*MALAYSIAN BIOFUEL INDUSTRY ACT 2007

This Act comes into operation on a date to be appointed by the

Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different provisions of this Act in different parts of Malaysia.

Interpretation

In the event of any conflict or inconsistency between the provisions of this Act and those of any other written law pertaining to biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel, the provisions of this Act shall prevail, to the extent of the conflict or inconsistency.

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the type of biofuel as specified in the First Schedule and its percentage by volume to be blended in any fuel; or

any activity in which the use of a biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel shall be made mandatory.

Requirement for licence

commence to construct any biofuel plant or biofuel blending plant;

produce any biofuel;

blend any biofuel with any other fuel or biofuel;

export any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel;

import any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel;

transport any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel connected with upstream activities;

store any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel connected with upstream activities;

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survey any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel; or

test any biofuel, biofuel blended with any other fuel or biofuel blended with any other biofuel, without a valid licence issued under this Act.

For the purposes of subsection (1), “biofuel” refers to the biofuel as specified in the First Schedule.

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

Licensing authority

Every application under subsection (1) shall be accompanied by such document or information as may be prescribed.

The licensing authority may in writing at any time after receiving the application and before it is determined, require the applicant to provide such additional document or information within the time specified by the licensing authority.

If subsection (1), (2) or (3) is not complied with, the application for a licence shall be deemed to be withdrawn and shall not be further proceeded with, but without prejudice to a fresh application being made by the applicant.

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Issue of licence

Where an application for a licence is approved, the licence shall be issued upon payment of the prescribed fee.

The licence may be issued subject to such conditions or restrictions as the licensing authority may think fit to impose.

Licence to be exhibited and produced

A licensee who fails to exhibit or to produce his licence under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding three months or to both.

Transfer of licence

A licensee who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding three years or to both.

The licensing authority may approve the transfer of the licence if—

An application for the transfer of a licence shall be made in writing to the licensing authority.

Assignment of licence

A licensee who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding three years or to both.

Revocation or suspension of licence

any of the provisions of this Act or any other written law or that any of the conditions of the licence has not been complied with;

the issuance of the licence was induced by a false representation of fact by or on behalf of the licensee;

the original purpose for which the licence was issued no longer exists; or

the licensee has ceased to carry on or operate any biofuel activity for which the licence is issued.

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Notwithstanding subsection (1), the licensing authority shall not revoke or suspend the licence on the ground of the breach mentioned in subsection (1) unless the licensing authority is satisfied, after giving the licensee an opportunity of making any representation in writing he may wish to make, that the licence should be revoked or suspended.

Where a licence has been revoked or suspended, it shall have no effect from the date of revocation or during the period of suspension, as the case may be.

Appeals

by the refusal of the licensing authority to issue a licence;

or

by the revocation or suspension of his licence, may, within thirty days after being informed in writing of the refusal, revocation or suspension, appeal in writing against such decision to the Minister.

The Minister may, after considering an appeal made under subsection (1), confirm or set aside the decision appealed against, and the decision of the Minister shall be final.

An appeal made under this section shall be accompanied by the prescribed fees.

Power of Minister to give directions

The Minister may give general directions consistent with this

Act to the licensing authority.

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The licensing authority shall give effect to all directions given under this section as soon as possible.

Powers of Minister to make regulations on licensing

prescribing the manner of applying for licences under this

Act, the fees payable therefor, the conditions to be imposed and the power to limit the number of licences;

prescribing the procedures regarding revocation and suspension of licences; and

prescribing the procedures regarding appeals.

Regulations made under subsection (1) may prescribe any act in contravention of the regulations to be an offence and may prescribe penalties of a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding three years or to both for such offence.

Whenever such enforcement officer exercises any of the powers 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).

Power of arrest

found committing or attempting to commit or abetting the commission of an offence under this Act; or

whom the enforcement officer reasonably suspects of being engaged in committing or attempting to commit or abetting an offence under this Act.

An enforcement officer making an arrest under subsection (1) shall, without unnecessary delay, bring the person arrested to the nearest police station, and thereafter the person shall be dealt in accordance with the law relating to criminal procedure for the time being in force.

Search and seizure with warrant

any premises has been used or are about to be used for;

or

there is in any premises evidence necessary to the conduct of an investigation into,

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the commission of an offence under this Act, the Magistrate may issue a warrant authorizing any enforcement officer named therein, at any reasonable time by day or by night and with or without assistance, to enter the premises and if need be by force.

A warrant issued under subsection (1) may authorize the enforcement officer to—

An enforcement officer entering any premises under this section may take with him such other persons and equipment as may appear to him to be necessary.

An enforcement officer may, in the exercise of his powers under this section, if it is necessary so to do,—

Where, by reason of its nature, size or amount, it is not practicable to remove any fuel, conveyance, machinery, contrivance,

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equipment, book, record, document or other article seized under this section, the enforcement officer shall, by any means, seal such fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article in the premises or container in which it is found.

A person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (5) or removes the fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article under seal, or attempts to do so commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding two years or to both.

Search and seizure without warrant

enter and search such place or premises;

stop and search such person or conveyance; and

seize any fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article which may be found and may be evidence of the commission of such offence.

Power to enter premises

inspecting any fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article as he considers necessary;

verifying the accuracy of records or statements or any information given to an enforcement officer; or

collecting samples of any fuel.

Access to computerized data

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.

Seizure of thing, etc.

The person in control or in charge of the conveyance shall, if required to do so by the enforcement officer—

A person who contravenes subsection (2) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding two years or to both.

List of things seized

The list prepared in accordance with subsection (1) shall be delivered immediately to—

Where the seizure is made in or from any place or premises which is unoccupied, the enforcement officer shall whenever possible post a list of

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things seized conspicuously at or on the place or premises.

Where the fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article is seized otherwise than in or from any place or premises, the enforcement officer making the seizure shall give a notice in writing of the seizure and the grounds of the seizure to the owner of the fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article seized by delivering a copy of such notice to the owner in person or by post at his place of business or residence.

A notice under subsection (4) need not be given if the seizure is made in the presence or with the knowledge of the owner.

Temporary return of conveyance, etc.

Where any seized conveyance, machinery, contrivance or equipment is temporarily returned under subsection (1), a person who—

the fuel easily deteriorates in quality;

the custody of the fuel involves unreasonable expense and inconvenience;

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

the fuel is believed to cause an obstruction or to be a hazard to the public.

Notwithstanding subsection (1), where an analyst appointed under section 38 certifies, or if the results of tests as certified by such analyst proves, that the fuel tested by him is contaminated, the enforcement officer may keep it in custody or, if no prosecution is instituted in respect of the fuel, cause it to be disposed of in the manner determined by the enforcement officer.

Power to require attendance of persons acquainted with case

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

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Examination of persons acquainted with case

Such person shall be bound to answer all questions relating to such case put to him by the enforcement officer, but he 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.

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 questions.

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

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 thumb print, as the case may be, after—

No statement under subsection (1) shall be admissible or used as provided for in that subsection if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the 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.

Where any person is arrested or is informed that he may be prosecuted for any offence under this Act, he shall be served with a notice in writing, which shall be explained to him, to the following effect:

“You have been arrested/informed that you may be prosecuted for .................... (the possible offence under this Act). Do you wish to say anything? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.”.

Notwithstanding subsection (3), a statement by any person accused of any offence under this Act made before there is time to serve a notice under that subsection shall not be rendered inadmissible in evidence merely by reason of no such notice having been served on him if such notice has been served on him as soon as is reasonably possible thereafter.

No statement made by an accused person in answer to a written notice served on him pursuant to subsection (3) shall be construed

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as a statement caused by any inducement, threat or promise as is described in subsection (2), if it is otherwise voluntary.

Where in any criminal proceedings against a person for an offence under this Act, evidence is given that the accused, on being informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so informed, the court, in determining whether the prosecution has made out a prima facie case against the accused and in determining whether the accused is guilty of the offence charged, may draw such inference from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

Nothing in subsection (6) shall in any criminal proceedings—

An order for the forfeiture of the fuel or the proceeds of sale thereof, or the conveyance, machinery, contrivance, equipment, book, record, document or other article shall be made if it is proved to

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the satisfaction of the court that an offence under this Act has been committed and that the fuel or the proceeds of sale thereof, or the 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.

If there is no prosecution with regard to any fuel, or the proceeds of sale thereof, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this

Act, such fuel or the proceeds of sale thereof, or any 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 fuel or the proceeds of sale thereof, or any conveyance, machinery, contrivance, equipment, book, record, document or other article was seized indicating that there is no prosecution in respect of such fuel or the proceeds of sale thereof, or any 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).

Any person asserting that he is the owner of the fuel or the proceeds of sale thereof, or of the 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 fuel or the proceeds of sale thereof, or the conveyance, machinery, contrivance, equipment, book, record, document or other article is held that he claims the fuel or the proceeds of sale thereof, or the conveyance, machinery, contrivance, equipment, book, record, document or other article.

On receipt of the notice referred to in subsection (4), the enforcement officer shall refer the claim to a Magistrate of the First

Class for his decision.

The Magistrate to whom a matter is referred under subsection (5) shall issue a summons requiring the person asserting

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that he is the owner of the fuel or the proceeds of sale thereof, or of the conveyance, machinery, contrivance, equipment, book, record, document or other article and the person from whom it was seized to appear before the Magistrate, 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.

If it is proved that an offence under this Act has been committed and that the fuel or the proceeds of sale thereof, or the 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 fuel or the proceeds of sale thereof, or the conveyance, machinery, contrivance, equipment, book, record, document or other article to be forfeited, and shall, in the absence of such proof, order its release.

Any fuel or the proceeds of sale thereof, or any conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited shall be delivered to the enforcement officer and shall be disposed of in accordance with the directions of the Magistrate.

The licensing authority shall not be liable to any person for any deterioration, no matter how arising, in the quality of any fuel seized under this Act.

Property in forfeited fuel, etc.

The samples demanded, selected, taken or obtained under subsection (1) shall be accepted in any court.

Any person who refuses to comply with any demand made by an enforcement officer under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both.

Procedure for taking sample

The procedure for taking and dealing with the samples shall be as prescribed by regulations.

Appointment of analyst

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

Examination or testing of seized fuel

Any person who fails to furnish any information relating to the composition and use of any fuel as may be required under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding three years or to both.

Additional powers

to require the production of records, accounts and documents from any person in relation to any case or offence under this Act and to inspect, examine and copy any of them;

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

Act; or

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

A person who fails to comply with the requirement made under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or imprisonment for a term not exceeding two years or to both.

Offence to assault or obstruct enforcement officer

assaults, obstructs, impedes or interferes with any enforcement officer in the performance of his functions under this Act;

rescues or endeavours to rescue any fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act; or

before or after any seizure causes the disappearance of, or damages or destroys any fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article in order to prevent the seizure thereof or the securing of the fuel, conveyance, machinery, contrivance, equipment, book, record, document or other article, commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or imprisonment for a term not exceeding three years or both.

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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.

If the amount specified in the offer under subsection (1) is not paid within the time specified in the offer or within such extended period as the licensing authority may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.

Where an offence has been compounded under subsection (1), no prosecution shall thereafter be instituted in respect of such offence against the person to whom the offer to compound was made and any fuel or the proceeds of sale thereof, or any conveyance, machinery, contrivance, equipment, book, record, document or other article seized in connection with the offence may be released or forfeited by the licensing authority, subject to such terms and conditions as the licensing authority thinks fit to impose in accordance with the conditions of the compound.

Institution of prosecution

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

where 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—

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

Where 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

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act, omission, neglect or default of any employee or agent of his, or of the employee of the agent, if the act, omission, neglect or default was committed—

If any book, record, account, document or computerized data which is in evidence or liable to inspection in any civil or criminal proceeding contains any entry in which any informer is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far only as may be necessary to protect the informer from discovery.

If on the trial for any offence under this Act the court after full enquiry into the case believes that the informer wilfully made in his complaint a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding the court is of the opinion that justice cannot be fully done between the parties in that proceeding without the discovery of the informer, the court may require the production of the original complaint, if in writing, and permit enquiry and require full disclosure, concerning the informer.

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Protection against suit and legal proceedings

the enforcement officer or any other officer duly appointed by the licensing authority; and

any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of the licensing authority, enforcement officer or any other officer duly appointed by the licensing authority, 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 and for the carrying into effect the provisions of this Act.

Public servant

The Minister may, at any time by order published in Gazette, revoke any order made under subsection (1) if he is satisfied that such exemption should no longer be granted.

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Amendment of Schedules

Without prejudice to the generality of subsection (1), the

Minister may make regulations for—

Regulations made under this section may prescribe any act in contravention of the regulations to be an offence and may prescribe penalties of a fine not exceeding one hundred and fifty thousand ringgit or imprisonment for a term not exceeding two years or both for such offence.

Transitional provisions