PREVENTION AND CONTROL OF INFECTIOUS DISEASES ACT 1988 - that was the Act of Parliament, who provided the power for Regulations and Orders during the Movement Control Orders(MCOs) when Malaysia faced the Covid-19 pandemic.
Until 11 March 2021, that law is as follows - The fine was not limited, meaning the court could impose any fine depending on the facts and circumstances.
In terms of COMPOUND, the maximum compound permissible was RM1,000. [Of course, when it comes to Compound, it could then be RM50, RM100, RM500 - but the maximum was RM1,000]
24 General penalty
Any person guilty of an offence under this Act for which no specific penalty is provided shall be liable on conviction-
(a) in respect of a first offence, to imprisonment for a term not exceeding two years or to fine or to both;
(b) in respect of a second or subsequent offence, to imprisonment not exceeding five years or to fine or to both;
(c) in respect of a continuing offence, to a further fine not exceeding two hundred ringgit for every day during which such offence continues.
25 Compounding of offencesThe Director General or any public officer authorized for this purpose by him in writing may compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit.
NEW LAW - Then the Act was amended vide EMERGENCY (PREVENTION AND CONTROL OF INFECTIOUS DISEASES) (AMENDMENT) ORDINANCE 2021, which came into force on 11/3/2021.
The Act is amended by substituting for section 24 the following section:
“24. General penalty
Any person who commits an offence under this Act for which no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding seven years or to both.”.
The Act is amended by substituting for section 25 the following section:
“25. Compounding of offences
The Director General or any authorized officer authorized for this purpose by the Director General in writing may, with the consent in writing of the Public Prosecutor, at any time before a charge is being instituted, compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as a compoundable offence by making a written offer to the person reasonably suspected of having committed the offence to compound the offence upon payment to the Director General—
(a) in the case of a person who is an individual, a sum of money not exceeding ten thousand ringgit; or
(b) in the case of a body corporate, a sum of money not exceeding fifty thousand ringgit.”.
Now, an Emergency Ordinance during Emergency is law not approved and passed by Parliament. It is law enacted by the King on the advice of the Prime Minister. Does the King have a choice - No, he does not as 'acting on the advice of the Prime Minister' really means to do as what the PM tells you. If PM advises the King to enact this law or that law, the King really do not have much choice. So, please do not BLAME the King - rather blame the Prime Minister personally when these Emergency Ordinances get enacted.
Must the Prime Minister get the approval of his Cabinet - No, he does not have to. Remember, it is after all the PM who really chooses his Cabinet members...it is the PM's Cabinet at the end of the day. That is also why it is the sitting PM who gets blamed for even failings of his own Cabinet members...
COMPOUND - if an offer of compound is made, and it accepted and paid by the person alleged(reasonably suspected) to have broken the law - then the person is not charged in court, tried, found guilty or convicted. Hence, there is no record of past guilt, and one may not be considered a REPEAT OFFENDER and imposed a higher penalty when he/she/it does it again and again.
How much compound - well, it all depends of the authorities, for one it could be RM50 and another RM10,000 - after all it is an administrative decision not a judicial decision. Factors considered may be arbitrary - a person 'connected' may be offered a lower compound. After all, the law just says 'not exceeding RM10,000'
Government by way of 'POLICY' may say that they will be compounded a fix sum - but that is merely policy not law.
REPEAT OFFENDERS - The old law, before this new amended law by way of an Emergency Ordinance, provided for REPEAT OFFENDERS - the second time, there will be a HIGHER more deterrent penalty. It also provided for 'continuing offenders'...for every day, it was an additional RM200 fine.
Hence, the new EMERGENCY ORDINANCE fails to provide penalties for Repeat Offenders, or for those that continue breaking the law.
SHOULD ALL OFFENCES BE COMPOUNDED?
- the answer is NO - offences that result in death or injury should never be compounded, the suspect must be charged and tried in court.
- For offences that causes a risk of injury/death or even property damage should not be compounded.
- Compounds are OK for minor offences or small offences, that did not cause death, injury or property damage, or caused the risk of injury, sickness or death to a large number of persons. An employer/owner of a workplace where hundreds of workers work or live should never be compounded, for example, - they should be charged and tried. If a worker gets Covid-19 or dies as a result of Covid-19 from a workplace, workers accommodation or workers transport, they should not be offered a compound - but should be charged, tried and convicted in a court? The courts will impose a JUST sentence.
- So many workplace clusters, and so many workers and their families have got Covid-19(and risked death) - how many of these employers have been charged in court, or did they simply get off with paying RM1,000 as a compound.
- The penalty in terms of Covid-19 should also factor in number put at risk - so higher for the employer/owner of workplaces - depending on the number of persons put at risk.
BODY CORPORATE - well the Act has no definition - does it also include partnerships and/or sole proprietors?
RM10,000 compound or RM50,000 fine - is it JUST? For a minimum wage worker earning RM1,200 - it is unjustly excessive, for a rich man earning a lot, even RM1mil per month, it is 'chicken feed'. Notice not how on the highway, you see cars speeding irrespective the legal speed limit - they may be the RICH and for them the compound sum and/or fine is irrelevant.
Time to rethink fines - Maybe we should make it also to be like 10% of the monthly income - rather than a fixed sum which is highly unjust for the poor. {Note, the many who just cannot afford the bail amount, that are languishing in Malaysian prisons - about 20-25% persons in Malaysian prison/detention facilities are not the convicted serving their sentence - but people waiting still for their trial to begin/end}
What kind of Covid-19 offences ought to be compounded?
- Maybe the minor offences of not wearing face mask, practicing social distancing, failure to record name/temperature, etc - but not others. [May be just for the fixing of a fixed compound for this]
BEST OPTION - abolish compounds for Covid-19 related violations - just charge them all in Court. Then the accussed can just PLEAD GUILTY or claim trial. If one pleads guilty, the norm is that the sentence will be reduced by a third by Court. Then, before sentencing the accused can raise MITIGATION points - why the sentence should be lowered..poverty or income also can be considered. The individual who just made one mistake - like not wearing face mask just that time because he could not find/purchase or afford a face mask, or simply forgot, as he quickly jumped from his/her car that one time to speedily buy something not being able to find a parking spot...are all mitigation factors that the court will/may consider before imposition of a just sentence.
As a lawyer, my personal opinion, is that when caught committing an offence, is to NOT accept the Compound offer, and ask to be taken to court. I would trust the Court in handing down a just sentence, after one is found guilty - rather than an officer, who may take irrelevant factors, in the compound offer. The courts will consider all relevant facts and circumstances judiciously because judges are trained to do so...
Now, with higher fines and/or compounds, one must also be concerned with increase corruption - the likelyhood of enforcement officers taking small bribes to not arrest or summon a person increases ...MACC must be more vigilant now.
EMERGENCY ORDINANCE - Covid-19 started in early 2020, and whatever amendments could have been done then when Parliament sat - everyone was aware that the PREVENTION AND CONTROL OF INFECTIOUS DISEASES ACT 1988 needed to be amended - but why was it not then? Was the Prime Minister and the Executive distracted by staying in power - avoiding no confidence motions - ..this is really no excuse for PM Muhyiddin and his then PN government, is there?
The law concerning Elections could also be amended then giving the powers to postpone elections for reasons like pandemics or even natural disasters ...Why was it not done? I believe all our MPs and Senators would not have opposed such amendment to law, including the Federal Constitution.
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