Enforcement officers
s 35
The enforcement officers are any officer appointed by the Minister upon recommendation of the Competent Authority.
Access to Biological Resources and Benefit Sharing Act 2017 Part IX — POWERS RELATING TO ENFORCEMENT, SEIZURE, ARREST, ETC
Power of investigation
s 36
(1) An enforcement 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, any enforcement officer carrying out an investigation may exercise all or any of the special powers in relation to police investigation in seizable cases given by the Criminal Procedure Code [Act 593]. (3) This section shall not be construed as limiting or affecting any similar powers conferred on any person under any other written law.
Authority card
s 37
(1) There shall be issued to each enforcement officer under section 35 an authority card to be signed by an officer duly designated by the relevant Competent Authority. (2) 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 to enter premises
s 38
An enforcement officer may at any time enter any premises for the purpose of— (a) inspecting any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article as he considers necessary; (b) verifying the accuracy of records or statements or any information given to an enforcement officer; or (c) collecting any biological resource.
Access to computerized data
s 39
Any enforcement officer conducting a search under this Act shall be given access to computerized data whether stored in a computer or otherwise, and for such purpose, 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.
s 40
Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article that an enforcement officer reasonably suspects has been used or will be used in the commission of any offence under this Act may be seized and detained by the enforcement officer.
Power to stop, search and seize conveyances
s 41
(1) If an enforcement officer has reasonable cause to suspect that any conveyance is carrying any biological resource, machinery, contrivance, equipment, book, record, document or other article in respect of which an offence under this Act is being or has been committed, he may stop and examine the conveyance and may, if on examination he has reasonable cause to believe that such conveyance is or has been used for the commission of such offence, seize such conveyance and any biological resource, machinery, contrivance, equipment, book, record, document or other article found in the conveyance that is reasonably believed to furnish evidence of the commission of such offence. (2) The person in control or in charge of the conveyance shall, if required to do so by the enforcement officer— (a) stop the conveyance and allow the enforcement officer to examine it; and (b) open all parts of the conveyance for examination and take all measures necessary to enable or facilitate the carrying out of such examination as the enforcement officer considers necessary. (3) 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 seven years or to both.
Notice of seizure
s 42
(1) Where any seizure is made under this Act, 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 biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized by delivering a copy of such notice to the owner, if the owner or his whereabouts are known. (2) A notice under subsection (1) need not be given if the seizure is made in the presence of— (a) the owner or his agent; (b) the occupier of the premises; or (c) the person in control or in charge of the conveyance where the seizure is made under section 40. (3) Where any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article are stored, kept or found, the enforcement officer seizing the items shall prepare a list of the items seized and immediately deliver a copy signed by him to the owner or person in charge of the place, premises or conveyance which has been searched, or to such owner’s or person’s agent or servant, at that place, premises or conveyance.
Temporary return of conveyance, etc.
s 43
(1) Where any conveyance, machinery, contrivance or equipment is seized under this Act, the court may temporarily return the conveyance, machinery, contrivance or equipment to the owner of the conveyance, machinery, contrivance or equipment or the person from whose possession, custody or control it was seized, subject to such terms and conditions as the court may impose, and subject in any case to sufficient security being furnished to the satisfaction of the court that the conveyance, machinery, contrivance or equipment shall be surrendered to the court on demand and that such terms and conditions, if any, shall be complied with. (2) Where any seized conveyance, machinery, contrivance or equipment is temporarily returned under subsection (1), a person who— (a) fails, on demand, to surrender the conveyance, machinery, contrivance or equipment to the court; or (b) contravenes any of the terms or conditions imposed under subsection (1), commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both.
Forfeiture of seized biological resource, etc.
s 44
(1) Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized in exercise of any power conferred under this Act shall be liable to forfeiture. (2) An order for the forfeiture of any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article 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 biological resource, 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. (3) If there is no prosecution with regard to any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act, such biological resource, 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 biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article was seized indicating that there is no prosecution in respect of such biological resource, 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). (4) Any person asserting that he is the owner of the biological resource, 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 biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article is held that he claims the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article. (5) On receipt of the notice referred to in subsection (4), the enforcement officer shall refer the claim to a Magistrate for his decision. (6) The Magistrate to whom a matter is referred under subsection (5) shall issue a summons requiring the person asserting that he is the owner of the biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article and the person from whom it was seized to appear before him, 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. (7) If it is proved that an offence under this Act or any of its subsidiary legislation has been committed and that the biological resource, 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 biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article to be forfeited, and shall, in the absence of such proof, order its release. (8) Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited shall be delivered to the Competent Authority and shall be disposed of in such manner as the Competent Authority thinks fit, including repatriation under subsection (9) if the Competent Authority so decides. (9) When a decision of repatriation is made under this Act in respect of any biological resource which has been imported into Malaysia in contravention of this Act, and the biological resource was brought into Malaysia in a conveyance, the owner or importer of the biological resource or his agent shall, if required in writing by the Competent Authority, provide or be responsible for— (a) the free passage for the return of the biological resource to the place at which the biological resource was shipped to Malaysia, or to any other port or place designated by the Competent Authority; and (b) where required, proper maintenance and storage of the biological resource during the voyage, flight or journey. (10) No person shall be liable under subsection (9) unless the decision of repatriation has been made by the Competent Authority within— (a) where there are no proceedings instituted, twelve months from the date on which the biological resource were imported into Malaysia; or (b) six months from the date the proceedings for the offence in connection with such importation into Malaysia are concluded. (11) Any person who contravenes subsection (9) commits an offence and shall, on conviction, be liable— (a) where such person is an individual, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both; or (b) where such person is a body corporate, to a fine not exceeding one hundred and fifty thousand ringgit.
Property in forfeited biological resource, etc.
s 45
Any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article forfeited or deemed to be forfeited under this Act shall be the property of the Competent Authority.
Release of seized biological resource, etc.
s 46
Notwithstanding section 44, the Competent Authority may, where it thinks fit, at any time direct that any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized under this Act be released to the person from whose possession, custody or control it was seized.
Cost of holding seized biological resource, etc.
s 47
Where any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized or surrendered under this Act is held in the custody of the Competent Authority 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 Competent Authority or Government, as the case may be, by such person and shall be recoverable accordingly.
No costs or damages arising from seizure to be recoverable
s 48
No person shall in any proceedings before any court in respect of the seizure of any biological resource, conveyance, machinery, contrivance, equipment, book, record, document or other article seized or surrendered 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
s 49
(1) An enforcement officer shall, for the purposes of the execution of this Act or any of its subsidiary legislation, have power to do all or any of the following acts: (a) to require the production of records, accounts and documents and to inspect, examine and copy any of the records, accounts and documents; (b) to require the production of any identification document from any person in relation to any case or offence under this Act or any of its subsidiary legislation; or (c) to make such enquiry as may be necessary to ascertain whether the provisions of this Act or any of its subsidiary legislation have been complied with. (2) A person who fails to comply with a request made under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both.
Back to Access to Biological Resources and Benefit Sharing Act 2017 — full text
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
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