What is AKTA PERIHAL DAGANGAN 2011?

*TRADE DESCRIPTIONS ACT 2011 is Malaysia Act, cited as Act 730 2011, currently marked in force and first recorded in 2011.

Is AKTA PERIHAL DAGANGAN 2011 still in force?

Yes — AKTA PERIHAL DAGANGAN 2011 is currently in force.

When did AKTA PERIHAL DAGANGAN 2011 take effect?

AKTA PERIHAL DAGANGAN 2011 was first recorded in 2011.

How many sections does AKTA PERIHAL DAGANGAN 2011 have?

AKTA PERIHAL DAGANGAN 2011 contains 74 sections.

What amends AKTA PERIHAL DAGANGAN 2011?

AKTA PERIHAL DAGANGAN 2011 has been amended by AKTA PERIHAL DAGANGAN (PINDAAN) 2017, AKTA PERIHAL DAGANGAN (PINDAAN) 2019, and AKTA PERIHAL DAGANGAN (PINDAAN) 2021.

Where can I read the official version of AKTA PERIHAL DAGANGAN 2011?

The official text of AKTA PERIHAL DAGANGAN 2011 is published at lom.agc.gov.my.

AKTA PERIHAL DAGANGAN 2011 (No. 730)

PRELIMINARY

Short title and commencement

Section 1

(2)

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

Interpretation

Section 2

In this Act, unless the context otherwise requires—

10 Laws of Malaysia

“this Act” includes any subsidiary legislation made under this Act;

“goods” includes ships, aircrafts, vehicles, animals, plants and crops and all kinds of movable property;

“electronic” means the technology of utilizing electrical, optical, magnetic, electromagnetic, biometric, photonic or other similar technology;

“advertisement” means every form of advertising (whether or not accompanied by or in association with spoken or written words or other writing or sounds and whether or not contained or issued in a publication) by the display of notices or by means of catalogues, price lists, circulars, labels, cards or other documents or materials or by the exhibition of films or of pictures or photographs, or by means of radio or television, or in any other way including through electronic means;

“ship” includes any boat and any other description of vessel used in navigation;

“precious metal” means gold, silver or platinum in its fine form or gold, silver or platinum alloy;

“supply” means—

(a)

in relation to goods, the supply, including resupply, by way of sale, exchange, lease, hire or hire-purchase of the goods; and

(b)

in relation to services, the provision by way of sale, grant or conferment of the services, by any means including through electronic means.

“Minister” means the Minister charged with the responsibility for domestic trade and consumerism;

Trade Descriptions 11

“Controller” means the Controller of Trade Descriptions appointed under section 3;

“Assistant Controller” means the Assistant Controller of Trade

Descriptions appointed under section 3;

“service” means a service of any description, whether industrial, trade, professional or otherwise but does not include anything done under contract of service;

“premises” means any place, stationary or otherwise established or set up by any person, whether such place is with or without enclosure, and includes vehicles, aircrafts, ships and any other vessel;

“standard of fineness”, in relation to articles made of precious metals, means the number of parts by weight of fine gold, silver or platinum in one thousand parts by weight of precious metal;

“publish”, in relation to an advertisement, means to place the advertisement before the public or any member of the public by any means, including through electronic means;

“Deputy Controller” means the Deputy Controller of Trade

Descriptions appointed under section 3.

Appointment of Controller, Deputy Controller, Assistant

Controllers, etc.

Section 3

(2)

The Controller shall perform the duties imposed and exercise the powers conferred on him subject to the general direction and control of the Minister.

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(3)

The Deputy Controllers, Assistant Controllers and other officers appointed under subsection (1) shall be under the direction and control of the Controller.

(4)

The Deputy Controllers may perform all the duties imposed and exercise all the powers conferred on the Controller.

(5)

The Controller and Deputy Controllers may perform all the duties imposed and exercise all the powers conferred on the Assistant

Controllers.

(6)

An officer appointed under this section when acting against any person under this Act shall, on demand, declare his office and produce to the person against whom he is acting such authority card as the Controller may direct to be carried by such officer.

(7)

An officer appointed under this section shall be deemed to be a public servant within the meaning of the Penal Code [Act 574].

Section 4

(Deleted by Act A1607).

PROHIBITION OF FALSE TRADE DESCRIPTIONS

Prohibition of false trade description

Section 5

(a)

applies a false trade description to any goods;

(b)

supplies or offers to supply any goods to which a false trade description is applied; or

Trade Descriptions 13

(c)

exposes for supply or has in his possession, custody or control for supply any goods to which a false trade description is applied, commits an offence and shall, on conviction, be liable—

(A)

if such person is a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit; or

(B)

if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(2)

The terms used in this section and wherever else occurring in this Act shall be interpreted in accordance with sections 6, 7 and 10.

Trade description

Section 6

(a)

nature or designation;

(b)

quantity, length, width, height, area, volume, capacity, weight, size or gauge;

(c)

method of manufacture, production, processing or reconditioning;

(d)

composition;

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(e)

fitness for purpose, strength, performance, behaviour or accuracy;

(f)

the standard of fineness of articles made of precious metal;

(g)

any physical or technological characteristics not included in the preceding paragraphs;

(h)

date of expiration of the goods;

(i)

testing by any person and results thereof;

(j)

quality otherwise than as specified in the preceding paragraphs;

(k)

approval by any person or conformity with a type approved by any person;

(l)

place or date of manufacture, production, processing or reconditioning;

(m)

person who manufactured, produced, processed or reconditioned the goods;

(n)

other history, including previous ownership or use.

(2)

The matters specified in subsection (1) shall be taken—

(a)

in relation to any animal, to include sex, breed or cross, fertility and soundness;

(b)

in relation to any semen, to include the identity and characteristics of the animal from which it was taken and measure of dilution.

Trade Descriptions 15

(3)

Where the application of any description is prohibited under the provisions of the law specified in the Schedule except where applied to goods which comply with the requirements of that law, no such description applied in accordance with the requirements of that law shall be a false trade description.

(4)

The Minister may amend the Schedule referred to in subsection (3) by order published in the Gazette.

(5)

For the purposes of this Act, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast or any other medium, including through electronic means, shall not be deemed to be a trade description or a statement unless it is or forms part of an advertisement.

False trade description

Section 7

(2)

A trade description which, though not false, is misleading, that is to say, likely to be taken for an indication of any of the matters specified in section 6 as would be false to a material degree, is deemed to be a false trade description.

(3)

Anything which, though not a trade description, that is to say, likely to be taken for an indication of any of the matters specified in section 6 as would be false to a material degree, is deemed to be a false trade description.

(4)

A false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person is deemed to be a false trade description, if there is no such person or no standard so specified, recognized or implied.

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Section 8

(Deleted by Act A1607).

Section 9

(Deleted by Act A1607).

Section 10

Applying a trade description to goods

(a)

affixes or annexes it to or in any manner marks it on or incorporates it with—

(i)

the goods themselves; or

(ii)

anything in, on or with which the goods are supplied;

(b)

places the goods in, on or with anything which the trade description has been affixed or annexed to, marked on or incorporated with, or places any such thing with the goods; or

(c)

uses the trade description in any manner likely to be taken as referring to the goods.

(2)

For the purpose of this Act, an oral statement may amount to the use of a trade description.

(3)

Where goods are supplied in pursuance of a request in which a trade description is used and the circumstances are such as to make it reasonable to infer that the goods are supplied as goods corresponding to that description, the person supplying the goods is deemed to have applied that trade description to the goods.

Section 11

(Deleted by Act A1607).

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Section 12

Possession for supply

A person having in his possession three or more of the same goods of similar description and bearing the same trade description mentioned under section 6 is deemed to have in possession the goods for supply.

MISSTATEMENTS OTHER THAN FALSE TRADE DESCRIPTIONS

Interpretation

Section 13

For the purpose of this Part, “false” or “misleading” means any conduct, representation, statement or practice which is capable of leading any person into error.

Section 14

False or misleading indication as to price of goods

(a)

that the price at which the goods are offered is equal to or less than the recommended price;

(b)

that the goods are being offered at a price less than that at which they are in fact being offered; or

(c)

that the goods are being offered at a price less than being offered by any other person.

(2)

Where any person is charged with an offence under this section, the onus of proving that—

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(a)

the price of the goods offered by him is less than the price offered by any other person; or

(b)

the existence and terms of any recommended price relied upon or that the requirements of subsection (3) have been complied with, shall be upon the person charged.

(3)

For the purposes of this section—

(a)

an indication as to a recommended price—

(i)

shall be treated, unless the contrary is expressed, as an indication that it is a price recommended by the manufacturer or producer; and

(ii)

shall be treated, unless the contrary is expressed, as an indication that it is a price recommended generally for supply by retail in the area where the goods are offered;

(b)

anything likely to be taken as an indication as to a recommended price shall be treated as such an indication;

and

(c)

any person advertising goods as available for supply shall be taken as offering to supply them.

Price deemed to include tax

Section 15

(2)

Subsection (1) shall not apply to any advertisement made in the course of a prescribed trade or business under section 10B of the Price

Control and Anti-Profiteering Act 2011 [Act 723].

Trade Descriptions 19

*(3) (Deleted).

*(4) (Deleted).

False representation as to supply or approval of goods or services

Section 16

(2)

Subsection (1) shall have effect without prejudice to the provisions of any written law prohibiting or restricting the use of any name, emblem, insignia, seal, flag, pennant, title, coat-of-arms, sign, words or letters or any other form of description in the course of trade, business, calling or profession.

False or misleading statements as to services, etc.

Section 17

(a)

make a statement which he knows to be false;

(b)

recklessly make a statement which is false; or

(c)

make any statement which is likely to deceive or mislead any person,

*NOTE—Subsections 15(3) and (4) are no longer applicable in consequence of the repeal of the Goods and Services Tax Act 2014 [Act 762] which comes into operation on 1 September 2018–see section 3 of the Goods and Services Tax

(Repeal) Act 2018 [Act 805].

20 Laws of Malaysia as to any of the following matters:

(A)

the provision of any services, accommodation or facilities;

(B)

the nature of any services, accommodation or facilities;

(C)

the time at which, manner in which or persons by whom any services, accommodation or facilities are so provided;

(D)

the examination, approval or evaluation by any person of any services, accommodation or facilities are so provided;

(E)

the location or amenities of any accommodation are so provided; or

(F)

the rates or charges for any services, accommodation or facilities are so provided.

(2)

For the purpose of this section—

(a)

a statement, whether or not referring to any matter specified in subsection (1), which is likely to be taken as a statement to any of those matters as might be false, is deemed to be a false statement as to that matter; and

(b)

a statement made regardless of whether it is true or false is deemed to be made recklessly, whether or not the person making it had reason for believing that it might be false.

(3)

In relation to any services consisting of or including the application of any treatment or process or the carrying out of any repair, the matters specified in subsection (1) shall be taken to include the effect of the treatment, process or repair.

Trade Descriptions 21

False or misleading statement in advertisement

Section 18

(2)

Where any person is charged with an offence under this section, the onus of proving that the statement made by him is true or not misleading shall be upon the person charged.

Presumption of liability on advertisers, etc.

Section 19

The following persons shall, unless the contrary is proved, be deemed to have given a false or misleading statement in any advertisement:

(a)

the person who directly or indirectly offers to supply the goods or services;

(b)

the person on whose behalf the advertisement is made.

False or misleading statement in relation to contest, games, etc.

Section 20

No person shall make any false or misleading statement—

(a)

that the goods or services offered by him are able to facilitate winning in any contest or game of chance; or

(b)

that any person has already won, will win, or will, on doing a particular act, win a prize or other equivalent benefit, where in fact—

(i)

there is no prize or other equivalent benefit;

(ii)

the prize or other equivalent benefit is not provided as offered; or

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(iii)

taking any action in relation to claiming the prize or other equivalent benefit is subject to that person paying money, incurring cost or any unreasonable condition.

Contravention of Part III to be an offence

Section 21

Any person who contravenes any of the provisions of this Part commits an offence and shall, on conviction, be liable—

(a)

if such person is a body corporate, to a fine not exceeding five hundred thousand ringgit and for a second or subsequent offence, to a fine not exceeding one million ringgit; or

(b)

if such person is not a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

DEFENCES

Offences due to fault of another person

Section 22

(2)

For the purpose of subsection (1), any person may be charged with and convicted of the offence, whether or not proceedings are taken against the first-mentioned person.

Trade Descriptions 23

Defence of personal or domestic use

Section 23

(2)

Where a body corporate is charged with an offence under this

Act, such body corporate shall not be entitled to rely on the defence referred to in this section.

Defence of mistake, accident, etc.

Section 24

(a)

a mistake on his part;

(b)

reliance on information supplied to him;

(c)

the act or default of another person; or

(d)

an accident or some other cause beyond his control, and that he took all reasonable precautions and exercised all due diligence to avoid the commission of such offence by himself or any person under his control.

(2)

If in any case the defence involves the allegation that the commission of the offence was due to a mistake on his part or to reliance on information supplied to him or to the act or default of another person, the person charged shall not, without leave of the

Court, be entitled to rely on that defence unless, within a period of fourteen days of his being charged in Court, he has served on the prosecutor a notice in writing giving such information as was then in his possession identifying or assisting in the identification of that other person.

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(3)

In any proceedings for an offence of supplying or offering to supply goods to which a false trade description is applied, it shall be a defence for the person charged to prove that he did not know, and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods.

(4)

Where a body corporate is charged with an offence under this

Act, such body corporate shall not be entitled to rely on the defence referred to in this section.

Innocent publication of advertisement

Section 25

In any proceedings for an offence committed by reason of publication of an advertisement, it shall be a defence for the person charged to prove—

(a)

that he is a person whose business is to publish or arrange for the publication of advertisement;

(b)

that he received the advertisement for publication in the ordinary course of business; and

(c)

that he did not know or had no reason to suspect that its publication would amount to an offence under this Act.

PROHIBITION OF IMPORTATION OF CERTAIN GOODS, ETC.

Prohibition of importation of goods bearing false indication of origin

Section 26

The Minister may make an order prohibiting the importation of goods into Malaysia where a false trade description is applied to any

Trade Descriptions 25

goods outside Malaysia and the false indication, or one of the false indications, given, or likely to be taken as given, is an indication of the place of manufacture, production, processing or reconditioning of the goods or any part of the goods.

Section 27

Abetting of offences committed abroad

(a)

the false trade description concerned is an indication (or anything likely to be taken as an indication) that the goods or any part thereof were manufactured, produced, processed or reconditioned in Malaysia; or

(b)

the false trade description concerned—

(i)

consists of or comprises an expression (or anything likely to be taken as an expression) to which a meaning is assigned by an order made under paragraph 28(1)(b); and

(ii)

where that meaning is so assigned only in circumstances specified in the order, the trade description is used in those circumstances.

(2)

A person does not commit an offence under subsection (1) if, by order made under section 56, the Minister has specified the non-application of section 5 to those goods being intended for dispatch to a destination outside Malaysia.

(3)

Any person who, in Malaysia, assists in or induces the commission of an act in any other country, in respect of goods which if the act were committed in Malaysia would be an offence under section 26, commits an offence.

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POWER TO DEFINE TERMS, TO REQUIRE

INFORMATION TO BE GIVEN, ETC.

Definition orders

Section 28

(a)

that it would be in the interest of persons to whom any goods are supplied or any services are provided; or

(b)

that it would be in the interest of persons by whom any goods are exported and would not be contrary to the interest of persons to whom such goods are supplied in

Malaysia, that any expression used in relation to the goods or services should be understood as having definite meanings, the Minister may by order, assign such meanings either—

(A)

to those expressions when used in the course of trade or business as, or as part of, a trade description applied to the goods or services; or

(B)

to those expressions when so used in such circumstances as may be specified in the order, and where such a meaning is so assigned to an expression it shall be deemed for the purposes of this Act to have that meaning when used as mentioned in paragraph (A) or, as the case may be, paragraph (B).

(2)

It is an offence for any person who uses the expression which has been defined in the order specified in subsection (1) as a trade description of goods or services, in order to mislead or confuse the person who wants to buy or obtain the goods or services, as if the goods or services were supplied according to the definition given to that expression.

Trade Descriptions 27

(3)

Any person who commits an offence under this section shall, on conviction, be liable—

(a)

if such person is a body corporate, to a fine not exceeding five million ringgit, and for a second or subsequent offence, to a fine not exceeding ten million ringgit; or

(b)

if such person is not a body corporate, to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence, to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both.

Informative marking and certification orders

Section 29

(a)

certified by a competent authority;

(b)

marked with a mark determined by the Minister; or

(c)

accompanied by any information (whether or not amounting to or including a trade description) or instruction relating to the goods, the Minister may, by order, impose requirements for securing that the goods are so certified, marked or accompanied and regulate or prohibit the supply of the goods and the requirements may extend to the form and manner in which the information or instruction is to be given.

(2)

Where an order under this section is in force with respect to goods of any description, any person who, in the course of any trade or business—

28 Laws of Malaysia

(a)

certifies;

(b)

marks;

(c)

supplies; or

(d)

offers to supply, goods of that description in contravention of the order commits an offence and shall, on conviction, be liable—

(A)

if such person is a body corporate, to a fine not exceeding two hundred thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit; or

(B)

if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.

(3)

For the purpose of this section, “competent authority” means a competent authority named by the Minister after obtaining the agreement of the competent authority.

Investigation and complaints

Trade Descriptions 29

Investigation by the Assistant Controller

Section 30

Where the Assistant Controller has reasonable grounds to suspect that any offence is or will be committed under this Act, the

Assistant Controller may conduct such investigation as the Assistant

Controller thinks expedient for the due administration of this Act.

Section 31

Complaints to the Assistant Controller

(2)

The complaint shall specify the person against whom the complaint is made or the premises where the alleged offence is committed and details of the alleged offence under this Act.

Information gathering powers

Power of the Assistant Controller to require provision of information

Section 32

(a)

has any information or any document that is relevant to the performance of the Assistant Controller’s powers and functions under this Act; or

(b)

is capable of giving any evidence which the Assistant

Controller has reason to believe is relevant to the performance of the Assistant Controller’s powers and functions under this Act.

30 Laws of Malaysia

(2)

Notwithstanding any provision of any other written law, the

Assistant Controller, by written notice, may direct any person—

(a)

to provide the Assistant Controller, within the period and in the manner and form specified in the notice, any information or document referred to in subsection (1)—

(b)

to produce to the Assistant Controller, within the period and in the manner specified in the notice, any information or document referred to in subsection (1), whether in physical form or in electronic media;

(c)

to make copies of, or extracts from, any document referred to in subsection (1) and to produce copies or extracts of such documents, as the case may be, to the

Assistant Controller within the period and in the manner specified in the notice;

(d)

if the person is an individual, to appear before the

Assistant Controller at a time and place specified in the notice to give any information, either orally or in writing, and produce any document referred to in subsection (1), whether in physical form or in electronic media;

(e)

if the person is a body corporate or a public body, to cause a relevant and competent officer of the body to appear before the Assistant Controller at a time and place specified in the notice to give any information, either orally or in writing, and produce any document referred to in subsection (1), whether in physical form or in electronic media;

(f)

if the person is a partnership, to cause an individual who is a partner in the partnership or an employee of the partnership to appear before the Assistant Controller at a time and place specified in the notice to give any information, either orally or in writing, and produce any

Trade Descriptions 31

document referred to in subsection (1), whether in physical form or in electronic media; or

(g)

to make a statement to the Assistant Controller providing an explanation of any information or document referred to in subsection (1) within the period and in the manner and form specified in the notice.

(3)

Where the Assistant Controller directs any person to produce any document under subsection (2) and the person is not in custody of the document, that person shall—

(a)

state, to the best of his knowledge and belief, where the document may be found; and

(b)

identify, to the best of his knowledge and belief, the last person who had custody of the document and to state, to the best of his knowledge and belief, where that last-mentioned person may be found.

(4)

Any person directed to provide information under subsection (2)

or (3) shall ensure that the information provided is true, accurate and complete and such person shall provide an express representation to that effect, including a declaration that he is not aware of any other information which would make the information provided untrue or misleading.

(5)

Any person who refuses or fails to comply with the direction made by the Assistant Controller under this section commits an offence.

Assistant Controller may retain documents

Section 33

(2)

The person who provided the document is entitled to be supplied, as soon as practicable, with a copy certified by the Assistant

Controller to be a true copy of the document.

(3)

Notwithstanding the provisions of any other written law, the certified copy of the document shall be admissible as evidence as if it was the original document.

(4)

If the Assistant Controller is satisfied that the retaining of the document is no longer necessary, the Assistant Controller may return the document to the person who provided the document, as soon as practicable.

Access to records

Section 34

(2)

Any person who fails to comply with the direction under subsection (1) commits an offence.

Confidentiality

Section 35

(2)

Nothing in subsection (1) shall operate to prevent the disclosure of information where—

Trade Descriptions 33

(a)

the disclosure is made with the consent of the person from whom the information or document was obtained;

(b)

the disclosure is made in circumstances where the information provided is framed in such a manner that the source of the information could not be ascertained;

(c)

the information is already in the public domain;

(d)

the disclosure is made to facilitate the performance of the functions or powers of the Controller, Deputy Controller or Assistant Controller;

(e)

the disclosure is reasonably made during any proceedings under this Act provided that such disclosure is not made against any direction by the Controller, Deputy

Controller or Assistant Controller before whom those proceedings are taking place; or

(f)

the disclosure is made in connection with the investigation of an offence under this Act.

(3)

For the purposes of this section, “confidential information”

means trade, business or industrial information that belongs to any person, that has economic value and is not generally available to or known by others.

Privileged communication

Section 36

(2)

Where—

34 Laws of Malaysia

(a)

the Controller makes a requirement under section 33 of an advocate and solicitor in respect of any information or document; and

(b)

the information or document contains a privileged communication made by or on behalf of or to the advocate and solicitor in his capacity as an advocate and solicitor, the advocate and solicitor is entitled to refuse to comply with the requirement unless the person to whom or by or on behalf of whom the communication was made or, if the person is a body corporate that is under receivership or is in the course of being wound up, the receiver or the liquidator, as the case may be, agrees to the advocate and solicitor complying with the requirement but, where the advocate and solicitor so refuses to comply with the requirement, the advocate and solicitor shall forthwith furnish in writing to the Controller the name and address of the person to whom or by or on behalf of whom the communication was made.

Giving false or misleading information, evidence or document

Section 37

A person who fails to disclose or omits to give any relevant information, evidence or document, or provides any information, evidence or document that he knows or has reason to believe is false or misleading, in the course of investigation by the Assistant

Controller, commits an offence.

Section 38

Destruction, concealment, mutilation and alteration of records

(a)

destroys, conceals, mutilates or alters; or

Trade Descriptions 35

(b)

sends or attempts to send or conspires with any other person to remove from his premises or send out of

Malaysia, any book, record, accounts, document, computerized data, goods or thing kept or maintained with intent to defraud the Assistant

Controller or to prevent, delay or obstruct the carrying out of an investigation or the exercise of any power by the Assistant Controller under this Act commits an offence.

Section 39

(Deleted by Act A1607).

Section 39A

Power of arrest

(2)

An Assistant Controller making an arrest under subsection

(1)

shall without unnecessary delay take such person to the nearest police station, and thereafter the person shall be dealt with as is provided for by the Criminal Procedure Code [Act 593] as if he had been arrested by a police officer.

Power to enter premises and inspect and seize goods and documents

Section 40

(a)

he may, for the purpose of ascertaining whether any offence under this Act has been committed, inspect any goods and enter any premises other than premises used only for dwelling;

(b)

if he has reasonable cause to believe that an offence under this Act has been committed, he may seize and detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed;

(c)

he may seize and detain any goods or documents which he has reason to believe may be required as evidence in proceedings for an offence under this Act;

(d)

he may, for the purpose of exercising his powers under this subsection to seize goods, but only if and to the extent that it is reasonably necessary in order to secure that the provisions of this Act and of any order made under this Act are duly observed, require any person having authority to do so to break open any container or open any vending machine and, if that person does not comply with the requirement, he may do so himself.

(2)

An Assistant Controller seizing any goods or documents in the exercise of his powers under this section shall inform the person from whom they are seized and, in the case of goods seized from a vending machine, the person whose name and address are stated on the machine as being the proprietor or, if no name and address are so stated, the occupier of the premises on which the machine stands or to which it is affixed.

(3)

Where the goods or documents seized by the Assistant

Controller in the exercise of his powers under this section are by reason of their nature, size or amount not practical to be removed from where they are found, he may by any means seal such goods or documents in the premises or container in which they are found and it

Trade Descriptions 37

shall be an offence for any person without lawful authority to break, tamper with or damage such seal or to remove such goods or documents or to attempt to do so.

Power to enter premises with search warrant

Section 41

(2)

An Assistant Controller entering any premises by virtue of this section may take with him such other persons and such equipment as may appear to him necessary; and on leaving any premises which he has entered by virtue of a warrant under the preceding subsection he shall, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured against trespassers as he found them.

(3)

Without affecting the generality of subsection (1), the warrant issued by the Magistrate may authorize the search and seizure of any book, record, accounts, document, computerized data, goods or thing which contains or is reasonably suspected to contain information as to any offence suspected to have been committed or is otherwise necessary to conduct an investigation into any offence.

(4)

The Assistant Controller conducting a search under subsection (1) may, for the purpose of investigating into the offence, search any person who is in or on the premises.

(5)

The Assistant Controller making a search of a person under subsection (4) may seize, or take possession of, and place in safe

38 Laws of Malaysia custody all things other than the necessary clothing found upon the person, and any other things, in respect of which there is reason to believe are the instruments or evidence of the offence, and such things may be detained until the order by the Court for its disposal.

(6)

If, by reason of its nature, size or amount, it is not practicable to remove any book, record, accounts, document, computerized data, goods or thing seized under this section, the Assistant Controller who effected the seizure shall by any means seal the premises or container in which such book, record, accounts, document, computerized data, goods or thing is found.

(7)

A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (6) or removes any book, record, accounts, document, computerized data, goods or thing under seal or attempts to do so commits an offence.

Power of entry and search and seizure without a warrant

Section 42

If the Assistant Controller is satisfied upon information received that he has reasonable cause to believe that by reason of delay in obtaining a search warrant under section 41 the investigation would be adversely affected or evidence of the commission of an infringement or offence is likely to be tampered with, removed, damaged or destroyed, the Assistant Controller may enter the premises and exercise in, upon and in respect of the premises all the powers referred to in section 41 in as full and ample a manner as if he were authorized to do so by a warrant issued under that section.

Section 43

Access to recorded information or computerized data, etc.

(2)

In exercising his powers, the Assistant Controller—

(a)

may inspect and check the operation of any computer and any associated apparatus or material which he has reasonable cause to suspect is or has been used in connection with that information or data; and

(b)

may require—

(i)

the person, by whom or on whose behalf, the officer has reasonable cause to suspect, the computer is or has been so used; or

(ii)

the person having charge of, or is otherwise concerned with, the operation of the computer, apparatus or material, to provide him with such reasonable assistance as he may require for the purposes of this section.

(3)

The Assistant Controller may make copies or take extracts of the recorded information or computerized data or digitalized data if he deems necessary.

(4)

For the purposes of this section, “access” includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of recorded information and computerized data or digitalized data.

Tipping-off

Section 44

Trade Descriptions 39

(a)

knows or has reason to suspect that an Assistant

Controller is acting, or is proposing to act, in connection with an investigation which is being, or is about to be,

40 Laws of Malaysia conducted under or for the purposes of this Act and discloses to any other person information or any other matter which is likely to prejudice that investigation or proposed investigation; or

(b)

knows or has reason to suspect that a disclosure has been made to an Assistant Controller under this Act and discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure, commits an offence.

(2)

Nothing in subsection (1) makes it an offence for an advocate and solicitor or his employee to disclose any information or other matter—

(a)

to his client or the client’s representative in connection with the giving of advice to the client in the course and for the purpose of the professional employment of the advocate and solicitor; or

(b)

to any person in contemplation of, or in connection with and for the purpose of, any legal proceedings.

(3)

Subsection (2) does not apply in relation to any information or other matter which is disclosed with a view to furthering any illegal purpose.

(4)

In proceedings against a person for an offence under this section, it is a defence to prove that—

(a)

he did not know or suspect that the disclosure made under paragraph (1)(b) was likely to prejudice the investigation; or

(b)

he had lawful authority or reasonable excuse for making the disclosure.

Trade Descriptions 41

(5)

An Assistant Controller or any other person does not commit an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of this Act.

Warrant admissible notwithstanding defects

Section 45

A search warrant issued under this Act shall be valid and enforceable notwithstanding any defect, mistake or omission in the warrant or in the application for such warrant and any book, record, accounts, document, computerized data, goods or thing seized under such warrant shall be admissible in evidence in any proceedings under this Act.

Section 46

List of things seized

(2)

Where the premises are unoccupied, the Assistant Controller who effected the seizure shall wherever possible post a list of the things seized conspicuously on the premises.

Forfeiture of goods

Section 47

(2)

An order for the forfeiture or for the release of any goods seized in exercise of any power conferred under this Act shall be made by the Court before which the prosecution with regard thereto has been held and an order for the forfeiture of the goods 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 goods were the subject matter of or were used in the commission of the offence notwithstanding that no person may have been convicted of such offence.

(3)

If there is no prosecution with regard to any goods seized in exercise of any power conferred under this Act, such goods shall be taken and deemed to be forfeited at the expiration of one calendar month from the date of seizure unless a claim to such goods is made before the date in the manner hereinafter set forth.

(4)

Any person asserting that he is the owner of such goods and that they are not liable to forfeiture may personally or by his agent authorized in writing give written notice to an Assistant Controller that he claims the same.

(5)

On receipt of such notice the Assistant Controller shall refer the claim to the Controller who may direct that such goods be released or forfeited or may direct the Assistant Controller to refer the matter to a Court for decision.

(6)

The Court to which the matter is referred shall issue a summons requiring the person asserting that he is the owner of the goods and the person from whom they were seized to appear before it and upon his appearance or default to appear, due service of the summons being proved, the Court shall proceed to the examination of the matter and on proof that an offence under this Act has been committed and that such goods were the subject matter or were used in the commission of such offence shall order the same to be forfeited or may, in the absence of such proof, order their release.

Trade Descriptions 43

(7)

All things forfeited or deemed to be forfeited shall be delivered to the Assistant Controller and shall be disposed of in accordance with the directions of the Controller.

(8)

Where any goods seized in exercise of the powers conferred by this Act are of a perishable nature or where the custody of such goods involves unreasonable expense and inconvenience, such goods may be sold at any time and the proceeds of the sale held to abide by the result of any prosecution or claim under this section.

Release of things seized

Section 48

(2)

A record in writing shall be made by the Assistant Controller effecting the release of anything under subsection (1) specifying in detail the circumstances of and the reason for the release.

Seizure of perishable goods

Section 49

Where any goods seized in exercise of the powers conferred by this Act are of a perishable nature or where the custody of such goods

44 Laws of Malaysia involves unreasonable expense and inconvenience, such goods may be sold by the Assistant Controller at any time and the proceeds of the sale held to abide by the result of any prosecution or claim under this section.

Section 50

No cost or damages arising from seizure to be recoverable

No person shall, in any proceedings before any court in respect of any book, record, accounts, document, computerized data, goods or thing seized in the exercise or the purported exercise of any power conferred under this Act, be entitled to the costs of such proceedings or to any damages or other relief unless such seizure was made without reasonable cause.

Section 51

Obstruction

(a)

refuses to give any Assistant Controller access to any premises which the Assistant Controller is entitled to have under this Act or in the execution of any duty imposed or power conferred by this Act;

(b)

assaults, obstructs, hinders or delays any Assistant

Controller in effecting any entry which the Assistant

Controller is entitled to effect under this Act or in the execution of any duty imposed or power conferred by this Act; or

(c)

refuses to give any Assistant Controller any information relating to an offence or suspected offence under this Act or any other information which may reasonably be required of him and which he has in his knowledge or power to give, commits an offence.

Trade Descriptions 45

Power to make test purchases

Section 52

Any Assistant Controller shall have the power to make such purchases of goods as may appear expedient for the purpose of determining whether or not the provisions of this Act and order made under this Act are being complied with.

Section 52A

Power to take sample

(2)

Any person who refuses to comply with any demand made by an Assistant Controller under subsection (1) commits an offence.

Evidence of agent provocateur is admissible

Section 53

(2)

Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, and that the agent provocateur is an Assistant Controller, any statement, whether oral or in writing made to the agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.

46 Laws of Malaysia

Presumption and examination with regards to sample

Section 54

(2)

Where packages or receptacles containing goods which contravene the provisions of this Act or are otherwise liable to seizure have been seized, it shall be sufficient only to open and examine one per centum or not less than five samples, whichever is the lesser, of the contents of each package or receptacle seized.

(3)

The court shall presume that the remaining samples contained in the package or receptacle is of the same nature as those samples examined.

Power of investigation

Section 55

Any Assistant Controller investigating any commission of an offence under this Act may exercise all or any of the powers in relation to police investigation in seizable cases given by the Criminal Procedure

Code [Act 593].

GENERAL

Exemption

Section 56

The Minister may, by order published in the Gazette and subject to such conditions specified in the order, exempt the application of any provision of this Act —

(a)

to any person or class of persons; or

Trade Descriptions 47

(b)

to any description of goods which are intended for—

(i)

dispatch to a destination outside Malaysia; or

(ii)

any specific use or purpose as mentioned in the order.

Power to order compliance

Section 56A

(2)

A copy of the order made under subsection (1) shall be served on every person named in it and the order shall take effect immediately after the order is served.

(3)

For the purposes of this section, service may be made by personal service or by A.R. registered post, facsimile transmission or any other means of transmission which results in the order being transmitted in writing to the person named in it.

(4)

The power to make an order under subsection (1) may be exercised by the Controller personally or by any officer authorized in writing by the Controller.

(5)

Any person who fails to comply with any order issued under this section by the Controller or any officer authorized in writing by the

Controller commits an offence.

Contract unaffected by contravention

Section 57

A contract for the supply of any goods shall not be void or unenforceable by reason only of a contravention of any provision of this

Act.

48 Laws of Malaysia

Section 58

Market research experiments

(a)

any goods;

(b)

anything in, on or with which the goods are supplied;

(c)

the appearance or any other characteristic of the goods or of any such thing; or

(d)

the name or description under which the goods are supplied.

(2)

This section applies to any market research experiment with respect to which the following conditions are satisfied:

(a)

that any participant to whom any goods are supplied in the course of the experiment is informed, at or before the time at which they are supplied to him, that they are supplied for such a purpose as is mentioned in subsection (1); and

(b)

that no consideration in money or money’s worth is given by a participant for the goods or any goods supplied to him for comparison.

(3)

Sections 5 and 28 shall not apply in relation to goods supplied or offered to be supplied, whether to a participant or any other person, in the course of a market research experiment to which this section applies.

General penalty

Section 59

Any person who commits an offence under this Act for which no penalty is expressly provided shall, on conviction, be liable—

(a)

if such person is a body corporate, to a fine not exceeding twenty-five thousand ringgit, and for a second or subsequent offence, to a fine not exceeding fifty thousand ringgit; or

(b)

if such person is not a body corporate, to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding one year or to both, and for a second or subsequent offence, to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Jurisdiction to try offences

Section 60

Trade Descriptions 49

Sessions Court shall have jurisdiction to try any offence under this

Act and to impose the full punishment for any such offence.

Section 61

Delegation of powers

(2)

The delegation under subsection (1) shall not preclude the

Controller or the Deputy Controller from exercising at any time the delegated powers, duties or functions.

Institution of prosecution

Section 62

No prosecution for or in relation to any offence under this Act shall be instituted without the consent of the Public Prosecutor.

50 Laws of Malaysia

Section 63

Compounding of offences

(2)

An offer under subsection (1) may be made at any time after the offence has been committed but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer, or such extended time as the Controller may grant, prosecution for the offence may be instituted at the expiry of the time stipulated in the offer against the person to whom the offer was made.

(3)

Upon receipt of the payment under subsection (1), no prosecution shall be taken against such person in respect of such offence.

(4)

The Controller may forfeit or return the goods seized during the case upon receipt of the payment under subsection (1).

(5)

All sums of money accepted under subsection (1) shall be paid into the Federal Consolidated Fund.

Principal liable for acts of servant or agent

Section 64

Where the servant or agent of a person commits an offence or does anything or omits to do anything (which if done or omitted to be done by that person would constitute an offence under this Act), that person shall, notwithstanding that he has no knowledge of the offence, be deemed to be guilty of the offence and shall be liable to punishment for the offence unless he proves that—

(a)

the act or omission complained of was not within the ordinary scope of the employment of the servant or of the agency of the agent; or

Trade Descriptions 51

(b)

the act or omission complained of was done or omitted to be done without his consent or connivance and that he exercised all such diligence to prevent the commission or omission as he ought to have exercised having regard to all the circumstances of the case.

Offences by body corporate

Section 65

(a)

may be charged severally or jointly in the same proceedings with the body corporate; and

(b)

if the body corporate is found guilty of the offence, shall be deemed to be guilty of that offence unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves—

(i)

that the offence was committed without his knowledge, consent or connivance; and

(ii)

that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.

(2)

If any person would be liable under this Act to any punishment or penalty for his act, omission, neglect or default, he shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of his, or of the

52 Laws of Malaysia employee of the agent, if the act, omission, neglect or default was committed—

(a)

by that person’s employee in the course of his employment;

(b)

by the agent when acting on behalf of that person; or

(c)

by the employee of the agent in the course of his employment by the agent or otherwise on behalf of the agent acting on behalf of that person.

Reward for information

Section 66

In the case of a conviction involving a fine, the court imposing the fine may, on the application of the prosecuting officer, direct the payment of any part of the fine in such proportion as the court thinks fit but in any case not exceeding one half of such fine to the person who gave the information leading to the conviction.

Section 67

Public Authorities Protection Act 1948

The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the

Controller, Deputy Controller, Assistant Controller or any officer appointed under section 3 in respect of any act, neglect or default done or committed by him in good faith or any omission omitted by him in good faith, in such capacity.

Section 68

Protection of officers and other persons

No action or prosecution shall be brought, instituted or maintained in any court against—

(a)

the Controller, Deputy Controller, Assistant Controller or any other person in respect of any act ordered or done for the purpose of carrying into effect this Act; and

(b)

any other person in respect of any act done or purported to be done by him under the order, direction or instruction of the Controller if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it.

Power of Minister to make regulations

Section 69

Trade Descriptions 53

(2)

Without prejudice to the generality of subsection (1), regulations may be made for all or any of the following purposes:

(a)

assigning the meaning of any expression or indication used in the course of trade or business;

(b)

prohibiting, restricting or otherwise regulating or controlling the use of any statement, expression or indication used in the course of trade or business;

(c)

prescribing the fee to be imposed in respect of the use of any expression or indication used in the course of trade or business;

(d)

providing for the maintenance of a register or records used in the course of trade or business and prescribing the particulars to be recorded in such register or records;

(e)

prescribing the forms to be used for the purpose to regulate any matter prescribed under this Act;

54 Laws of Malaysia

(f)

prescribing the standard of fineness of articles made of precious metals and regulating or controlling the use of any expression or indication used in the course of trade or business in relation to such standard of fineness; and

(g)

prescribing a penalty of a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding five years for the contravention of or failure to comply with any of the provisions of any regulations made under this Act.

Repeal

Section 70

The Trade Description Act 1972 [Act 87] is repealed.

Section 71

Savings and transitional

under section 70—

(a)

all persons, things and circumstances appointed or created by or under the Trade Description Act 1972 (“the repealed Act”) or existing or continuing under the repealed Act immediately before the commencement of this Act shall, under and subject to this Act, continue to have the same status, operation and effect as they respectively would have had as if the repealed Act had not been so repealed;

(b)

in particular and without affecting the generality of paragraph (a), such repeal shall not affect appointments, orders, rules and regulations issued or made under or by virtue of the repealed Act and in force immediately before the commencement of this Act and such appointments, orders, rules and regulations shall remain in force and shall continue to remain in force as if every

Trade Descriptions 55

such appointment, order, rule and regulation were issued or made under and by virtue of this Act until replaced or revoked by any appointment, order, rule or regulation issued or made under or by virtue of this Act;

(c)

nothing shall affect any person’s liability to be prosecuted or punished for offences committed under the repealed Act immediately before the coming into operation of this Act and the prosecution of such offences shall be taken in accordance with the repealed Act;

(d)

any pending legal proceedings, criminal prosecution, investigation or disciplinary proceedings under the repealed Act shall be continued under the repealed Act;

and

(e)

any reference to the repealed Act in any written law shall be construed as a reference to this Act and any reference to any specific provision of the repealed Act in any written law shall be construed as a reference to a provision of this Act which corresponds as nearly as may be to such specific provision.

Schedule

[Subsection 6(3)]

Sale of Drugs Act 1952 [Act 368]

56 Laws of Malaysia

Act 730

LIST OF AMENDMENTS

Amending law

Short title

In force from

Act A1545

Trade Descriptions (Amendment)

Act 2017 01-01-2018;

s. 3: 01-11-2011

Act A1607

Trade Descriptions (Amendment)

Act 2019 27-12-2019

Act A1639

Trade Descriptions (Amendment)

Act 2021 11-01-2022

57

Act 730

LIST OF SECTIONS AMENDED

Section

Amending authority

In force from

2

Act A1545 01-01-2018

4

5

6

8

9

11

12

15

Act A1545 01-01-2018

39

39A

52A

54

56

56A

69

58 Laws of Malaysia

Amending instrument	Year
AKTA PERIHAL DAGANGAN (PINDAAN) 2017	2017
AKTA PERIHAL DAGANGAN (PINDAAN) 2019	2019
AKTA PERIHAL DAGANGAN (PINDAAN) 2021	2021

*TRADE DESCRIPTIONS ACT 2011

About this act

PART I

(2)

(a)

(b)

(2)

(3)

(4)

(5)

(6)

(7)

PART II

(a)

(b)

(c)

(A)

(B)

(2)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

(k)

(l)

(m)

(n)

(2)

(a)

(b)

(3)

(4)

(5)

(2)

(3)

(4)

(a)

(i)

(ii)

(b)

(c)

(2)

(3)

PART III

(a)

(b)

(c)

(2)

(a)

(b)

(3)

(a)

(i)

(ii)

(b)

(c)

(2)

(2)

(a)

(b)

(c)

(A)

(B)

(C)

(D)

(E)

(F)

(2)

(a)

(b)

(3)

(2)

(a)

(b)