The
Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021 (“
Amendment Ordinance”) was gazetted on 25 February 2021 and will come into force on
11 March 2021. The Amendment Ordinance amends the Prevention and Control of Infectious Diseases Act 1988 (“
PCIDA”) in the following manner -
Order for wearing a tracking device
The Amendment Ordinance provides that an authorised person may order any person who is infected or whom he has reason to believe to be infected, or any contact of that person, to wear a tracking device such as a wristband or any device provided by the authorised officer. It is an offence to destroy, damage, lose or tamper with the tracking device.
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Directions of Director General
The Director General of Health (“
Director General”) may issue any general or specific directions to any person or group of persons to take measures for the purpose of preventing and controlling any infectious disease. It is an offence to contravene any directions issued by the Director General.
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Enforcement
The Amendment Ordinance introduces a new Part IVA which,
inter alia, provides that:
Offences by body corporate4
The Amendment Ordinance introduces a new corporate liability provision in the PCIDA. Where an offence is committed by a body corporate, a person who at the time of the commission of the offence was a director, chief executive officer, chief operating officer, manager, secretary or 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 the affairs of the body corporate or was assisting in such management, may be charged severally or jointly with the body corporate.
The
due diligence defence is available to such person if, having regard to the nature of his functions in that capacity and to all circumstances, he proves that the offence was committed without his knowledge, consent or connivance, and that he has taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
A person would also be liable to the same penalty for such act, omission, neglect or default committed by his employees in the course of employment, by his agent or by an employee of his agent in the course of employment or acting on behalf of the principal.
General penalty
The Amendment Ordinance replaces the general penalty provision in section 24 of the PCIDA. The replacement provision provides that a person who commits an offence under the PCIDA for which no penalty is expressly provided shall upon conviction, be liable to a fine not exceeding RM100,000 or to a term of imprisonment not exceeding seven years or to both.
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Compounding of offences
The amount of fine payable to the Director General for compounding of offences will be increased from RM1,000 to a maximum of RM10,000 and RM50,000 for individuals and bodies corporate respectively.
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The Amendment Ordinance also amends section 31 of the PCIDA to allow regulations made under the PCIDA to prescribe penalties of a fine not exceeding RM50,000 or imprisonment for a term not exceeding six months or to both.
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Comments
The Amendment Ordinance is noteworthy from a historical perspective as it is the first piece of emergency legislation that amends an existing law under the emergency that was proclaimed in Malaysia on 11 January 2021.
From a practical perspective, the amendments made to the PCIDA under the Amendment Ordinance are significant in two respects. First, the powers of enforcement are greatly enhanced by making offences under the PCIDA seizable and by introducing corporate liability and liability for acts of agents and their employees. Second, the penalties that can be imposed for offences under the PCIDA and regulations under the PCIDA have been greatly increased. These measures are likely to result in a significant increase in the level of compliance with the movement control measures imposed by the Government.
Alert prepared by Tan Wei Liang (Associate) and Tai Kean Lynn (Associate) of Skrine.