Section 25 — LEMBAGA PEMBANGUNAN INDUSTRI PEMBINAAN MALAYSIA (AMENDMENT) ACT 2011

Quoted provision

Section 35

The Chairman may, in writing, authorize any officer of the Lembaga to exercise the powers of enforcement under this Act.

Quoted provision

Section 35A

Power of investigation

(2)

Upon completion of his investigation, the authorized officer shall immediately give all informations relating to the commission of any offence to an officer in charge of a police station and a police officer may, by warrant, arrest any person who may have committed an offence under this

Act or any regulations made thereunder.

Authority card

Quoted provision

Section 35B

(2)

Whenever such officer exercises any of the power under this Act, he shall, on demand produce to the person against whom the power is being exercised the authority card issued to him under subsection (1).

Search and seizure with warrant

Quoted provision

Section 35C

(a)

any premise or construction site has been used or is about to be used for; or

(b)

there is in any premise or construction site, evidence necessary to the conduct of an investigation into, the commission of an offence under this Act or any regulations or rules made under this Act, the Magistrate may issue a warrant authorizing an authorized officer named therein, at any reasonable time by day or by night and with or without assistance to enter the premise or construction site and if need by force.

(2)

Without affecting the generality of subsection (1), the warrant issued by the Magistrate may authorize the authorized officer to–

(a)

search and seize any construction material, equipment, instrument, book, record, document, computerized document, article or other thing that is reasonably believed to furnish evidence of the commission of such offence;

(b)

take samples of any construction material or thing found in the premise or construction site for the purposes of ascertaining, by testing or otherwise, whether the offence has been committed;

(c)

make copies of or take extracts from any book, record, document, computerized document, article or other thing found in the premise or construction site; and

(d)

direct that the premise or construction site or any part thereof or anything therein, shall be left undisturbed, whether generally or in particular, by affixing a seal.

(3)

An authorized officer entering any premise or construction site under this section may take with him such other person and equipment as may appear to him to be necessary.

(4)

An authorized officer may, in exercise of his powers under this section, if necessary—

(a)

break open any outer or inner door of the premises or construction site or any obstruction to the premises or construction site in order to effect entry into the premise or construction site;

(b)

to remove by force any obstruction to entry, search, seizure or removal as the authorized officer is empowered to effect under this section; and

(c)

to detain any person in the premise or construction site until the search has been completed.

(5)

Where, by reason of its nature, size or amount, it is not practical to remove any construction material, equipment, instrument, book, record, document, computerized document, article or other thing seized under this section, the authorized officer shall, by any means, seal the construction material, equipment, instrument, book, record, document, computerized document, article or other thing in the premise or construction site in which it is found.

Search and seizure without warrant

Quoted provision

Section 35D

An authorized officer, upon information received, who has reasonable cause to believe that by reason of delay in obtaining a search warrant under section 35C —

(a)

the investigation would be adversely affected;

(b)

the object of entry is likely to be frustrated;

(c)

any construction material, equipment, instrument, book, record, document, computerized document, article or other thing that is reasonably believed to

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furnish evidence of the commission of such offence sought may be removed or interfered with; or

(d)

the evidence sought may be tampered with or destroyed, may exercise in respect of the premise or construction site, all the powers referred to in section 35C in as full and ample manner as if he were authorized to do so by a warrant issued under that section.

Examination or testing of seized construction materials, etc.

Quoted provision

Section 35E

(2)

The court shall presume that the construction materials or any other thing found in the premise or construction site are of the same nature, quantity and quality as those seized.

Appointment of analyst

Quoted provision

Section 35F

The Lembaga may appoint any qualified person to be an analyst for the purposes of carrying out an analysis on any construction materials or any other thing and to certify its condition, type, method of manufacturing, quality, standard and grade.

Quoted provision

Section 35G

Certificate of analysis

(2)

Where the Lembaga intends to give in evidence any certificate referred to in subsection (1), it shall deliver a copy of such certificate to the accused not less than ten clear days before the commencement of the trial.

Power to enter premises, etc.

Quoted provision

Section 35H

Notwithstanding sections 35C and 35D, an authorized officer may at any time enter any premise or construction site for the purpose of—

(a)

inspecting any construction material, equipment, instrument, book, record, document, computerized document, article or other thing as the authorized officer considers necessary;

(b)

verifying the accuracy of records or statements of information given to an authorized officer or to the

Lembaga; or

(c)

collecting samples required under this Act.

Search of person

Quoted provision

Section 35I

A person shall not be searched except by another person of the same gender, and such search shall be conducted with strict regard to decency.

Quoted provision

Section 35J

Access to computerized data

(2)

For the purpose of this section, access shall be provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of computerized data.

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Warrant admissible notwithstanding defects

Quoted provision

Section 35K

A search warrant issued under this Act shall be valid and enforceable notwithstanding any defect, mistake or omission therein or in the application for the warrant and any construction material, equipment, instrument, book, record, document, computerized document, article or other thing found in the premise or construction site under the warrant shall be admissible as evidence in any proceedings under this Act.

Quoted provision

Section 35L

List of things seized

(2)

A copy of the list prepared in accordance with subsection (1)

shall be delivered immediately to the occupier of the premises or construction site where the construction material, equipment, instrument, book, record, document, computerized document, article or other thing is found or to his agent or servant at the premise or construction site.

(3)

Where the premise or construction site is unoccupied, the authorized officer shall, whenever possible, post a list of everything seized conspicuously on the premise or construction site.

Power to require attendance of person acquainted with case

Quoted provision

Section 35M

(2)

If any person refuses to attend as so required, the authorized officer may report such refusal to a Magistrate who shall issue a summons to secure the attendance of such person as may be required by the order made under subsection (1).

Examination of person acquainted with case

Quoted provision

Section 35N

(2)

The person examined under subsection (1) shall be legally bound to answer all questions relating to such case put to him by the authorized officer, but such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

(3)

A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to the questions.

(4)

The authorized officer examining a person under subsection (1) shall first inform the person of the provisions of subsections (2) and (3).

(5)

A statement made by any person under this section shall, wherever possible, be reduced into writing and signed by the person making it or affixed with his thumbprint, as the case may be—

(a)

after it has been read to him in the language in which he made it; and

(b)

after he has been given an opportunity to make any correction he may wish.

Admissibility of statement in evidence

Quoted provision

Section 35O

(2)

A statement made under subsection (1) shall not be admissible or used—

(a)

if the making of the statement appears to the court to have been caused by an inducement, threat or promise having reference to the charge against such person proceeding from a person in authority and sufficient, in the opinion of the court, to give that person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him; or

(b)

in the case of a statement made by the person after his arrest, unless the court is satisfied that he was cautioned in the following words or words to the like effect:

“It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a question or not, may be given in evidence.”.

(3)

A statement made by a person before there is time to caution him shall not be rendered inadmissible in evidence merely by reason of his not having been cautioned if he had been cautioned as soon as possible after that.

(4)

Notwithstanding anything to the contrary contained in any written law, a person accused of an offence to which subsection (1) applies shall not be bound to answer any question relating to the case after any caution as referred to in paragraph (2)(b) had been administered to him.

Sale and disposal of seized material

Quoted provision

Section 35P

(a)

the construction material is of a perishable nature or easily deteriorates in quality;

(b)

the custody of the construction material involves unreasonable expense and inconvenience;

(c)

there is a lack or absence of adequate or proper facilities for the storage of the construction material;

or

(d)

the construction material is believed to cause an obstruction or is hazardous to the public.

(2)

Notwithstanding subsection (1), where an analyst certifies, or if the results of tests as certified by an analyst proves, that the construction material tested by him is not in good condition, the authorized officer may keep it in custody or, if no prosecution is instituted in respect of the construction material, cause it to be disposed of in the manner determined by the Chairman.

Seized construction material, etc., liable to forfeiture

Quoted provision

Section 35Q

(2)

Any construction material or the proceeds of sale thereof, or any equipment, instrument, book, record, document, computerized document, article or other thing forfeited or taken and deemed to be forfeited under this Part shall be the property of the Lembaga.

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Release of things seized

Quoted provision

Section 35R

(2)

A record in writing shall be made by the authorized officer effecting the release under subsection (1) specifying in detail the circumstances of and the reason for the release and a copy of the record shall be sent to the Public Prosecutor and to the Inspector-General of Police within seven days of the release.

Cost of holding equipment, etc., seized

Quoted provision

Section 35S

Where any construction material, equipment, instrument, book, record, document, computerized document, article or any other thing seized under this Act or its subsidiary legislation is held in the custody of the Government or the

Lembaga pending completion of any proceedings in respect of an offence under this Act or its subsidiary legislation, the cost of holding in custody shall, in the event of any person being found to have committed an offence, be a debt due to the Government by such person and shall be recoverable accordingly.

Quoted provision

Section 35T

No cost or damages arising from seizure to be recoverable

A person shall not, in any proceedings before any court in respect of any construction material, equipment, instrument, book, record, document, computerized document, article or other 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.

Quoted provision

Section 35U

Obstruction

(a)

assaults, delays, impedes, hinders or obstructs an authorized officer in effecting any entrance which he is entitled to effect under this Act or any of its regulations in the execution of any duty imposed or power conferred by this Act;

(b)

breaks any seal that has been affixed by an authorized officer on any place;

(c)

fails to comply with any lawful demand of an authorized officer in the execution of his duty under this Act;

(d)

fails, refuses or neglects to give any information which may be reasonably required by an authorized officer; or

(e)

without reasonable excuse fails to produce any construction material, equipment, instrument, book, record, document, computerized document, article or other thing required by an authorized officer, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months or to both.

Power of police

Quoted provision

Section 35V

Any police officer not below the rank of Inspector may exercise all the powers of enforcement under this Act.

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Quoted provision

Section 35W

Additional powers

An authorized officer shall, for the purposes of the execution of this Act, have powers to do all or any of the following:

(a)

require the production of records, accounts, computerized data and documents kept by a contractor or other person and to inspect, examine and to download from them, make copies of them or take extracts from them;

(b)

require the production of any identification document from any person in relation to any case or offence under this Act;

(c)

make such inquiry as may be necessary to ascertain whether the provisions of this Act have been complied with.”.

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