alone.

Any rectification made pursuant to this section shall not be construed as an act of tampering, abetting or attempting to tamper with any DNA profile or any information in relation thereto contained in the DNA Databank mentioned in section 21.

Power of Minister to give directions

forensic comparison with any other DNA profiles or information in the course of an investigation of any offence conducted by any enforcement agency;

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administering the DNA Databank; or

making the information available to the person to whom the information relates.

For the avoidance of doubt, the access to, a communication or use of DNA profiles or any information in relation thereto under subsection (1) by a chemist shall only be for the purpose mentioned in paragraph (a) of that subsection.

An intimate sample of—

Subject to an appropriate consent being given under subparagraph (2)(B), an authorized officer shall only give his authorization under subparagraph (2)(A) if—

An authorized officer—

A person from whom an intimate sample is taken shall be entitled to the information derived from the analysis of the sample taken from him.

An intimate sample shall only be taken by a government medical officer.

Taking of non-intimate sample

A non-intimate sample of—

An authorized officer shall only give his authorization under subsection (2) if—

An authorized officer—

The person from whom a non-intimate sample is taken shall be entitled to the information derived from the analysis of the sample taken from him.

Act 699

A non-intimate sample shall only be taken by—

If a person from whom a non-intimate sample is to be taken under this Act refuses to give the sample or refuses to allow the sample to be taken from him without good cause or the sample cannot be obtained despite all reasonable efforts taken, that person may be taken before a magistrate and the magistrate may, if satisfied that there is reasonable cause to believe that the sample tends to confirm or disprove the commission of an offence by that person, order that person to provide his non-intimate sample.

Sample given voluntarily

Where an appropriate consent is given under subsection (1), a police officer not below the rank of Deputy Superintendent of

Police shall, before the taking of the intimate sample or non-intimate sample, inform the person from whom the sample is to be taken—

The procedures for the storage and disposal of an intimate sample and a non-intimate sample shall be as prescribed.

Removal of DNA profile and information from suspected persons index

investigations reveal that he was not involved in the commission of any offence;

the charge against him in respect of any offence is withdrawn;

he is discharged by a court of an offence with which he has been charged, at trial or on appeal;

he is acquitted of an offence with which he has been charged, at trial or on appeal; or

Act 699

he is not charged in any court for any offence within a period of one year from the date of taking of such sample from him, the Head of DNA Databank shall, within six months of so being notified by the Officer in Charge of a Police District of the fact referred to in paragraph (a), (b), (c), (d), or (e), remove the DNA profile and any information in relation thereto of such person from the DNA Databank.

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

Any person who abets the commission of or who attempts to commit the offence under this section shall be guilty of that offence and shall, on conviction, be liable to the punishment provided for that offence:

Provided that any term of imprisonment imposed shall not exceed one-half of the maximum term provided for the offence.

Unauthorized use or communication of DNA profile or information

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

Obligation of secrecy

under this Act or regulations made under this Act;

under any written law;

by any court; or

for the performance of his functions or the exercise of his powers under this Act or regulations made under this Act.

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

Offence of tampering, abetting or attempting to tamper with

DNA profile or information

For the purpose of this section, tampering with any DNA profile or any information in relation thereto includes the following:

Any person who commits an offence under this section shall, on conviction, be liable to imprisonment for a term not exceeding five years or to a fine not exceeding fifty thousand ringgit or to both.

Any person who abets the commission of or who attempts to commit the offence under this section shall be guilty of that offence and shall, on conviction, be liable to the punishment provided for that offence:

Provided that any term of imprisonment imposed shall not exceed one-half of the maximum term provided for the offence.

The Head of DNA Databank may, upon a request by a foreign law enforcement agency in the course of an investigation of an offence or a prosecution of a criminal offence in that foreign state, communicate a DNA profile contained in the DNA

Databank to that foreign law enforcement agency.

For the purposes of this section, “foreign law enforcement agency” means the law enforcement agency of a foreign state and includes an international organization established by the government of states or an international organization.

Protection against any legal proceedings

the Minister;

the Head of DNA Databank;

the Deputy Head of DNA Databank;

DNA Databank officers;

a government medical officer; or

a chemist, in respect of any act or omission done by him in good faith in carrying out his powers, functions and responsibilities under this

Act in such capacity.

Regulations

Without prejudice to the generality of subsection (1), regulations may be made—

Any regulations made under this Act shall be laid before the Dewan Rakyat as soon as possible after they are made and if the Dewan Rakyat is not then sitting, at the sitting of the following meeting of the Dewan Rakyat.

Savings and transitional