Dangerous Drugs (Forfeiture of Property) 1 LAWS OF MALAYSIA REPRINT Act 340 DANGEROUS DRUGS (FORFEITURE OF PROPERTY) ACT 1988 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 DANGEROUS DRUGS (FORFEITURE OF PROPERTY) ACT 1988 Date of Royal Assent ... ... ... ... ... 11 May 1988 Date of publication in the Gazette ... ... 9 June 1988 PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 340 DANGEROUS DRUGS (FORFEITURE OF PROPERTY) ACT 1988 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title 2. Interpretation PART II OFFENCES IN RELATION TO PROPERTY 3. Use of property for activity constituting certain offences 4. Dealing with, or using, holding, receiving or concealing illegal property 5. Forfeiture of property upon conviction for an offence under section 3 or 4 6. Forfeiture on proof of offence under section 3 or 4 PART III FORFEITURE OF PROPERTY OF LIABLE PERSONS 7. Persons liable to be proceeded against under this Part 8. Application to the High Court 9. Notice to show cause against forfeiture 10. Forfeiture of property in certain cases 11. Forfeiture of certain types of property 12. Certain dealings to be null and void 4 ACT 340 Laws of Malaysia Section 13. Proceedings not to abate upon death of person affected 14. Proceedings under this Part to be within the criminal jurisdiction of the High Court PART IV ARREST, INVESTIGATION AND SEIZURE 15. Power of arrest and detention 16. Power of entry, search and seizure 17. Search of person 18. Obstruction of inspection and search 19. Indemnity 20. Power to intercept communication 21. Special powers of investigation 22. Public Prosecutor's powers to obtain information 23. Public Prosecutor's powers to request information from certain officers 24. Order by Public Prosecutor in relation to a person intended to be proceeded against under section 8, or intended to be or being prosecuted for certain offences 25. Seizure of movable property 26. Further provisions relating to seizure of movable property 27. Special provision relating to seizure of a business 28. Seizure of immovable property 29. Dealings with seized property after seizure to be void 30. Validity of seizure, or sale in consequence thereof, not to be affected by certain objections 31. Release of property seized 32. Forfeiture of property seized under this Act where there is no prosecution, or no proceedings under Part III or no claim thereto PART V FORFEITURE 33. Vesting of forfeited property in the Government Dangerous Drugs (Forfeiture of Property) 5 PART VI EVIDENCE AND PROCEDURE Section 34. Construction and interpretation of this Act 35. Presumption as to liable person and illegal property 36. Admissibility of documentary and other evidence obtained by the Public Prosecutor in exercise of any power under this Act 37. Examination of offenders 38. Protection of informers 39. Evidence of agent provocateur admissible 40. Notice or order not to be invalid for error in description 41. Power of a police officer under other laws relating to criminal procedure PART VII ASSISTANCE TO A FOREIGN COUNTRY 42. Interpretation 43. Request for assistance and authority to render same 44. Information and particulars in relation to persons, bodies, etc. 45. Service of processes or documents 46. Transmission of copies of statements, or records, or results of investigation in Malaysia 47. Examination of witness by a police officer 48. Examination of witness by a Magistrate 49. Search of person or premises 50. Seizure and transmission of property or article 51. Interception of communication 52. Exercise of powers of investigation by the Public Prosecutor 53. Manner or mode of transmission of information, statements, evidence, movable property, etc., to foreign government or foreign authority 54. Transfer of a person in custody in Malaysia into the custody of an authority in a foreign country 55. Payment by a foreign government to the Malaysian Government under this Part 6 ACT 340 Laws of Malaysia PART VIII GENERAL Section 56. Attempts, abetments and criminal conspiracies punishable as offences 57. No bail to be granted in respect of certain offences 58. Offences by bodies corporate or unincorporate and by servants and agents 59. Service of any notice or order 60. General penalty 61. Rewards 62. Regulations 63. Extradition FIRST SCHEDULE SECOND SCHEDULE Dangerous Drugs (Forfeiture of Property) 7 LAWS OF MALAYSIA Act 340 DANGEROUS DRUGS (FORFEITURE OF PROPERTY) ACT 1988 An Act to make provisions for offences in relation to property, and for the seizure and forfeiture of property, connected with activity related to offences under this Act, the Dangerous Drugs Act 1952, or any foreign law corresponding to these Acts or to the provisions for offences under these Acts; for assistance to foreign countries in relation to matters connected with dangerous drugs; and for matters connected with the aforesaid provisions. [10 June 1988] WHEREAS action has been taken and further similar action is being threatened by a substantial body of persons both inside and outside Malaysia-- (1) to organize and carry out trafficking in dangerous drugs, including their importation into and exportation from Malaysia; (2) to spread the dependence on dangerous drugs among various classes of people in Malaysia, thereby causing widespread detriment to public health, security, safety and morals; and (3) to acquire property by trafficking in dangerous drugs and to utilize property for such trafficking; AND WHEREAS the action taken and threatened is prejudicial to public order in Malaysia; AND WHEREAS Parliament considers it necessary to stop such action; Now, therefore, pursuant to Article 149 of the Constitution BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: 8 ACT 340 Laws of Malaysia PART I PRELIMINARY Short title 1. This Act may be cited as the Dangerous Drugs (Forfeiture of Property) Act 1988. Interpretation 2. (1) Subject to subsection (2), and unless the context otherwise requires, terms and expressions used in this Act have the same meaning as assigned thereto in the Dangerous Drugs Act 1952 [Act 234]. (2) In this Act, unless the context otherwise requires-- "associate", in relation to a person, includes-- (a) any person who had been or is residing in the residential premises (including appurtenances) of such person; (b) any person who had been or is an agent or nominee of such person; (c) any person who had been or is managing the affairs or keeping the accounts of such person; (d) any partnership firm of which such person, or any agent or nominee of his, is or had been a partner or a person in charge or control of its business or affairs; (e) any corporation within the meaning of the Companies Act 1965 [Act 125], of which such person, or any agent or nominee of his, had been or is a director or had been or is in charge of or control of its business or affairs, or in which such person, together with any agent or nominee of his, has or have, or had, shares to the total value of not less than ten per centum of the total issued capital of the corporation; (f) any person who had been or is a partner, or a person in charge or control of the business or affairs, of a partnership firm referred to in paragraph (d) at any time when such person, or any agent or nominee of his, had been or is a partner in the partnership firm; Dangerous Drugs (Forfeiture of Property) 9 (g) any person who had been or is a director, or a person in charge or control of the business or affairs, of a corporation referred to in paragraph (e) at any time when such person, or any agent or nominee of his, had been or is a director, or had been or is in charge or control of the business or affairs, of the corporation, or at any time when such person, together with any agent or nominee of his, has or have, or had, shares to the total value of not less than ten per centum of the total issued capital of the corporation; (h) any person who had been or is an agent of any partnership firm or corporation referred to in paragraph (d) or (e) respectively; (i) any person who had been or is keeping the accounts of any partnership firm or corporation referred to in paragraph (d) or (e) respectively; (j) the trustee of any trust, where-- (i) the trust has been created by such person; or (ii) the total value of the assets contributed by such person to the trust at any time, whether before or after the creation of the trust, amounts, or had amounted, at any time, to not less than twenty per centum of the total value of the assets of the trust; (k) any person who has in his possession any property belonging to such person; and (l) any person who is indebted to such person; "bank" means a bank licensed under the *Banking Act 1973 [Act 102], or an Islamic bank licensed under the Islamic Banking Act 1983 [Act 276], or a merchant bank, or any person carrying on any banking business under any written law, or a licensed finance company under the **Finance Companies Act 1969 [Act 6], or the National Savings Bank established under the Bank Simpanan Nasional Act 1974 [Act 146], or any co-operative society registered under any written law relating to co-operative societies; *NOTE--The Banking Act 1973 [Act 102] has since been repealed by the Banking and Financial Institutions Act 1989 [Act 372]­see section 128 of Act 372. **NOTE--The Finance Companies Act 1969 [Act 6] has since been repealed by the Banking and Financial Institutions Act 1989 [Act 372]­see section 128 of Act 372. 10 ACT 340 Laws of Malaysia "banker's books" includes ledgers, day books, cash books, account books and all other books and documents used in the ordinary course of the business of a bank; "business" means any activity carried on for the purpose of gain or profit and includes all property derived from or used in or for the purpose of carrying on such activity, and all rights and liabilities arising from such activity; "conviction" includes any finding of guilt or any order involving any finding of guilt by any court of competent authority in Malaysia or outside Malaysia, regardless whether or not the conviction or finding of guilt is ordered to be recorded, and whether or not the person convicted or found guilty is sentenced to any punishment; "corresponding foreign law" or "foreign law corresponding to" means the provision of any law of any country, territory or place outside Malaysia which is similar in whole, or in part, or in substance, to the Malaysian law in relation to which this expression is used; "dealing" includes-- (a) a purchase, sale, loan, charge, mortgage, lien, pledge, c a v e a t , transfer, delivery, assignment, subrogation, transmission, gift, donation, trust, settlement, deposit, withdrawal, transfer between accounts, extension of credit; (b) any purchase or sale of any securities, monetary instrument, or other instrument whatsoever by whatever means effected; (c) any agency or grant of power of attorney; and (d) any other disposition or dealing in whatever form, or of whatever description or nature, howsoever styled, which results in any right, interest, title or privilege, whether present or future or whether vested or contingent, in the whole or part of any property being conferred on any person; "designated police officer" means a police officer of the rank of Superintendent or above, designated in writing by name or office by the Inspector-General of Police for the purposes of this Act either generally or in relation to any specific provision of this Act; Dangerous Drugs (Forfeiture of Property) 11 "diminished in value", in relation to any property, means the whole or part of the property being expended, utilized, destroyed, or being subjected to any dealing, process or other act, so that it ceases to exist, or is reduced in value or size, or is altered in character; "document" includes-- (a) any letters, figures, marks, inscription, writing, sign, caricature, picture, drawing, or representation in any form; and (b) any visual recording (whether of still or moving images) or sound recording, on any substance, material, thing or article; "final acquittal" means an acquittal at the level of original jurisdiction where there is no appeal against the acquittal, but where there is an appeal against such acquittal, or against any conviction whether at the level of original jurisdiction or at a lower level of appellate jurisdiction, it means an order at the final level of appellate jurisdiction providing for an acquittal, and "finally acquitted" has a corresponding meaning; and for the purpose of this definition "appeal" includes any proceedings in whatever form and howsoever styled in relation to the decision given at the level of original jurisdiction or a lower level of appellate jurisdiction, but does not include any proceedings in relation to a pardon or exercise of leniency by an executive authority; "final conviction" means a conviction at the level of original jurisdiction where there is no appeal against the conviction or against the sentence or other order arising from the conviction, but where there is such an appeal, or where there is an appeal against any order of acquittal, discharge or otherwise whether given at the level of original jurisdiction or at a lower level of appellate jurisdiction, it means an order at the final level of appellate jurisdiction p r o v i d i n g for a conviction, and "finally convicted" has a corresponding meaning; and for the purpose of this definition "appeal" includes any proceedings in whatever form and howsoever styled in relation to the decision given at the level of original jurisdiction or a lower level of appellate jurisdiction, but does not include any proceeding in relation to a pardon or exercise of leniency by an executive authority; 12 ACT 340 Laws of Malaysia "financial institution" includes a bank, or any person within Malaysia, which, in fact, lawfully or unlawfully, carries on any banking business or finance business as defined in the Banking Act 1973 or the Finance Companies Act 1969, respectively, and any bank or person outside Malaysia, which, in fact, lawfully or unlawfully, carries on any similar business; "forfeited" means, in relation to any property, that property forfeited to the Government of Malaysia in accordance with this Act; "held" means, in relation to any property, that property held by a holder; "hold" means, in relation to any property, the holding of that property by a holder; "holder" includes, in relation to any property, any person who is the owner of, any person who is in possession of, any person who is in occupation of, any person who has the custody or control of, and any person who has any other right, interest, title, claim, power, duty or obligation whatsoever in relation to, that property; "illegal property" means any property, whether within or outside Malaysia-- (a) which is wholly or partly derived or obtained from or by means of any prohibited activity carried out by any person after the commencement of this Act; (b) which is the income, earnings or assets wholly or partly derived or obtained from or by means of any property referred to in paragraph (a); (c) which is wholly or partly derived or obtained from or by means of any property referred to in paragraph (a) or (b); (d) which is wholly or partly traceable or attributable to any property referred to in paragraph (a), (b), or (c), or to any income, earnings or assets of any such property; (e) which, after the commencement of this Act, is or was used to assist or facilitate any prohibited activity; Dangerous Drugs (Forfeiture of Property) 13 (f) which is the subject matter of an offence under section 3, 4, or subsection 24(7) or of any Scheduled offence committed after the commencement of this Act; or (g) which, due to any circumstance such as, but not limited to, its nature, value, location or place of discovery, or the time, manner or place of its acquisition, or the person from whom it was acquired, or its proximity to other property referred to in the foregoing paragraphs, can be reasonably believed to be property falling within the scope of any of the foregoing paragraphs; "liable person" means a person referred to in section 7 as being liable to be proceeded against under Part III; "Minister" means the Minister charged with the responsibility for internal security; "monetary instrument" means coin or currency of Malaysia or of any other country, traveller's cheque, personal cheque, bank cheque, money order, investment security in bearer form or otherwise in such form that title thereto passes upon delivery or upon delivery and endorsement, and negotiable instrument in bearer form or otherwise in such form that title thereto passes upon delivery or upon delivery and endorsement; " p r e s c r i b e d " means prescribed by regulations made under section 62; "proceedings under this Act" means any proceedings under any provision of this Act, including any prosecution for an offence under this Act; "prohibited activity" means any act, activity, or conduct taking place in whole or in part within or outside Malaysia which-- (a) constitutes an offence under section 3 or 4 of this Act, or under any foreign law corresponding thereto or which constitutes a Scheduled offence; or (b) although not constituting such an offence, is of such a nature or occurs in such circumstances that it could be reasonably believed therefrom that it would have ultimately resulted in or led to the commission of such an offence; 14 ACT 340 Laws of Malaysia "property" means any movable or immovable property, and includes-- (a) any right, interest, title, claim, chose in action, power, privilege, whether present or future and whether vested or contingent, in relation to any property, or which is otherwise of value; (b) any conveyance executed for conveying, assigning, appointing, surrendering, or otherwise transferring or disposing of immovable property whereof the person executing the conveyance is proprietor or possessed or wherein he is entitled to a contingent right, either for his whole interest or for any less interest; (c) any monetary instrument; (d) any other instrument or securities; (e) any business; and (f) any other tangible or intangible property; "public body" includes-- (a) the Government of Malaysia; (b) the Government of a State; (c) any local authority and any other statutory authority established by, and exercising powers vested in it by, any written law; (d) any department, service or undertaking of the Government of Malaysia, the Government of a State, a local authority, other statutory authority, or of any authority, organization, body or individual specified under paragraph (e); or (e) any authority, organization or body, or any individual referred to by name or office, specified by the Minister by notification in the Gazette to be a public body for the purposes of this Act; "public officer" includes any person in the permanent or temporary employment of a public body; "purchaser in good faith for valuable consideration" means any transferee, assignee, chargee, mortgagee, pledgee, holder of a lien, or lessee, of any property where the transfer, assignment, charge, Dangerous Drugs (Forfeiture of Property) 15 mortgage, pledge, lien, or lease was obtained by him for adequate valuable consideration in money or money's worth, without notice-- (a) that the property is illegal property; or (b) of any circumstances from which, if reasonable inquiries had been made, it might have been discovered that the property is illegal property; "relative", in relation to a person, means-- (a) spouse of the person; (b) brother or sister of the person; (c) brother or sister of the spouse of the person; (d) any lineal ascendant or descendant of the person; (e) any lineal ascendant or descendant of the spouse of the person; (f) spouse of a person referred to in paragraph (b), (c), (d) or (e); (g) any lineal descendant of a person referred to in paragraph (b) or (c); (h) brother or sister or spouse of the brother or sister of any lineal ascendant of the person or his spouse; or (i) any lineal descendant or spouse of any lineal descendant of a person referred to in paragraph (h); "Scheduled offence" means an offence specified or described in the First Schedule to this Act; "securities" includes stocks, bonds, shares, debentures, funds and certificates of deposit; "senior police officer" shall have the same meaning as in the Police Act 1967 [Act 344]; "trust" includes any legal obligation in favour of any beneficiary subject to which any person holds any property. 16 ACT 340 Laws of Malaysia (3) For the purpose of the definition of "relative" in subsection (2)-- (a) the adoption of any person by another under any written law of Malaysia or any country, territory or place outside Malaysia, or under any custom recognized by any class of persons in Malaysia or in any country, territory or place outside Malaysia, shall be treated as creating between the adopter and the adopted person the same natural r e l a t i o n s h i p as the adoptive relationship, and other relationships in relation thereto shall be determined accordingly; and (b) references therein to a relationship include, where relevant, a relationship by the half blood. PART II OFFENCES IN RELATION TO PROPERTY Use of property for activity constituting certain offences 3. (1) Any person who, whether within or outside Malaysia, whether directly or indirectly, whether on behalf of himself or on behalf of any other person, enters into or causes to be entered into any dealing in relation to any property, or in any other manner uses or causes to be used any property-- (a) with the intention, of promoting, managing, establishing, or carrying on any act, activity or conduct which constitutes a Scheduled offence; or (b) with the intention of facilitating or assisting in the promotion, management, establishment or carrying on of the act, activity or conduct referred to in paragraph (a), whether or not such Scheduled offence has been committed, or any person has been charged with or convicted of such offence, shall be guilty of an offence and shall be sentenced to imprisonment for a term of not less than five years and not more than twenty years. (2) It shall not be an offence under subsection (1) where-- (a) the act which constitutes an offence under subsection (1) is committed wholly outside Malaysia; and Dangerous Drugs (Forfeiture of Property) 17 (b) the act, activity or conduct referred to in paragraph (1)(a) or (b) constitutes exclusively an offence under a foreign law referred to in Item 5 of the First Schedule to this Act. Dealing with, or using, holding, receiving or concealing illegal property 4. (1) Any person who, whether within or outside Malaysia whether directly or indirectly, whether on behalf of himself or on behalf of any other person, enters into or causes to be entered into any dealing in relation to any property, or otherwise uses or causes to be used, or holds, receives, or conceals any property, knowing or having reason to believe that such property or any part thereof is illegal property, shall be guilty of an offence and shall be sentenced to imprisonment for a term of not less than five years and not more than twenty years. (2) Where the property which is the subject matter of an offence under subsection (1) is illegal property by reason of its being related to an act, activity or conduct which constitutes an offence referred to in paragraph (a) of the definition of "prohibited activity" under subsection 2(2), the person charged for the offence under subsection (1) shall be liable therefor whether or not any person has been charged with or convicted of the said offence referred to in paragraph (a) of the said definition of "prohibited activity". (3) It shall not be an offence under subsection (1) where-- (a) the act which constitutes an offence under subsection (1) is committed wholly outside Malaysia; and (b) such act relates to illegal property which is property derived or obtained from or by means of an act, activity or conduct which constitutes an offence exclusively under a foreign law referred to in paragraph (a) of the definition of "prohibited activity" under subsection 2(2). Forfeiture of property upon conviction for an offence under section 3 or 4 5. Where any person is convicted of an offence under section 3 or 4, the court which convicts him shall forfeit all the property which is the subject matter of that offence or which has been used for the commission of that offence: 18 ACT 340 Laws of Malaysia Provided that no conveyance which has been used for the commission of the offence shall be forfeited if the offence was committed by a person other than the owner or person in charge of the conveyance and it is proved to the court that the use of such conveyance for the commission of the offence was without the consent of the owner or person in charge of the conveyance and was not due to any neglect, default, or lack of reasonable care by the owner or the person in charge of the conveyance. Forfeiture of proof of offence under section 3 or 4 6. Where it is proved to the satisfaction of the court that an offence under section 3 or 4 has been committed, the court shall make an order for the forfeiture of all property which is the subject matter of that offence or which has been used for the commission of that offence, notwithstanding that no person may have been convicted of the offence: Provided that the proviso to section 5 shall apply in relation to an order for forfeiture under this section. PART III FORFEITURE OF PROPERTY OF LIABLE PERSONS Persons liable to be proceeded against under this Part 7. (1) The following persons shall be liable to be proceeded against under this Part: (a) every person-- (i) who has been finally convicted of an offence under section 3, 4, or subsection 24(7), or under a foreign law corresponding to these sections, or of a Scheduled o f f e n c e , committed at any time after the commencement of this Act; (ii) who is or was detained after the commencement of this Act pursuant to an order of detention or restriction made under any law, in respect of any activity relating to or involving the trafficking in any dangerous drug: Dangerous Drugs (Forfeiture of Property) 19 Provided that the activity forming the ground of detention took place after the commencement of this Act; (iii) who holds, conceals, receives, or uses or causes or allows to be used, any illegal property, knowing or having reason to believe the same to be illegal property; (b) every relative of a person referred to in paragraph (a); (c) every associate of a person referred to in paragraph (a); (d) any holder, whether or not a relative as is referred to in paragraph (b), or an associate as is referred to in paragraph (c), (hereinafter in this paragraph referred to as the "present holder") of any property which was at any time previously held by a person referred to in paragraph (a) unless the present holder or, as the case may be, any one who held such property after the person referred to in paragraph (a) and before the present holder, is or was a purchaser of the property in good faith for valuable consideration; (e) where a person referred to in paragraph (a), (b), (c) or (d) is deceased, his personal representative, or, where there is no personal representative, such person or persons having a beneficial interest in the estate of the deceased as may be specified by a Sessions Court upon application by the Public Prosecutor and after the Sessions Court has given an opportunity to such person or persons to be heard in the matter. (2) A person shall be a relative, associate, or holder, as is referred to in paragraph (1)(b), (c) or (d) respectively, if he is or was at any time such relative, associate or holder, and regardless whether he became such relative, associate, or holder in relation to the person referred to in paragraph (a) before or after the person referred to in paragraph (a) became a liable person. (3) No proceedings against a liable person shall be instituted under this Part if there is pending against him in any court in Malaysia any prosecution for an offence under section 3 or 4, or for an offence referred to in Item 1, 2, 3 or 4 of the First Schedule, and where during the pendency in the High Court of proceedings against a liable person under this Part there is instituted against him in a court in Malaysia any prosecution for any of the aforesaid 20 ACT 340 Laws of Malaysia offences, the proceedings in the High Court under this Part shall be stayed until the proceedings in respect of such prosecution have been finally concluded in the court of original jurisdiction or, where there is an appeal, in the court of final appellate jurisdiction. (4) Where any proceedings in the High Court against a liable person under this Part are prohibited from being instituted, or are stayed, under subsection (3) such prohibition or stay shall not-- (a) affect any earlier seizure of any property, or any earlier order of the Public Prosecutor, under Part IV, or any other earlier exercise by a police officer or the Public Prosecutor of any of his powers under Part IV, arising out of such person being a liable person, and such seizure or such order, or such exercise of powers, as the case may be, shall continue to remain in full force and effect during the pendency of the prosecution and thereafter until the final conclusion of the proceedings under this Part; or (b) prevent the further or continued exercise, or the fresh exercise, by a police officer or the Public Prosecutor of this respective powers under Part IV arising out of such person being a liable person. Application to the High Court 8. (1) If the Public Prosecutor has reason to believe that any person is a liable person he may apply ex parte to the High Court for an order of forfeiture of all the properties of which such person is a holder and which the Public Prosecutor has reason to believe are illegal properties. (2) The application, supported by an affidavit or affidavits, shall-- (a) identify the liable person to be proceeded against, state his address of residence or business, if known, and other relevant particulars, which are known; (b) state the grounds on which he is a liable person; (c) identify the properties to be forfeited, set out their estimated value, and, if known, their location; and Dangerous Drugs (Forfeiture of Property) 21 (d) state any other matter, circumstance or information which, in the opinion of the Public Prosecutor, is relevant to the application. (3) An application under subsection (1) shall be made by filing the same with the Registrar of the High Court who shall thereupon immediately fix a date for its hearing before the High Court. (4) For the avoidance of doubt, it is hereby declared that successive applications may be made under this section-- (a) against any person provided that-- (i) the proceedings under this Part in respect of the earlier application against him under this section have been finally concluded in the High Court, or where there is an appeal, in *the Federal Court; and (ii) the fresh application does not relate to any property which was the subject matter of any earlier application against him; (b) in respect of any property provided that-- (i) the proceedings under this Part in respect of the earlier application in which it is included as the subject matter of the application have been finally concluded in the High Court, or where there is an appeal, in *the Federal Court, and it has been decided that the property is not illegal property; and (ii) the fresh application is not against any person against whom any earlier application under this section had been made. Notice to show cause against forfeiture 9. (1) If at the hearing of the application of the Public Prosecutor under subsection 8(1), the High Court is satisfied that the application is made in accordance with the requirements of section 8, the Court shall issue a notice upon the liable person specified in the application (hereinafter in this Act referred to as the "person affected") and annexing thereto the affidavit or affidavits referred to in subsection 8(2), and calling upon the person affected to attend *NOTE--Previously referred to "the Supreme Court"­see section 46 of the Constitution (Amendment) Act 1994 [Act A885]. 22 ACT 340 Laws of Malaysia before the High Court on a date specified in the notice, which shall not be less than thirty days from the date of the notice, to show cause why all or any of the properties identified under paragraph 8(2)(c), should not be forfeited. (2) A notice under subsection (1) shall, in addition to being served on the person affected, be published in the Gazette on the same date on which it is issued, or as soon as practicable thereafter. (3) Where a notice to any person under subsection (1) specifies any property as being held on behalf of such person by any other person, or as being transferred or sold to, or deposited or kept with, any other person, a copy of the notice shall be served upon such other person. (4) Where before a notice is issued under subsection (1) the Public Prosecutor informs the High Court that the liable person referred to in his application has died regardless whether he died before or after the application was filed, and that no specification of a beneficiary or beneficiaries has been made by a Sessions Court under paragraph 7(1)(e), the notice shall be issued against the personal representative of such person, and where there is no personal representative, against such beneficiary or beneficiaries of his estate as may be specified by the High Court upon an application by the Public Prosecutor, and after giving such beneficiary or beneficiaries an opportunity to be heard. (5) The Public Prosecutor may at any stage during the pendency of any proceedings under subsection (1), apply to the Court for an amendment of the notice issued under that subsection-- (a) by the exclusion there from of any property specified therein; (b) by the inclusion therein of any property not specified therein; or (c) in any other respect, and the Court may, after giving the person affected an opportunity to be heard, make such order on the application as the Court deems just and proper, and where the Court grants the application, whether with or without modifications, it may give such directions in the matter as it may consider necessary, expedient or desirable. Dangerous Drugs (Forfeiture of Property) 23 Forfeiture of property in certain cases 10. (1) At the hearing of the notice to show cause issued under subsection 9(1), the Court shall proceed to consider any evidence that may be given by the person affected or by any other witness tendered by him showing-- (a) that he is not a liable person; (b) that all or any of the properties specified in the Public Prosecutor's application are not illegal properties; or (c) that he is not the holder of all or any of such properties specified in the Public Prosecutor's application. (2) The Public Prosecutor shall be entitled-- (a) to cross-examine the person affected or any other witness tendered by him; (b) where the person affected does not give evidence himself as a witness, to examine the person affected on oath or affirmation as to any matter relevant to the application; and (c) to adduce evidence of witnesses to rebut the evidence adduced by or on behalf of the person affected. (3) Where at the hearing of the notice to show cause under subsection 9(1) the Public Prosecutor satisfies the Court that the person against whom the notice to show cause has been issued cannot be served with the notice as he cannot be traced or has absconded or is outside Malaysia and cannot be compelled to attend before the Court, or where at any time during the proceedings under this section the person affected fails to attend the proceeding after he has been served with the said notice to show cause, the proceeding shall be continued to its final conclusion in his absence. (4) The Court shall, at the conclusion of the proceedings under subsections (1) and (2), record a finding-- (a) whether the person affected is a liable person; (b) whether all or any of the properties specified in the Public Prosecutor's application are illegal properties; and (c) whether the person affected is the holder of all or any of such illegal properties. 24 ACT 340 Laws of Malaysia (5) Where the Court records a finding under subsection (4) to the effect that the person affected is a liable person, that all or any of the properties specified in the Public Prosecutor's application are illegal properties and that the person affected is the holder of such illegal properties, it shall order that such properties, subject to the provisions of this Part, be forfeited. (6) Where the Court finds that all or any of the properties specified in the Public Prosecutor's application are illegal properties but that the person affected is not the holder thereof, then regardless of whether or not the Court finds the person affected to be a liable person the Court shall order that such properties be forfeited, unless another person claims to be lawfully entitled thereto as a purchaser thereof in good faith for valuable consideration or the Public Prosecutor informs the Court that he intends to make a fresh application in respect of such illegal properties against a liable person other than the person affected. (7) Where another person claims under subsection (6) to be lawfully entitled to the illegal properties as a purchaser thereof in good faith for valuable consideration the Court shall proceed to consider such claim, and if, after giving an opportunity to the Public Prosecutor to rebut such claim, the Court is satisfied that such person is not a purchaser thereof in good faith for valuable consideration, it shall order that such properties be forfeited. Forfeiture of certain types of property 11. (1) Where the Court is satisfied that any property which the Court has ordered to be forfeited under subsection 10(5)-- (a) cannot be located or traced; (b) has been disposed of to a purchaser in good faith for valuable consideration; (c) has been removed from Malaysia; (d) is outside Malaysia; (e) has been commingled with other property which cannot be separated or divided without difficulty; or (f) has been diminished in value, Dangerous Drugs (Forfeiture of Property) 25 the Court shall order that any other property of the person affected be forfeited to the value of any property referred to in paragraph (a), (c), (d), or (e), or, in the case of property referred to in paragraph (b) or (f), to the extent of the disposal, or to the extent to which it has been diminished in value, as the case may be, and where there is no other property available for forfeiture, or where the value of the other property ordered to be forfeited is less than the value of the property originally ordered to be forfeited, the Court shall order that an amount equal to the full value of the property originally ordered to be forfeited, or to such full value less the value of the other property ordered to be forfeited, as the case may be, be forfeited, and if such person fails to pay such amount within such period, not exceeding thirty days from the date of such order, as the Court may direct, the Court shall sentence him to imprisonment for a term of not less than three years and not more than seven years. (2) Where the person in respect of whose property an order of forfeiture under section 10 has been made had died before the order was made or dies after it is made and subsection (1) applies in respect of any property so forfeited, the said subsection shall have effect against the estate of the deceased in the same manner as it would have had against him and his property: Provided that no order for payment of an amount shall be made against the personal representative of the estate of the deceased or any beneficiary of such deceased if no property in the estate of the deceased is available for forfeiture or for payment of such amount. (3) (a) For the purposes of this section, the value of any property shall be its market value at the date on which the order under subsection 10(5) was made, or such value as may be determined by a person having special means of knowledge in respect of such property. ( b ) In the event of any dispute over the value of any property, the court shall determine the value after hearing representations by the person affected and the Public Prosecutor. 26 ACT 340 Laws of Malaysia Certain dealings to be null and void 12. (1) Any dealing, contract, or other thing whatsoever effected, done, or entered into, by any person or between any persons after the issue of a notice under subsection 9(1) in respect of any property referred to in, or affected by, the said notice shall be null and void, and shall not be registered or otherwise howsoever given effect to by any person or authority. (2) For so long as the proceedings under this Part in respect of the notice under section 9 have not been finally concluded in the High Court or in *the Federal Court no action, suit or other proceeding of a civil nature shall be instituted or if they are already pending, be maintained or continued in any court or before any other authority against the person named in the notice, or in respect of whose estate or property the notice is issued, or in respect of any property referred to in, or affected by, the notice, and no attachment, execution or other similar process shall be commenced or if it is already pending, be continued with against any such person or in respect of any property on account of any claim, judgment or decree, regardless whether such claim was made, or such judgment or decree was given, before or after the notice was issued, except at the instance of the Government of Malaysia, or of any State, or at the instance of a local authority or other statutory body, or except with the prior consent in writing of the Public Prosecutor. (3) Nothing contained in this section shall derogate from the provisions of subsection 24(8), 24(9) or section 29. Proceedings not to abate upon death of person affected 13. (1) Proceedings under this Part shall not abate upon the death of the person affected but shall be continued to their final conclusion, regardless whether or not such death results from the execution of a sentence of death for any offence under any written law and whether or not such offence is related to or involves any dangerous drug, and where proceedings under this Part are instituted against a person who is under a sentence of death such proceedings shall not impede, delay or in any manner or for any reason affect the process for the execution of such sentence. *NOTE--Previously referred to "the Supreme Court"­see section 46 of the Constitution (Amendment) Act 1994 [Act A885]. Dangerous Drugs (Forfeiture of Property) 27 (2) Where the person affected dies before the conclusion of any proceedings under this Part, but after the issue of the notice against him under subsection 9(1), the proceedings shall be continued against the personal representative of the deceased liable person or, if there is no such personal representative, such beneficiary or beneficiaries of the estate of the deceased liable person as may be specified by the High Court upon application by the Public Prosecutor, and after the High Court has given an opportunity to such beneficiary or beneficiaries to be heard in the matter. (3) Where at any time after any specification of a beneficiary or beneficiaries has been made by a Sessions Court under paragraph 7(1)(e) or by the High Court under subsection 9(4) and subsection (2), representation to the estate of the deceased has been duly taken out, the Public Prosecutor shall apply to the High Court for the said beneficiary or beneficiaries to be substituted by the personal representative, and the High Court shall order accordingly after giving an opportunity to be heard to the said beneficiary or beneficiaries and the said personal representative, and in making any such order the High Court may give all such directions of a transitional, incidental or ancillary nature, or as may be deemed necessary by the High Court. Proceedings under this Part to be within the criminal jurisdiction of the High Court 14. Proceedings under this Part shall be dealt with by the High Court in the exercise of its criminal jurisdiction and the law relating to criminal procedure in the High Court shall apply to such proceedings subject to such modifications as may be prescribed in this Part or in any regulations made under this Act. PART IV ARREST, INVESTIGATION AND SEIZURE Power of arrest and detention 15. (1) Every offence under this Act shall be a seizable offence for the purposes of the Criminal Procedure Code [Act 593]. (2) Any police officer may arrest without a warrant-- (a) any person whom he reasonably suspects to have committed or to be committing an offence under this Act; 28 ACT 340 Laws of Malaysia (b) any person whom he reasonably believes to be a liable person under paragraph 7(1)(a); or (c) without prejudice to paragraph (b), any person against whom the Public Prosecutor intends to make an application under section 8 and has notified his intention in writing to a police officer. (3) Where a person arrested under subsection (2) is serving a sentence of imprisonment, or is under detention under any law relating to preventive detention, or is otherwise howsoever in lawful custody, he shall, upon an order in writing by a senior police officer, be produced before such officer or before any other senior police officer at such place as may be specified in the order for the purpose of investigations into the matter in respect of which he is liable to be arrested under subsection (2), and for such purpose he may be kept in police custody for a period not exceeding fourteen days; and while in such custody such person shall be deemed to be continuing to serve his term of imprisonment or detention, as the case may be. (4) A person arrested under subsection (2) shall be informed of the provisions of subsection (2) under which he is being arrested, and, except in a case falling under subsection (3), shall within twenty-four hours (excluding the time of any necessary journey) be produced before a Magistrate, and shall not be further detained without the order of a Magistrate. (5) A Magistrate may make an order for the detention in police custody of the person produced before him under subsection (4) for a period not exceeding fourteen days if he is satisfied that such detention is necessary for the purpose of investigations in relation to the matter in respect of which he has been arrested. Power of entry, search and seizure 16. (1) Whenever it appears to any senior police officer that there is reasonable cause to suspect that in or on any premises there is concealed or deposited any property liable to forfeiture under this Act, or as to which an offence under this Act is reasonably suspected to have been committed, or any book or document directly or indirectly relating to or connected with any dealing, or intended Dangerous Drugs (Forfeiture of Property) 29 dealing, whether within or outside Malaysia, in respect of any property liable to seizure or forfeiture under this Act or which would, if carried out, be an offence under this Act, he may at any time by day or by night-- (a) enter such premises and there search for, and seize and detain, any such property, book or document; (b) search any person who is in or on such premises, and for the purpose of such search, detain such person and remove him to such place as may be necessary to facilitate such search; (c) arrest any person who is in or on such premises in whose possession any property liable to seizure or forfeiture under this Act is found, or whom the officer reasonably believes to have concealed or deposited such property; (d) seize and detain any book or document found in or on such premises or on such person; (e) break open, examine, and search, any article, container or receptacle; or (f) stop, search and detain any conveyance. (2) Such officer may if it is necessary so to do-- (a) break open any outer or inner door or window of such premises and enter thereinto; (b) forcibly enter such premises and every part thereof; (c) remove by force any obstruction to such entry, search, seizure and removal as he is empowered to effect; or (d) detain every person found in or on such premises, until such premises have been searched. (3) Subsections (1) and (2) shall not apply in relation to banker's books in a bank. Search of person 17. (1) A senior police officer may search, or cause to be searched, any person whom he has reason to believe has on his person any property liable to seizure or forfeiture under this Act, or any article whatsoever necessary for the purpose of any investigation under 30 ACT 340 Laws of Malaysia this Act, and for the purpose of such search may detain such person for such period as may be necessary to have the search carried out, which shall not in any case exceed twenty-four hours without the authorization of a Magistrate, and may remove him in custody to such place as may be necessary to facilitate such search. (2) A search of a person under this section or under section 16 may extend to a medical examination of his body, both externally and internally, by a medical officer. (3) No female person shall be searched under this section or under section 16 except by another female. Obstruction of inspection and search 18. Any person who-- (a) refuses any officer authorized to enter or search, access to any premises, or fails to submit to search by a person authorized to search him; (b) assaults, obstructs, hinders or delays him in effecting any entrance which he is entitled to effect under this Act, or in the execution of any duty imposed or power conferred by this Act; (c) fails to comply with any lawful demands of any police officer in the execution of his duty under this Act; (d) refuses or neglects to give any information which may reasonably be required of him and which he has it in his power to give; (e) fails to produce or conceals or attempts to conceal any property, document, or books in relation to which there is reasonable ground for suspecting that an offence has been or is being committed under this Act, or which is liable to seizure under this Act; (f) rescues or endeavours to rescue or causes to be rescued any thing which has been duly seized; (g) furnishes to any officer as true, information which he knows or has reason to believe to be false; or Dangerous Drugs (Forfeiture of Property) 31 (h) before or after any seizure, breaks or otherwise destroys anything to prevent the seizure thereof, or the securing of the same, 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 one year or to both. Indemnity 19. (1) The Government shall not be liable to make good any damage which any goods or any property may sustain as a result of an entry, search, seizure or detention under any provision of this Act, unless such damage shall have been caused by the wilful neglect or default of a public officer employed by the Government. (2) If the amount of compensation in respect of any damage so caused is not agreed upon between the Government and the claimant, it shall upon application by the Public Prosecutor or the person claiming the compensation be summarily ascertained and determined by a Court of a First Class Magistrate. Power to intercept communication 20. (1) Notwithstanding the provisions of any other written law, whether enacted before or after the commencement of this Act, the Public Prosecutor, if he considers that it is likely to contain any information which is likely to be relevant for the purpose of any investigation into an offence under section 3, 4, or subsection 24(7), or any corresponding foreign law, or for the purpose of any proceedings under Part III, or for any other purpose under this Act, may, on the application of a police officer not below the rank of Superintendent of Police authorize any police officer-- (a) to intercept, detain and open any postal article in the course of transmission by post; (b) to intercept any message transmitted or received by any telecommunication; or (c) to intercept or listen to any conversation by any telecommunication. 32 ACT 340 Laws of Malaysia (2) When any person is charged with an offence under section 3, 4, or subsection 24(7), or when any proceedings are taken under Part III, any information obtained by a police officer in pursuance of subsection (1), whether before or after such person is charged, or before or after such proceedings are commenced, shall be admissible at his trial in evidence, or in the proceedings as aforesaid, as the case may be. (3) An authorization by the Public Prosecutor under subsection (1) may be given either orally or in writing, and either to any particular police officer or generally to the Inspector-General of Police and all other police officers: Provided that where an oral authorization is given, the Public Prosecutor shall, as soon as practicable, reduce the authorization into writing. (4) A certificate by the Public Prosecutor that the action taken by a police officer in pursuance of subsection (1) had been authorized by him under subsection (1) shall be conclusive evidence that it had been so authorized, and such certificate shall be admissible in evidence without proof of signature thereof. (5) No person shall be under any duty, obligation or liability, or be in any manner compelled, to disclose in any proceedings the procedure, method, manner or means, or any matter whatsoever related thereto, with regard to anything done under paragraph (a), (b) or (c) of subsection (1). (6) For the purpose of this section-- "postal article" shall have the same meaning as in the *Post Office Act 1947 [Act 211]; and