Section 13
New Part Va
of Standards of Malaysia (Amendment) Act 2012
The principal Act is amended by inserting after Part V the following Part:
“Part Va
ENFORCEMENT
Authorized officers 21a. (1) The Director General may, in writing, authorize any officer of the Department or public officer to exercise the powers of enforcement under this Act.
16
Authority card 21b. (1) The Director General shall issue to each authorized officer an authority card which shall be signed by the Director
General.
(2)
Whenever the authorized 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 investigation 21c. (1) An authorized officer shall have all the powers necessary to carry out an investigation under this Act.
(2)
In any case relating to the commission of an offence under this Act, an authorized officer carrying out an investigation may exercise all or any of the powers in relation to police investigation in seizable cases given by the Criminal Procedure
Code [Act 593].
Search and seizure with warrant 21d. (1) If it appears to a Magistrate, upon written information on oath from the authorized officer and after such inquiry as the Magistrate considers necessary, that there is reasonable cause to believe that any premises have been used or are about to be used for, or there is in or on any premises evidence necessary to establish the commission of an offence under this Act, the Magistrate may issue a warrant authorizing the authorized officer named in the warrant, at any reasonable time by day or night and with or without assistance—
(a)
to enter the premises and search for, seize and detain any computer, book, record, computerized data, document or other article;
(b)
to inspect, make copies of, or take extracts from, any computer, book, record, computerized data, document or other article so seized and detained;
Standards of Malaysia (Amendment)
(c)
to take possession of, and remove from the premises any computer, book, record, computerized data, document or other article so seized and detain it for such period as may be necessary;
(d)
to search any person who is in, or on, such premises and for the purpose of the search, detain the person and remove him to such place as may be necessary to facilitate the search, and seize and detain any property or document found on the person; or
(e)
to break open, examine, and search any computer, book, record, computerized data, document or other article.
(2)
An authorized officer acting under subsection (1) may, if it is necessary so to do—
(a)
break open any outer or inner door of the premises and enter the premises;
(b)
forcibly enter the premises and every part thereof;
(c)
remove by force any obstruction to the entry, search, seizure, detention or removal as he is empowered to effect; or
(d)
detain any person found on the premises searched under subsection (1) until the search is completed.
(3)
If, by the reason of its nature, size or amount, it is not practicable to remove any computer, book, record, computerized data, document or other article seized under this section, the authorized officer shall, by any means, seal such computer, book, record, computerized data, document or other article.
(4)
Any person who, without lawful authority, breaks, tampers with or damages the seal referred to in subsection (3)
or removes the computer, book, record, computerized data, document or other article under seal or attempts to do so shall be guilty of an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding two years or to both.
18
Search and seizure without warrant 21e. If an authorized officer is satisfied upon information received that by reason of delay in obtaining a search warrant under section 21d the investigation would be adversely affected or evidence of the commission of an offence is likely to be tampered with, removed, damaged or destroyed, the authorized officer may enter the premises and exercise in, upon and in respect of the premises all the powers referred to in section 21d in as full and ample a manner as if he were authorized to do so by a warrant issued under that section.
Warrant admissible notwithstanding defects 21f. A search warrant issued under this Act shall be valid and enforceable notwithstanding any defect, mistake or omission therein or in the application for such warrant, and any computer, book, record, computerized data, document or other article seized under such warrant shall be admissible in evidence in any proceedings under this Act.
Access to computerized data 21g. (1) Any authorized officer conducting a search under this Act shall be given access to computerized data whether stored in a computer or otherwise.
(2)
For the purposes of this section, an authorized officer 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.
List of computers, books, records, etc., seized 21h. (1) Where any seizure is made under this Act, an authorized officer making the seizure shall prepare a list of the computers, books, records, computerized data, documents or other articles seized and shall sign the list.
(2)
The list prepared in accordance with subsection (1)
shall be delivered immediately to the person in control or in charge of the premises which have been searched.
Standards of Malaysia (Amendment)
19
Examination of persons acquainted with case 21i. (1) An authorized officer making an investigation under this Act may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2)
Such person shall be bound to answer all questions relating to the case put to him by the authorized 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.
(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 questions.
(4)
The authorized officer examining a person under subsection (1) shall first inform that person of the provisions of subsections (2) and (3).
(5)
A statement made by any person under this section shall, whenever possible, be reduced into writing and signed by the person making it or affixed with his thumb print, 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 21j. (1) Except as provided in this section, no statement made by any person to an authorized officer in the course of an investigation made under this Act shall be used in evidence.
(2)
When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by that witness to an authorized officer in the course of an investigation under this Act and may then, if the court
20
thinks fit in the interest of justice, direct the accused to be furnished with a copy of it and the statement may be used to impeach the credit of the witness in the manner provided by the Evidence Act 1950 [Act 56].
(3)
Where the accused had made a statement during the course of an investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.
(4)
Nothing in this section shall be deemed to apply to any statement made in the course of an identification parade or falling within section 27 or paragraphs 32(1)(a), (i) and (j)
of the Evidence Act 1950.
(5)
When any person is charged with any offence in relation to the making or the contents of any statement made by him to an authorized officer in the course of an investigation made under this Act, that statement may be used as evidence in the prosecution’s case.
Power to require attendance of persons acquainted with case 21k. (1) An authorized officer making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to him to be acquainted with the facts and circumstances of the case, and such person shall attend as so required.
(2)
If any such person refuses or fails to attend as required by an order made under subsection (1), the authorized officer may report his refusal or failure to a Magistrate who shall issue a warrant to secure the attendance of such person as may be required by the order.
Release of seized computer, book, record, etc.
Quoted provision
Section 21l
(2)
A record in writing shall be made by the authorized officer effecting the release of the computer, book, record, computerized data, document or other article under subsection (1)
specifying in detail the circumstances of and the reason for the release, and he shall send a copy of the record to the
Director General within seven days of the release.
Quoted provision
Section 21m
Cost of holding seized computer, book, record, etc.
Where any computer, book, record, computerized data, document or other article seized under this Act is held in the custody of the authorized officer pending completion of any proceedings in respect of an offence under this Act, the cost of holding it in custody shall, in the event of any person being convicted of such offence, be a debt due to the Government by such person and shall be recoverable accordingly.
No cost or damages arising from seizure to be recoverable 21n. No person shall, in any proceedings before any court in respect of any computer, book, record, computerized data, document or other article 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.
Additional powers 21o. An authorized officer shall, for the purposes of the execution of this Act, have the power to do all or any of the following:
(a)
to require the production of any computer, book, record, computerized data, document or other article kept by any person and to inspect, examine and make copies from them;
(b)
to require the production of any identification document from any person in relation to any act or offence under this Act;
22
(c)
to make such enquiries as may be necessary to ascertain whether the provisions of this Act have been complied with.
Obstruction of authorized officers 21p. Any person who—
(a)
assaults, obstructs, impedes or interferes with any authorized officer in the performance of his powers under this Act;
(b)
refuses any authorized officer access to any premises which the authorized officer is entitled to have under this Act or in the execution of any duty imposed or power conferred by this Act; or
(c)
refuses any authorized officer 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, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years or to both.”.
Amendment of section 22