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STRATEGIC TRADE BILL 2010

ARRANGEMENT OF CLAUSES

PART I

PRELIMINARY

Clause

1. Short title and commencement

2. Interpretation

3. Prevailing law

4. Extra-territorial application

PART II

APPOINTMENT AND POWERS OF STRATEGIC TRADE CONTROLLER

5. Appointment of Controller, etc

6. Functions and powers of Controller

PART III

CONTROL OF STRATEGIC ITEMS, UNLISTED ITEMS AND RESTRICTED ACTIVITIES

7. Strategic items

8. Restricted and prohibited end-users

9. Export, transhipment and transit of strategic items and unlisted items

10. Provision of technical assistance

11. Brokering of strategic items

12. Transactions involving unlisted items and restricted activities

PART IV

PERMIT AND REGISTRATION

13. Application of Act to permits and registration

14. Application for permit

15. Additional documents or information

16. Grant or refusal of permit

17. Suspension and revocation of permit

18. Unauthorized use of permit

19. Registration of brokers

20. Disqualification for offences

21. Suspension of permit or registration upon disqualification

22. Application to remove disqualification

23. Endorsement on permit

24. Maintenance of documents and register

25. Registers

PART V

ENFORCEMENT

26. Application of Act for enforcement

27. Production of authority card

28. Powers of authorized officers

29. Powers of investigation

30. Search and seizure without warrant

31. Access to places or premises

32. Access to computerized data

33. Power to search conveyances

34. Use of force

35. List of items seized

36. Power of arrest

37. Interception of communications

38. Power to require attendance of person acquainted with case

39. Examination of person acquainted with case

40. Offences with respect to information

41. Disposal of seized strategic items and unlisted items

42. Admissibility of evidence

43. Forfeiture of strategic items and unlisted items when there is no prosecution

44. Cost of holding strategic items and unlisted items seized

45. No costs or damages arising from seizure to be recoverable

46. Obstruction of authorized officer

PART VI

GENERAL

47. Exemption

48. Institution of prosecution

49. Offences by body corporate

50. Offences by employee or agent

51. Notice for disclosure of information

52. Information is privileged and confidential

53. Protection of officers

54. Protection of Government, etc. from liability

55. Regulations

56. Amendment of Schedule

57. Saving and transitional

SCHEDULE

A BILL

i n t i t u l e d

An Act to provide for control over the export, transhipment, transit and brokering of strategic items, including arms and related material, and other activities that will or may facilitate the design, development and production of weapons of mass destruction and their delivery systems and to provide for other matters connected therewith, consistent with Malaysia’s national security and international obligations.

[ ]

ENACTED by the Parliament of Malaysia as follows:

PART I

PRELIMINARY

1. Short title and commencement

(1) This Act may be cited as the Strategic Trade Act 2010.

(2) 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 different provisions of this Act.

2. Interpretation

In this Act, unless the context otherwise requires:-

"authorized officer" includes:-

(a) an officer of customs;

(b) a police officer;

(c) an officer of the Malaysian Maritime Enforcement Agency;

(d) an officer of the Malaysian Communications and Multimedia Commission;

(e) such other officers as may be specified by the Controller;

"biological agent" means any microbial, micro-organism, virus or infectious substance derived from them naturally or artificially, as well as their components and whatever their origin or method of production;

"biological weapon" means any microbial or other biological agents or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purpose, and weapons, equipment or means of delivery designed to use biological agents or toxins for hostile purposes or in armed conflict;

"bring in transit" means to bring items from any country into Malaysia by land, sea or air, where the items are to be taken out from Malaysia on the same conveyance on which they are brought into Malaysia or any other conveyance and whether or not such items are landed or transhipped in Malaysia, but does not include the passage through Malaysia in accordance with international law of a foreign conveyance carrying any items;

"brokering" means the activity of a person who, either on his own behalf or acting as an agent on behalf of another person:-

(a) negotiates, arranges for or facilitates the purchasing, financing, conveying, sale or supply of items; or

(b) buys, sells or supplies such items;

"chemical weapon" has the same meaning as assigned to it under the Chemical Weapons Convention Act 2005 [Act 641];

"Controller" means the Strategic Trade Controller appointed under section 5, and includes the Deputy Strategic Trade Controller;

"conveyance" includes any vessel, train, vehicle, aircraft and any other means of transport by which persons or items can be carried;

"device" means any medium in which information, visual images, sounds or other data is or are recorded, stored or embodied in any form so as to be capable (with or without the aid of other equipment) of being retrieved or produced therefrom;

"export" means:-

(a) to take or cause to be taken out of Malaysia any items by land, sea or air, or to place any items in a conveyance for the purpose of such items being taken out of Malaysia by land, sea or air; or

(b) to transmit technology by any means to a destination outside Malaysia, and includes any oral or visual transmission of technology by a communications device where the technology is contained in a document the relevant part of which is read out, described or otherwise displayed over the communications device in such a way as to achieve a similar result;

"items" includes goods and technology; "Minister" means the Minister charged with the responsibility for international trade and industry;

"nuclear weapons" means any device which is capable of releasing nuclear energy in an uncontrolled manner and which has a group of characteristics that are appropriate for use for warlike purposes, but does not include the delivery system if it is separable from the device;

"owner", in relation to:-

(a) strategic items or unlisted items, includes any person being or holding himself out to be the owner, importer, exporter, consignee, agent or person in possession of, or beneficially interested in, or having any control of, or power of disposition over, the strategic items or unlisted items; and

(b) a conveyance, includes every person acting as agent for the owner or who receives freight or other charges payable in respect of the conveyance;

"permit" means a permit issued under this Act, and includes a special permit;

"related laws" means the written laws specified in the Schedule;

"relevant Authority" means the Authority designated under the related laws for the regulation of the strategic items, unlisted items and restricted activities, and includes the Controller;

"restricted activity" means:-

(a) any activity that supports the development, production, handling, usage, maintenance, storage, inventory or proliferation of any weapon of mass destruction and its delivery systems; or

(b) participation in transactions with persons engaged in such activities;

"software" means a collection of one or more programmes or microprogrammes recorded, stored or embodied in any device;

"strategic items" means any items prescribed as strategic items under section 7;

"strategic technology" means technology prescribed as a strategic item under section 7;

"technical assistance" includes instructions, skills, training, the provision of working knowledge and consulting services and may involve the transfer of technical data;

"technical data" includes blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions in print or electronic format;

"technology" means information and data in any form for the design, development, production or use of another item and includes technical data, technical assistance and software;

"toxin" means any poisonous substance, whatever its origin or method of production, produced by a living organism or artificially synthesised which can cause illness, injury or death;

"tranship" means to remove items from the conveyance on which they were brought into Malaysia and to place the items on the same or another conveyance for the purpose of taking them out of Malaysia where these acts are carried out on a through bill of lading, through airway bill or through manifest;

"transmit", in relation to strategic technology, means:-

(a) to transmit the technology in Malaysia by electronic means; or

(b) to make the technology available in Malaysia on a device,

so that the strategic technology becomes accessible to any person, whether within or outside Malaysia;

"unlisted items" means items that may be used in a restricted activity but are not prescribed as strategic items under section 7;

"weapons of mass destruction" means any weapon designed to kill, harm or infect people, animals or plants through the effect of nuclear explosion or dispersion or the toxic properties of a chemical weapon or the infectious or toxic properties of a biological weapon, and includes a delivery system designed, adapted or intended for the deployment of such weapons.

3. Prevailing law

(1) The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other written law, including the related laws, relating to the prevention of the proliferation of weapons of mass destruction and their delivery systems.

(2) In the event of any conflict or inconsistency between the provisions of this Act and those of any other written laws, including the related laws, the provisions of this Act shall prevail and the conflicting or inconsistent provisions of the other written laws shall, to the extent of the conflict or inconsistency, be deemed to be superseded.

4. Extra-territorial application

(1) This Act shall, in relation to any person, whatever his nationality or citizenship, have effect outside as well as within Malaysia, and where an offence under this Act is committed by any person in any place outside Malaysia, he may be dealt with in respect of such offence as if the offence was committed at any place within Malaysia.

(2) For the purposes of subsection (1) and in relation to the transmission of strategic technology, this Act shall apply if, for the offence in question, the transmission of the strategic technology utilized any equipment or device located in Malaysia or was routed through any equipment or device located in Malaysia.

PART II

APPOINTMENT AND POWERS OF STRATEGIC TRADE CONTROLLER

5. Appointment of Controller, etc

(1) The Minister may appoint, from among public officers, a Strategic Trade Controller and a Deputy Strategic Trade Controller.

(2) The Controller shall perform the functions and duties imposed and exercise the powers conferred upon him under this Act.

(3) The Deputy Strategic Trade Controller may perform all functions and duties imposed and exercise all powers conferred upon the Controller under this Act.

(4) The Controller may appoint such public officers and any other officers as may be necessary to assist him in the performance of his functions under this Act.

(5) The Controller shall have the general direction and control of the Deputy Strategic Trade Controller and the officers appointed under subsection (4).

6. Functions and powers of Controller

(1) The Controller shall, in relation to strategic items, unlisted items and restricted activities, have the following functions:-

(a) dealing with strategic items, unlisted items and restricted activities under this Act, including the issuance of permits and the registration of brokers to the extent that it is not otherwise provided for under the related laws;

(b) issuing guidelines for dealing with applications for permits and registration;

(c) issuing guidelines for dealing with applications for the export of unlisted items;

(d) issuing directives or guidelines on the implementation of export screening processes;

(e) issuing lists specifying persons not to be issued permits and persons not to be registered as brokers;

(f) seeking assistance from any government, international organization or person in the implementation of this Act;

(g) doing anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (f).

(2) The Controller shall have all such powers as may be necessary for, or in connection with, or reasonably incidental to, the performance of his functions under this Act.

(3) The Controller shall have the general direction and control of authorized officers for the purpose of regulating strategic items, unlisted items and restricted activities under this Act.

PART III

CONTROL OF STRATEGIC ITEMS, UNLISTED ITEMS AND RESTRICTED ACTIVITIES

7. Strategic items

(1) The Minister may, by order published in the Gazette, prescribe any items as strategic items for the purposes of this Act.

(2) If any question arises as to whether any item is or is not included in a class of items appearing in an order made under subsection (1), such question shall be decided by the Controller.

8. Restricted and prohibited end-users

(1) The Minister may designate an end-user to be a restricted end-user for which a special permit is required under this Act.

(2) The Minister may designate an end-user to be a prohibited end-user to which all export, transhipment or transit of strategic items or unlisted items under this Act are prohibited.

(3) A list of the restricted end-users and prohibited end-users shall be published by order in the Gazette, and the Minister may amend the list from time to time.

9. Export, transhipment and transit of strategic items and unlisted items

(1) No person shall export, tranship or bring in transit strategic items unless he obtains a permit issued under this Act.

(2) No person shall export, tranship or bring in transit strategic items or unlisted items to a restricted end-user specified in subsection 8(1) unless he obtains a special permit issued under this Act.

(3) No person shall export, tranship or bring in transit strategic items or unlisted items to a prohibited end-user specified in subsection 8(2).

(4) A person who contravenes subsection (1) commits an offence and shall, on conviction:-

(a) in relation to strategic items which are arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such strategic items without a permit or with knowledge that the export, transhipment or bringing in transit of such strategic items without a permit is unlawful:-

(A) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(B) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such strategic items without a permit or without knowledge that the export, transhipment or bringing in transit of such strategic items without a permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit; and

(b) in relation to strategic items other than arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such strategic items without a permit or with knowledge that the export, transhipment or bringing in transit of such strategic items without a permit is unlawful, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such strategic items without a permit or without knowledge that the export, transhipment or bringing in transit of such strategic items without a permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit.

(5) A person who contravenes subsection (2) commits an offence and shall, on conviction:-

(a) in relation to strategic items or unlisted items which are arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such items without a special permit or with knowledge that the export, transhipment or bringing in transit of such items without a special permit is unlawful:-

(A) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(B) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such items without a special permit or without knowledge that the export, transhipment or bringing in transit of such items without a special permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit; and

(b) in relation to strategic items and unlisted items other than arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such items without a special permit or with knowledge that the export, transhipment or bringing in transit of such items without a special permit is unlawful, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such items without a special permit or without knowledge that the export, transhipment or bringing in transit of such items without a special permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit.

(6) A person who contravenes subsection (3) commits an offence and shall, on conviction:-

(a) in relation to strategic items or unlisted items which are arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such items or with knowledge that the export, transhipment or bringing in transit of such items is unlawful:-

(A) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(B) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such items or without knowledge that the export, transhipment or bringing in transit of such items is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit; and

(b) in relation to strategic items and unlisted items other than arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such items or with knowledge that the export, transhipment or bringing in transit of such items is unlawful, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such items or without knowledge that the export, transhipment or bringing in transit of such items is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit.

(7) This section shall not apply to the export of any document in which any strategic technology is recorded, stored or embodied, or to the transmission of such strategic technology, to the extent that the export or transmission is necessary to facilitate:-

(a) the installation, operation, maintenance or repair of any items which have been exported;

(b) an application for a patent; or

(c) a research in such strategic technology, the results of which have no practical application.

10. Provision of technical assistance

(1) No person shall provide any technical assistance within or outside Malaysia if such technical assistance is intended for use in connection with a restricted activity.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction:-

(a) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(b) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit.

11. Brokering of strategic items

(1) No person shall carry out an act of brokering of any strategic items unless he is registered under section 19, and where required under the related laws, holds a valid permit for the brokering of such strategic items from the relevant Authority under the related laws where:-

(a) he has been notified by the relevant Authority or an authorized officer that such strategic items may be intended or are likely to be used, wholly or in part, for or in connection with a restricted activity;

(b) he knows that such strategic items are intended to be used, wholly or in part, for or in connection with a restricted activity; or

(c) he has reasonable grounds to suspect that such strategic items are intended or are likely to be used, wholly or in part, for or in connection with a restricted activity.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction:-

(a) in relation to strategic items which are arms or related material:-

(i) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(ii) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(b) in relation to strategic items other than arms or related material, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit.

(3) In any proceedings for an offence in respect of any strategic items referred to in paragraph (1)(c), it shall be a defence for the accused to prove that he has made all reasonable inquiries as to the use or proposed use of the items and is satisfied from such inquiries that the items will not be used for or in connection with a restricted activity.

12. Transactions involving unlisted items and restricted activities

(1) If a person is informed by the relevant Authority or otherwise knows or has reason to believe that any unlisted item will or may be used for a restricted activity, then the person shall notify the relevant Authority of his intention to export that unlisted item at least thirty days before that export is to be carried out.

(2) Upon such notification, the relevant Authority shall decide whether or not to allow that export to proceed.

(3) The relevant Authority may decide to allow that export to proceed subject to the granting of a permit under this Act.

(4) A person who contravenes subsection (1) commits an offence and shall, on conviction:-

(a) in relation to unlisted items which are arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such unlisted items without a permit or with knowledge that the export, transhipment or bringing in transit of such unlisted items without a permit is unlawful:-

(A) where death is the result of the act, be punished with death or imprisonment for natural life, and in the case of a body corporate, be punished with a minimum fine of thirty million ringgit; or

(B) in any other case, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such unlisted items without a permit or without knowledge that the export, transhipment or bringing in transit of such unlisted items without a permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit; and

(b) in relation to unlisted items other than arms or related material:-

(i) where the act is done with the intent to unlawfully export, tranship or bring in transit such unlisted items without a permit or with knowledge that the export, transhipment or bringing in transit of such unlisted items without a permit is unlawful, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit; or

(ii) where the act is done without the intent to unlawfully export, tranship or bring in transit such unlisted items without a permit or without knowledge that the export, transhipment or bringing in transit of such unlisted items without a permit is unlawful, be punished with imprisonment for a term of not less than five years or with a fine of not less than five million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of ten million ringgit.

PART IV

PERMIT AND REGISTRATION

13. Application of Act to permits and registration

Without prejudice to the general application of the related laws, for the purpose of strategic items, unlisted items and restricted activities regulated under this Act, the relevant Authority shall deal with the permits and registration required for such strategic items, unlisted items and restricted activities in accordance with the provisions of this Act.

14. Application for permit

(1) An application for a permit or special permit referred to in section 9 shall be made to the relevant Authority in accordance with the regulations made under this Act.

(2) Every application under subsection (1) shall be accompanied by an end-use statement.

(3) An application under this section may be withdrawn at any time before it is granted or refused.

15. Additional documents or information

(1) The relevant Authority may, at any time after the receipt of an application under section 14 and before the application is determined, by a written notice, require the applicant to provide any additional documents or information to the relevant Authority within the period specified in the notice.

(2) If the additional documents or information required under subsection (1) are not provided by the applicant within the period specified in the notice or any extended period granted by the relevant Authority, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without affecting the right of the applicant to make a fresh application.

16. Grant or refusal of permit

(1) The relevant Authority may, after considering the application for a permit under section 14 and any additional documents or information provided under section 15 and being satisfied that all the requirements have been fulfilled, grant the permit or refuse to grant the permit.

(2) The relevant Authority may impose such conditions as it considers appropriate in granting the permit.

(3) Every permit granted under subsection (1) shall set out the duration of the permit.

(4) The conditions imposed under the permit may at any time be varied or amended by the relevant Authority provided that the holder of the permit is given a reasonable opportunity of being heard.

(5) The decision of the relevant Authority under this section shall be communicated to the applicant by written notice as soon as practicable.

(6) The written notice by the relevant Authority under subsection (5) shall specify:-

(a) in the case where the permit is granted, the fact of such grant and the conditions, if any, imposed under subsection (2); and

(b) in the case of a refusal to grant a permit, the fact of such refusal and the reason for the refusal.

(7) The relevant Authority may renew any permit upon application.

17. Suspension and revocation of permit

(1) The relevant Authority may, at any time, suspend or revoke a permit if:-

(a) the holder of the permit has failed to comply with any provisions of this Act;

(b) the holder of the permit has failed to comply with any conditions attached to the permit;

(c) the holder of the permit had improperly or illegally obtained the permit; or

(d) it is necessary for national interest, national security or non-proliferation purposes, and shall notify the holder of the permit within thirty days by a notice in writing that the permit has been suspended or revoked.

(2) A suspension or revocation under subsection (1) shall remain in force until the holder of the permit has taken measures to the satisfaction of the relevant Authority to remove the reasons for such suspension or revocation.

(3) For the purpose of paragraph (1) (d), the determination of what amounts to national interest and national security shall be made by the Minister and such determination shall be final and binding upon all persons and shall not be challenged, appealed against, reviewed, quashed or questioned in any court.

18. Unauthorized use of permit

(1) No person who is granted a permit under this Act shall allow it to be used by any other person.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than three years or with a fine of not less than three million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of five million ringgit.

19. Registration of brokers

(1) An application for registration to carry out brokering of strategic items referred to in section 11 shall be made to the relevant Authority in accordance with the regulations made under this Act.

(2) An application under this section may be withdrawn at any time before it is granted or refused.

(3) The relevant Authority may, at any time after the receipt of an application under this section and before the application is determined, by a written notice, require the applicant to provide any additional documents or information to the relevant Authority within the period specified in the notice.

(4) If the additional documents or information required under subsection (3) are not provided by the applicant within the period specified in the notice or any extended period granted by the relevant Authority, the application shall be deemed to be withdrawn and shall not be further proceeded with, but without affecting the right of the applicant to make a fresh application.

(5) The relevant Authority may, after considering the application for registration and any additional documents or information provided under subsection (3) and being satisfied that all the requirements have been fulfilled, register the applicant or refuse registration.

(6) Registration under this section shall be valid for a period of one year and shall be renewable upon application.

(7) The relevant Authority may impose such conditions as it considers appropriate in granting the registration.

(8) The conditions imposed upon the registration may at any time be varied or amended by the relevant Authority provided that the registered broker is given a reasonable opportunity of being heard.

(9) The decision of the relevant Authority under this section shall be communicated to the applicant by written notice as soon as practicable.

(10) The written notice by the relevant Authority under subsection (9) shall specify:-

(a) in the case where the registration is granted, the fact of such registration and the conditions, if any, imposed under subsection (7); and

(b) in the case of a refusal of registration, the fact of such refusal and the reason for the refusal.

(11) The relevant Authority may, at any time, suspend or revoke a registration if:-

(a) the registered broker has failed to comply with any provisions of this Act;

(b) the registered broker has failed to comply with any conditions attached to the registration;

(c) the registered broker had improperly or illegally obtained the registration; or

(d) it is necessary for national interest, national security or non-proliferation purposes,

and shall notify the registered broker within thirty days by a notice in writing that the registration has been suspended or revoked.

(12) A suspension or revocation under subsection (11) shall remain in force until the registered broker has taken measures to the satisfaction of the relevant Authority to remove the reasons for such suspension or revocation.

(13) For the purpose of paragraph (11)(d), the determination of what amounts to national interest and national security shall be made by the Minister and such determination shall be final and binding upon all persons and shall not be challenged, appealed against, reviewed, quashed or questioned in any court.

20. Disqualification for offences

Any court before which a person is convicted of any offence under this Act in connection with the export, transhipment or bringing in transit of strategic items or unlisted items or the brokering of strategic items may order that:-

(a) such person to be disqualified from holding or obtaining a permit under this Act or from being registered as a broker under this Act for life or for such period as the court considers appropriate; and

(b) particulars of the conviction and of any disqualification to which the convicted person has become subject shall be notified to the Controller and shall be endorsed on any permit or registration held by the offender:

Provided that, if the court considers appropriate, any disqualification imposed under this section may be limited to the export, transhipment, bringing in transit or brokering of the same class or description of strategic items or unlisted items, as the case may be, as the strategic items or unlisted items in respect of which the offence was committed.

21. Suspension of permit or registration upon disqualification

(1) Where a person who is disqualified by virtue of a conviction or order under this Act is the holder of a permit or a registered broker, as the case may be, such permit or registration shall be suspended as long as the disqualification continues in force.

(2) A permit or registration suspended by virtue of this section shall during the time of suspension be of no effect.

(3) If any person who under this section is disqualified from holding or obtaining a permit applies for or obtains a permit while he is so disqualified, or if any such person while he is so disqualified exports, tranships or brings in transit any strategic items or unlisted items, or if the disqualification is limited to the export, transhipment or bringing in transit of a particular class or description of strategic items or unlisted items, exports, tranships or brings in transit any strategic items or unlisted items of that class or description, that person commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit.

(4) If any person who under this section is disqualified from holding or obtaining registration as a broker applies for or obtains such registration while he is so disqualified, or if any such person while he is so disqualified carries out any act of brokering of any strategic items, or if the disqualification is limited to the brokering of a particular class or description of strategic items, carries out an act of brokering of any strategic items of that class or description, that person commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than ten years or with a fine of not less than ten million ringgit or with both, and in the case of a body corporate, be punished with a minimum fine of twenty million ringgit.

(5) A permit or registration obtained by such person disqualified as aforesaid shall be of no effect.

22. Application to remove disqualification

(1) A person who by virtue of a conviction or order under this Act is disqualified from holding or obtaining a permit or registration may, at any time after the expiration of three years from the date of the conviction or order, and from time to time (not less than three months from the date of his last application made under this section) apply to the court before which he was convicted or by which the order was made to remove the disqualification.

(2) On an application being made under subsection (1), the court may, having regard to the character of the applicant, his conduct subsequent to the conviction or order, the nature of the offence and any other circumstances, either by order remove the disqualification from such date as the court may specify in the order or reject the application.

(3) On an application being made under subsection (1), the court shall have regard to any representations that may be made by the Controller or any relevant Authority.

23. Endorsement on permit

(1) An order that the particulars of any conviction or of any disqualification to which the convicted person has become subject are to be endorsed on any permit or registration held by the offender shall, whether the offender is at the time a permit or registration holder or not, operate as an order that any permit or registration he may then hold or may subsequently obtain shall be so endorsed until he becomes entitled under this section to have a permit or registration issued to him free from any endorsement.

(2) If any person whose permit or registration has been ordered to be endorsed applies for a permit or registration without giving particulars of the order, he commits an offence and shall, on conviction, be punished with a fine not exceeding one million ringgit or with imprisonment for a term not exceeding two years or with both, and in the case of a body corporate, be punished with a minimum fine of two million ringgit, and any permit or registration so obtained shall be of no effect.

(3) Where a court orders particulars to be endorsed on a permit or registration held by any person, or where, by a conviction or order of a court, a person is disqualified from holding or obtaining a permit or registration, the court shall send notice of the conviction or order to the Controller and order the person to surrender the permit or registration to the Controller for the necessary endorsement.

(4) Where pursuant to a notice of the court referred to in subsection (3), the particulars to be endorsed on the permit or registration are included in the register maintained by the Controller under this Act, the endorsement shall be deemed to have been effected.

24. Maintenance of documents and register

(1) A person who is granted a permit or registered as a broker under this Act shall in relation to the strategic items or restricted activities:-

(a) maintain a register in such form as may be prescribed; and

(b) keep all documents for such period as may be prescribed.

(2) The register shall:-

(a) be kept solely for the purpose of entering such records and information as may be prescribed;

(b) be kept up to date and in good order and condition; and

(c) be kept for such period as may be prescribed.

(3) The person referred to in subsection (1) shall make the register available for inspection as and when required by an authorized officer.

(4) A person who contravenes subsection (1), (2) or (3) commits an offence and shall, on conviction, be punished with a fine not exceeding one million ringgit or with imprisonment for a term not exceeding two years or with both, and in the case of a body corporate, be punished with a minimum fine of two million ringgit.

25. Registers

(1) The Controller shall keep and maintain a register of permit holders and registered brokers.

(2) The registers shall be available to the public for inspection subject to such conditions as the Controller considers appropriate.

(3) A copy or extract of any entry in the registers duly certified by the Controller shall be given to any person requiring the copy or extract upon payment of the prescribed fee.

(4) The registers shall be conclusive evidence if any question arises as to whether any person holds a valid permit or is a registered broker under this Act.

PART V

ENFORCEMENT

26. Application of Act for enforcement

Without prejudice to the generality of section 3 and the application of the related laws, for the purpose of strategic items, unlisted items and restricted activities regulated under this Act, the enforcement powers provided under this Part shall be available to the authorized officers.

27. Production of authority card

Every authorized officer shall declare his office and shall on demand produce to the person against whom he is acting his authority card.

28. Powers of authorized officers

(1) Without prejudice to the powers of the authorized officers under any other written law, including the related laws, an authorized officer shall have the following powers for the purpose of enforcement of this Act:

(a) to receive and consider any report of the commission of an offence under this Act;

(b) to stop, enter, board, inspect and search any place, premises, structure or conveyance and to detain any conveyance;

(c) to recall any conveyance that has departed from any port or place in Malaysia and to detain such conveyance;

(d) to exercise the right of hot pursuit;

(e) to demand the production of any permit, record, certificate or other document and to inspect, make copies of or take extracts from such permit, record, certificate or other document;

(f) to investigate any offence under this Act;

(g) to examine and seize any strategic items or unlisted items together with any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data relating to any offence under this Act;

(h) to arrest any person that he has reason to believe has committed or is attempting to commit an offence under this Act; and

(i) to expel any conveyance which he has reason to believe to be involved in a restricted activity or acting against national interest or national security.

(2) Notwithstanding subsection (1), no conveyance shall be stopped, entered, boarded, searched, inspected or detained within the area of the territorial sea if the passage of the conveyance within the territorial sea is an innocent passage.

(3) For the purpose of subsection (2), the passage of a conveyance is an innocent passage if and so long as the passage of the conveyance is not prejudicial to the peace, good order or national security of Malaysia.

(4) Notwithstanding any written law, for the purposes of subsection (3), the following activities shall be considered to be prejudicial to the peace, good order and national security:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of Malaysia or any act which in any manner is a violation of the principles of international law;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the national security or defence of Malaysia;

(d) any act of propaganda aimed at affecting the peace, national security or defence of Malaysia;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or health laws of Malaysia;

(h) any act of pollution;

(i) any fishing activities;

(j) the carrying out of unauthorized research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of Malaysia; and

(l) any other activity not having a direct bearing on passage.

29. Powers of investigation

(1) An authorized officer shall have all the powers necessary to carry out an inspection and to investigate the commission of any offence under this Act.

(2) Without prejudice to the generality of subsection (1), for the purpose of the investigation of any offence under this Act, an authorized officer shall have all the powers which the authorized officer may exercise under any written law and the Criminal Procedure Code [Act 593].

30. Search and seizure without warrant

For the purposes of this Act, where an authorized officer has reasonable grounds for believing that by reason of the delay in obtaining a search warrant 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, without warrant, enter any place, premises or conveyance and seize any strategic items or unlisted items, or any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data.

31. Access to places or premises

(1) An authorized officer shall for the purposes of this Act at all times have access to any place or premises.

(2) Where any authorized officer enters upon any place or premises in accordance with the provisions of this section, then:-

(a) he may require any person therein to produce any books, accounts or other documents, including computerized data, or other record, whether in print or electronic format, or items which such person is required to keep under the provisions of this Act;

(b) he may examine any books, accounts or other documents, including computerized data, or other record, whether in print or electronic format, facility, apparatus, equipment, device or item and make copies of or take extracts from any such books, accounts, documents or records;

(c) he may seize and detain any books, accounts or other documents, including computerized data, or other record, whether in print or electronic format, facility, apparatus, equipment, device or item which contains or is reasonably suspected to contain information as to any offence suspected to have been committed under this Act;

(d) he may require any person therein or his employees to answer questions relating to:-

(i) any book, data, document or other record, or item;

(ii) any entry in any book, data, document or other record; or

(iii) any items;

(e) he may require any container, envelope or other receptacle in any such place or premises to be opened;

(f) he may at the risk and expense of any person therein open and examine any package, or any items or materials, in any such place or premises.

(3) If, by reason of its nature, size or amount, it is not practicable to remove any items, books, accounts or other documents, including computerized data, or other record, whether in print or electronic format, seized under this section, the seizing officer shall, by any means, seal such items, books, accounts or other documents, including computerized data, or other record in the place or premises or container in which it is found.

(4) Where the authorized officer acting under the provisions of this Act is unable to obtain free access to any place or premises or to any container in that place or premises, he may, at any time, enter such place or premises and open such container in such manner, if necessary by force, as he may think necessary.

(5) Where, on the entry upon any place or premises under the provisions of this Act, any strategic items or unlisted items are found in relation to which any offence has been committed, then such strategic items or unlisted items shall be liable to forfeiture.

32. Access to computerized data

(1) An authorized officer conducting a search under this Act shall be given access to computerized data whether stored in a computer or otherwise.

(2) In this section, "access" includes being provided with the necessary password, encryption code, decryption code, software or hardware and any other means required to enable comprehension of the computerized data.

33. Power to search conveyances

(1) An authorized officer may:-

(a) board any conveyance;

(b) require the master of a vessel, pilot of an aircraft or person in control of any other conveyance to give such information relating to the conveyance, cargo, stores, crew, passengers or voyage as he may consider necessary;

(c) search all parts of such conveyance for strategic items;

(d) examine all items on board and all items then being loaded or unloaded;

(e) demand all documents which ought to be on board such conveyance; and

(f) require all or any such documents to be brought to him for inspection,

and the master of a vessel, pilot of an aircraft or person in control of any other conveyance refusing to allow such authorized officer to board or search such conveyance, or refusing to give such information or to produce such documents on demand commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than three years or with a fine of not less than one million ringgit or with both.

(2) If any place, box or chest on board such conveyance is locked and the key withheld, the authorized officer may break open any such place, box or chest.

(3) If any items are found concealed on board any conveyance, such items shall be deemed to be strategic items.

34. Use of force

Where force is required to enter any place, premises or conveyance, the authorized officer executing the powers under this Act may use such force as is reasonable in the circumstances.

35. List of items seized

Where any strategic items or unlisted items, and any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data are seized, the authorized 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.

36. Power of arrest

An authorized officer may arrest without warrant any person whom he reasonably believes has committed or is attempting to commit an offence under this Act.

37. Interception of communications

(1) Notwithstanding the provisions of any other written law, the Public Prosecutor may, if he considers that it is likely to contain any information which is relevant for the purpose of any investigation into an offence under this Act relating to strategic items, unlisted items or restricted activities, on the application of an authorized officer, authorize any authorized officer:-

(a) to intercept, detain and open any postal article in the course of transmission by post; or

(b) to intercept, listen to and record any communication transmitted or received by any communications.

(2) When any person is charged with an offence under this Act relating to strategic items, unlisted items or restricted activities, any information obtained by an authorized officer in pursuance of subsection (1), whether before or after such person is charged, shall be admissible at his trial in evidence.

(3) An authorization by the Public Prosecutor under subsection (1) may be given either orally or in writing; but if an oral authorization is given, the Public Prosecutor shall, as soon as practicable, reduce the authorization in writing.

(4) A certificate by the Public Prosecutor stating that the action taken by an authorized officer in pursuance of subsection (1) had been authorized by him under that subsection shall be conclusive evidence that it had been so authorized and such certificate shall be admissible in evidence without proof of signature thereof. 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.

36. Power of arrest

An authorized officer may arrest without warrant any person whom he reasonably believes has committed or is attempting to commit an offence under this Act.

37. Interception of communications

(1) Notwithstanding the provisions of any other written law, the Public Prosecutor may, if he considers that it is likely to contain any information which is relevant for the purpose of any investigation into an offence under this Act relating to strategic items, unlisted items or restricted activities, on the application of an authorized officer, authorize any authorized officer:-

(a) to intercept, detain and open any postal article in the course of transmission by post; or

(b) to intercept, listen to and record any communication transmitted or received by any communications.

(2) When any person is charged with an offence under this Act relating to strategic items, unlisted items or restricted activities, any information obtained by an authorized officer in pursuance of subsection (1), whether before or after such person is charged, shall be admissible at his trial in evidence.

(3) An authorization by the Public Prosecutor under subsection (1) may be given either orally or in writing; but if an oral authorization is given, the Public Prosecutor shall, as soon as practicable, reduce the authorization in writing.

(4) A certificate by the Public Prosecutor stating that the action taken by an authorized officer in pursuance of subsection (1) had been authorized by him under that subsection shall be conclusive evidence that it had been so authorized and such certificate shall be admissible in evidence without proof of signature thereof.

40. Offences with respect to information

(1) A person who submits false or misleading information in any application, report or other document for any purpose under this Act or the related laws commits an offence and shall, on conviction, be punished with a fine not exceeding one million ringgit or with imprisonment for a term not exceeding two years or with both, and in the case of a body corporate, be punished with a minimum fine of two million ringgit.

(2) A person who:-

(a) furnishes or causes to be furnished to an authorized officer any false or misleading particular, information or statement in respect of any matter which such officer requires to be furnished under this Act or the related laws;

(b) refuses to answer or gives a false answer to any question put to him by an authorized officer for the purpose of obtaining any particulars, information or statement required to be given under this Act or the related laws; or

(c) fails or refuses to produce any document as may be required by an authorized officer, commits an offence and shall, on conviction, be punished with a fine not exceeding one million ringgit or with imprisonment for a term not exceeding two years or with both, and in the case of a body corporate, be punished with a minimum fine of two million ringgit.

41. Disposal of seized strategic items and unlisted items

The Controller shall after consultation with the Public Prosecutor, at any time he considers appropriate, order the disposal of the strategic items or unlisted items together with any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data seized subject to the following procedures being complied with:

(a) an inventory specifying the description, markings and other particulars which clearly identifies the items seized has been prepared by an authorized officer;

(b) photographs of the items seized have been taken in the presence of an authorized officer, and the said authorized officer has certified that the photographs are true; and

(c) copies of any record, book, account, document or computerized data seized are duly certified by an authorized officer.

42. Admissibility of evidence

Notwithstanding any other written law, the disposal of any item under section 41 shall not prejudice the trial of any person under this Act provided that the disposal of the item was done in accordance with that section and the court shall admit the inventory, photographs and copies made, as the case may be, of the items seized as representing the items seized.

43. Forfeiture of strategic items and unlisted items when there is no prosecution

(1) Where there is no prosecution or conviction in respect of any strategic items or unlisted items together with any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data seized in the exercise of any power conferred under this Act, such items shall be held for the period of one calendar month from the date of seizure and at the end of that period shall be deemed forfeited, unless a written claim thereto is received within such period.

(2) A person asserting that he is the owner of any strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents, or computerized data seized under this Act and that the strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents, or computerized data are not liable to forfeiture may personally or by his agent authorized in writing by him, give written notice to the authorized officer who made the seizure of his claim.

(3) On receipt of the written claim under subsection (2), the authorized officer shall refer the matter to the Sessions Court for decision.

(4) The Court to which the matter is referred shall issue a summons requiring the person asserting that he is the owner of the strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents, or computerized data and the person from whom they were seized to appear before the court and upon their appearance or default to appear, due service of the summons being proved, the court shall proceed to the examination of the matter, and on proof that an offence under this Act has been committed and that such strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents, or computerized data were the subject matter of or were used in the commission of such offence, shall order that the strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents or computerized data be forfeited or may, in the absence of such proof, order the release of such strategic items, unlisted items, container, package, conveyance, article, records, books, accounts, documents, or computerized data to the person entitled to them.

44. Cost of holding strategic items and unlisted items seized

Where any strategic items or unlisted items, or any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data seized under this Act is held in the custody of the Government pending completion of any proceedings in respect of an offence under this Act, the cost of holding such strategic items, unlisted items, container, package, conveyance, article, record, book, account, document or computerized data in custody shall, in the event of any person being found guilty of an offence, be a debt due to the Government by such person and shall be recoverable accordingly.

45. No costs or damages arising from seizure to be recoverable

No person shall, in any proceedings before any court in respect of any strategic items or unlisted items, or any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data 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.

46. Obstruction of authorized officer

(1) No person shall obstruct, impede or interfere with an authorized officer in the performance of his functions under this Act.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be punished with a fine not exceeding five million ringgit or with imprisonment for a term not exceeding five years or with both.

PART VI

GENERAL

47. Exemption

The Minister may, by regulations, exempt:-

(a) any person or class of persons; or

(b) any activity in respect of any items of a specified nature or description,

from any provisions of this Act, subject to such conditions as may be prescribed.

48. Institution of prosecution

No prosecution for or in relation to any offence under this Act relating to strategic items, unlisted items or restricted activities shall be instituted except by or with the written consent of the Public Prosecutor.

49. Offences by body corporate

Where an offence against any provision of this Act has been committed by a body corporate, any person who at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of any of the affairs of such body corporate, or was assisting in such management, shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge, consent or connivance and that he exercised all due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances.

50. Offences by employee or agent

Where any person would be liable under this Act to any punishment or penalty for any act, omission, neglect or default, such person shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of his or of the employee of such agent, if such act, omission, neglect or default was committed by the person’s employee in the course of his employment, or by the agent when acting on behalf of the person, or by the employee of such agent in the course of his employment by such agent or otherwise on behalf of the agent.

51. Notice for disclosure of information

(1) The Controller or the relevant Authority may send a notice to any person whom the Controller or the relevant Authority believes on reasonable grounds has information or documents relevant to the enforcement of this Act relating to strategic items, unlisted items or restricted activities, requesting the person to provide the information or documents to the Controller or the relevant Authority.

(2) A person who receives a notice referred to in subsection (1) shall provide the requested information and documents to the Controller or the relevant Authority in the prescribed form and within the time specified in the notice.

(3) A person who contravenes subsection (2) commits an offence and shall, on conviction, be punished with a fine not exceeding one million ringgit or with imprisonment for a term not exceeding two years or with both.

52. Information is privileged and confidential

(1) Any information and document obtained pursuant to this Act or by virtue of this Act relating to strategic items, unlisted items or restricted activities are privileged and confidential.

(2) Notwithstanding subsection (1), the information and documents referred to in subsection (1) are not privileged or confidential if they are required to be disclosed or communicated for the purpose of national interest, national security or under any written law.

(3) No person in possession of privileged or confidential information or documents shall knowingly, without the written consent of the person from whom they were obtained, communicate them or allow them to be communicated to any person, or allow any person to have access to them, except for the purpose of the enforcement of this Act.

(4) Notwithstanding any other written laws, no person shall be required, in connection with any legal proceedings, to produce any statement or other record containing privileged or confidential information or documents, or to give evidence relating to them, unless the proceedings relate to the enforcement of this Act.

53. Protection of officers

No action or prosecution shall be brought, instituted or maintained in any court against the Controller, the relevant Authority or an authorized officer for or on account of or in respect of any act ordered or done for the purpose of carrying into effect this Act if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intendedto be served thereby.

54. Protection of Government, etc, from liability

(1) The Government, Controller or relevant Authority, as the case may be, shall not be liable to make good any loss sustained in respect of any strategic items or unlisted items by fire, theft, damage or any other cause while such strategic items or unlisted items are in any customs warehouse or in the lawful custody or control of an authorized officer unless such loss is caused by the wilful neglect, or default of an authorized officer.

(2) No authorized officer shall be liable to make good any loss sustained in respect of any strategic items or unlisted items by fire, theft, damage or other cause while such strategic items or unlisted items are in any customs warehouse or in the lawful custody or control of such authorized officer unless such loss is caused by his wilful neglect or default.

55. Regulations

(1) The Minister may make such regulations as may be necessary or expedient for giving full effect to the provisions of this Act.

(2) Without prejudice to the generality of subsection (1), regulations may be made:-

(a) to prescribe any forms for the purposes of this Act;

(b) to prescribe any information to be furnished for the purposes of this Act;

(c) to prescribe the procedures for the issuance of permits under this Act, including the establishment of different classes of permits for different classes of strategic items;

(d) to prescribe the procedures for the registration of brokers under this Act, including the establishment of different classes of brokers for different classes of strategic items;

(e) to prescribe the forms for end-user statements;

(f) to prescribe the fees to be paid under this Act and the manner for collecting and dealing with such fees;

(g) to prescribe the forms of registers to be kept and maintained by permit holders and registered brokers, including the particulars to be recorded in the registers;

(h) to provide for any matter, including enforcement matters, which under this Act is required or permitted to be prescribed or which is necessary or expedient to be prescribed.

(3) The regulations made under this section or any other subsidiary legislation made under this Act may prescribe for any act or omission in contravention of the regulations or subsidiary legislation to be an offence and may prescribe for penalties of a fine not exceeding one million ringgit or imprisonment for a term not exceeding five years or with both.

56. Amendment of Schedule

The Minister may, by order published in the Gazette, amend the Schedule.

57. Saving and transitional

(1) A person engaged in any activity relating to strategic items or in any restricted activities immediately before the commencement of this Act and intends to continue with that activity on and after such commencement shall, not later than three months from the date of commencement of this Act, apply to the Controller or relevant Authority for a permit or registration, as the case may require, under this Act.

(2) Pending the decision of the Controller or relevant Authority on the application under subsection (1), the applicant shall be deemed to be temporarily authorized to continue his activities under this Act for a period of three months from the date of commencement of this Act and no action shall be taken against him for engaging in such activity without a permit or registration during such period.

(3) Notwithstanding subsection (2), a person authorized under this section shall for the purposes of this Act comply with the requirements, duties and obligations of a permit holder or a registered broker.

(4) Where a permit is issued under section 16 or registration is granted under section 19 by the Controller or relevant Authority, the applicant shall immediately take the necessary action to comply with any conditions imposed on the permit or registration, as the case may require.

(5) Where the permit or registration is refused by the Controller or relevant Authority, the applicant shall cease to be deemed to be authorized under subsection (2) from the date he is notified of the decision of the Controller or relevant Authority.

SCHEDULE

[Section 2]

RELATED LAWS

The written laws related to the regulation of strategic items, unlisted items and restricted activities are as follows:

1. Animals Act 1953 [Act 647]

2. Atomic Energy Licensing Act 1984 [Act 304]

3. Chemical Weapons Convention Act 2005 [Act 641]

4. Customs Act 1967 [Act 235]

5. Pesticides Act 1974 [Act 149]

6. Plant Quarantine Act 1976 [Act 167]

7. Prevention and Control of Infectious Diseases Act 1988 [Act 342]

8. Protection of New Plant Varieties Act 2004 [Act 634]

EXPLANATORY STATEMENT

This Bill makes provision for control over the export, transhipment, transit and brokering of strategic items, including arms and related material, and other activities that will or may facilitate the design, development and production of weapons of mass destruction and their delivery systems and for other matters connected therewith, consistent with Malaysia’s national security and international obligations.

PART I

2. Part I of the Bill contains preliminary matters.

Clause 1 contains the short title and the power of the Minister to appoint a date of coming into operation of the proposed Act.

Clause 2 contains the definitions of certain expressions used in the proposed Act.

Clause 3 provides that the proposed Act is to be read with other written laws and be regarded as an addition to, and not in derogation of, other written laws, including the related laws. However, in the event of conflict or inconsistency between the provisions of the proposed Act and those of any other written laws, the provisions of the proposed Act shall prevail to the extent of such conflict or inconsistency.

Clause 4 provides for extra-territorial application of the proposed Act.

PART II

3. Part II of the Bill provides for the appointment and powers of the Strategic Trade Controller.

Clause 5 provides for the appointment of the Strategic Trade Controller and a Deputy Strategic Trade Controller from among public officers as well as other officers to assist the Controller in the implementation of the proposed Act.

Clause 6 provides for the functions and powers of the Controller.

PART III

4. Part III of the Bill deals with the control of strategic items, unlisted items and restricted activities.

Clause 7 seeks to empower the Minister to prescribe any items as strategic items for the purposes of the proposed Act while clause 8 seeks to empower the Minister to designate restricted end-users for whom special permits will be required and prohibited end-users to whom all export, transhipment or transit of strategic items or unlisted items is to be prohibited.

Clause 9 seeks to prohibit export, transhipment or bringing in transit of strategic items and unlisted items except as provided under the proposed Act. In view of the gravity of the repercussions of misuse of the strategic items and unlisted items for the purpose of restricted activities, commensurate penalties are proposed for each of the offences under the proposed Act

Clause 10 seeks to prohibit any person from providing technical assistance within or outside Malaysia if such technical assistance is intended for use in connection with a restricted activity

Clause 11 seeks to prohibit any person from carrying out an act of brokering of any strategic items unless he is registered under the proposed Act and holds a valid permit for the brokering of such strategic items from the relevant Authority under the related laws.

Clause 12 seeks to require a person dealing with any unlisted item to notify the relevant Authority of his intention to export that item at least thirty days before that export is to be carried out if he is informed by the relevant Authority or otherwise knows or has reason to believe that the unlisted item will or may be used for a restricted activity. The export of such unlisted item will be subject to the approval of the relevant Authority.

PART IV

5. Part IV of the Bill deals with the permits and registration required under the proposed Act.

Clause 13 clarifies the inter-operation of the proposed Act and the existing regulatory regime over strategic items and provides that for the purpose of strategic items, unlisted items and restricted activities that are regulated under the proposed Act, the relevant Authority shall deal with the permits and registration required for such strategic items, unlisted items and restricted activities in accordance with the provisions of the proposed Act.

Clause 14 provides for the application for permits to the relevant Authority. Applications shall be accompanied by, among others, an end-use statement to verify the destination and intended use of the strategic items.

Clause 16 deals with the grant or refusal of permits while clause 17 deals with suspension and revocation thereof.

Clause 18 prohibits the unauthorized use of permits.

Clause 19 deals with the registration of brokers of strategic items.

Clauses 20 to 23 deal with disqualification from holding or obtaining a permit under the proposed Act or from being registered as a broker under the proposed Act as well as suspension of the permit or registration upon conviction for an offence under the proposed Act. During the period of disqualification or suspension, the permit or registration shall be of no effect.

Clause 24 requires permit holders and registered brokers to maintain a register in the prescribed form and to keep documents for the prescribed period.

Clause 25 requires the Controller to keep and maintain a register of permit holders and registered brokers which shall be available to the public for inspection. The registers shall be conclusive evidence if any question arises as to whether any person holds a valid permit or is a registered broker under the proposed Act.

PART V

6. Part V of the Bill contains provisions relating to the enforcement of the proposed Act.

Clause 26 clarifies the inter-operation of the enforcement powers of the authorized officers under the proposed Act and their existing powers under other written laws. For the purpose of strategic items, unlisted items and restricted activities regulated under the proposed Act, the enforcement powers provided under Part V shall be available to the authorized officers.

Clause 27 requires every authorized officer to declare his office and on demand produce his authority card.

Clause 28 provides generally for the powers of the authorized officers under the proposed Act.

Clause 29 seeks to confer powers of investigation on an authorized officer. He is also empowered to carry out search and seizure without warrant under clause 30.

Clause 31 seeks to empower an authorized officer to have access to any place or premises for the purposes of carrying out an investigation under the proposed Act while clause 32 seeks to enable an authorized officer to have access to computerized data

Clause 33 seeks to empower an authorized officer to search conveyances.

Clause 34 provides for the use of reasonable force by an authorized officer in executing his powers under the proposed Act.

Clause 35 seeks to impose a duty on an authorized officer to prepare a list of items seized.

Clause 36 empowers an authorized officer to arrest without warrant any person found committing or attempting to commit an offence under the proposed Act.

Clause 37 provides for the interception of communications by an authorized officer on the authorization of the Public Prosecutor.

Clause 38 seeks to empower the authorized officer to require the attendance of a person acquainted with a case while clause 39 provides for the examination of such person.

Clause 40 seeks to make it an offence to submit false or misleading information in an application, report or other document for any purpose under the proposed Act or the related laws.

Clause 41 seeks to empower the Controller after consultation with the Public Prosecutor, at any time he considers appropriate, to order the disposal of any strategic items or unlisted items together with any container, package, conveyance or other article in which the strategic items or unlisted items are stored, kept or found, record, book, account, document or computerized data seized under the proposed Act once the appropriate measures are taken on inventory and verification of evidence.

Clause 42 provides that the disposal of items under clause 41 shall not prejudice the trial of any person under the proposed Act and the court shall admit the inventory, photographs and other evidence of the items seized as representing the items seized.

Clause 43 seeks to empower the forfeiture of seized items where there is no prosecution or conviction.

Clause 44 seeks to provide that the cost of holding any strategic items or unlisted items and any related container, package, conveyance, article, record, book, account, document or computerized data seized under the proposed Act shall be recoverable as a debt due to the Government from the person from whom it was seized.

Clause 45 seeks to provide that no cost or damages arising from the seizure of any strategic items or unlisted items and any related container, package, conveyance or other article, record, book, account, document or computerized data in the exercise of any powers under the proposed Act shall be recoverable unless the seizure was made without reasonable cause.

Clause 46 seeks to make it an offence to obstruct an authorized officer in the performance of his functions under the proposed Act.

PART VI

7. Part VI of the Bill contains general provisions.

Clause 47 empowers the Minister to grant exemptions.

Clause 48 provides that no prosecution for or in relation to any offence under the proposed Act relating to strategic items, unlisted items or restricted activities shall be instituted except by or with the written consent of the Public Prosecutor.

Clauses 49 and 50 deal with offences committed by bodies corporate and liability for the acts of an employee or agent respectively.

Clause 51 seeks to empower the Controller or the relevant Authority to request any information or documents to be provided to the Controller or the relevant Authority where there is reason to believe that the information or documents are relevant to the enforcement of the proposed Act.

Clause 52 seeks to impose on a person the duty to preserve the confidentiality of information and documents obtained pursuant to the proposed Act.

Clause 53 seeks to provide for the protection of the Controller, the relevant Authority and authorized officers from the institution of legal proceedings in carrying out their duties under the proposed Act.

Clause 54 seeks to provide for the protection of the Government, the Controller, the relevant Authority and authorized officers from liability in relation to any losses sustained in respect of any strategic items or unlisted items while such strategic items or unlisted items are under their lawful custody or control under the proposed Act.

Clause 55 seeks to empower the Minister to make regulations.

Clause 56 seeks to empower the Minister by order published in the Gazette to amend the Schedule.

Clause 57 seeks to provide saving and transitional arrangements for existing activities relating to strategic items and restricted activity.

FINANCIAL IMPLICATIONS

This Bill will involve the Government in extra financial expenditure the amount of which cannot at present be ascertained.