(A) THE MOVEMENT CONTROL ORDER
1. Under which statutory provision is the Movement Control Order issued?
The Movement Control Order refers to the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 ("PCID Order") which was issued by Malaysian Prime Minister, Tan Sri Muhyiddin Yassin on 16.3.2020 under the Prevention and Control of Infectious Diseases Act 1988 ("PCID Act 1988"), after being satisfied that all States and Federal Territories in Malaysia are threatened with an epidemic of an infectious disease, namely Covid-19, a life-threatening microbial infection specified in Part 1 of the First Schedule of PCID Act 1988.
The PCID Order was published in the Government Gazette P.U. (A) 87 dated 17.3.2020.
The PCID Act 1988 is an Act to amend and consolidate the law relating to the prevention and control of infectious diseases and to provide for other matters connected therewith.
By way of the PCID Order, the Prime Minister declared the States and Federal Territories in Malaysia to be infected local areas pursuant to Section 11 of PCID Act 1988. Those States and Federal Territories in Malaysia are namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor, Terengganu and the Federal Territories of Kuala Lumpur, Putrajaya and Labuan ("Infected Local Areas").
The PCID Order is effective from 18.3.2020 to 31.3.2020.
Later on 26.3.2020, the Prime Minister extended the MCO from 1.4.2020 to 14.4.2020 vide the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) Order 2020 ("PCID Extension Order").
The PCID Extension Order was published in the Government Gazette P.U. (A) 98 dated 26.3.2020.
2. What are the rules and regulations which are implemented following the enforcement of the PCID Order?
The rules and regulations which are implemented following the enforcement of the PCID Order are stipulated in the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) Regulations 2020 ("PCID Regulations 1").
In exercising the powers conferred under Section 11(2) of PCID Act 1988, the Prime Minister prescribed measures to be taken to control or prevent the spread of Covid-19 within or from the Infected Local Areas through the PCID Regulations 1.
The PCID Regulations 1 was published in the Federal Government Gazette P.U. (A) 91 dated 18.3.2020.
The PCID Regulations 1 came into effect on 18.3.2020 and remained effective until 31.3.2020.
3. Since the PCID Order has been extended, has the effective period of the PCID Regulations 1 been extended as well?
No, the effective period of the PCID Regulations 1 was not extended. Instead, similar to the PCID Regulation 1 which was effective from 18.3.2020 to 31.3.2020, the Prime Minister exercised his powers under Section 11(2) of PCID Act 1988 to prescribe new measures to control or prevent the spread of Covid-19 within or from the Infected Local Areas vide the Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No. 2) Regulations 2020 ("PCID Regulations 2").
The PCID Regulations 2 was published in the Government Gazette P.U. (A) 103 dated 31.3.2020, which can be downloaded here.
The PCID Regulations 2 is effective from 1.4.2020 until 14.4.2020.
(The PCID Regulations 1 and PCID Regulations 2 are collectively referred to as "PCID Regulations".)
4. What are the restrictions imposed by the PCID Regulations?
Essentially, the PCID Regulations:
a) control movements and gatherings;
b) require those returning from overseas to undergo health examination upon arrival in Malaysia; and
c) control the operating hours of business premises which provide essential services; and
d) stipulate the penalties imposed for contravening any of the provisions in the PCID Regulations.
5. How do the PCID Regulations control movements and gatherings?
Essentially, the PCID Regulations restrict movements among the general public to only when necessary to control and prevent the spread of Covid-19 within Malaysia.
However, PCID Regulations 2 imposes stricter restrictions on movements and gatherings as compared to PCID Regulations 1.
PCID Regulations 1 combined the general restrictions on movements and gatherings in one provision. In contrast, PCID Regulations 2 separated the regulations to control "movement" and "gathering" respectively, with each having more elaborated and tighter restrictions.
PCID Regulations 1 (18.3.2020 – 31.3.2020):
5.1 The PCID Regulations 1 controls movements and gatherings as follows:
a) You are not allowed to travel from one place to another within Malaysia unless it falls under one of the following specified purposes:
- To perform any official duty;
- To make a journey to and from any premises referred to in regulation 5 (the regulation which defines and limits operating hours of "essential services");
- To purchase, supply or deliver food or daily necessities;
- To seek healthcare or medical services; or
- Any other special purposes as may be permitted by the Director General.
b) You are not allowed to gather (or to be involved in any gatherings) within Malaysia whether for religious, sports, recreational, social or cultural purposes. However, you are allowed to attend a funeral ceremony as long as the number of persons attending are kept to the minimum. The National Security Council has further clarified on 17.3.2020, that for Muslims, you may hold prayers (without tahlil) with close family members and mosque khairiah (committee).
[Note that, "minimum" is not defined in the Regulations. However, based on overseas jurisdictions such as New South Wales (Australia) and Ontario (Canada) which impose similar restrictions on gatherings, funeral attendees of up to 10 people at any one time would most likely be allowed. However, it is strongly advised that attendees of funeral service practise the Social Distancing Guidelines issued by the Ministry of Health here.]
c) You are not allowed to travel from one place to another place within Malaysia except with the prior written permission of a police officer in charge of a police station.
PCID Regulations 2 (1.4.2020 – 14.4.2020):
PCID Regulations 2 separates the regulations to control "movement" and "gathering" respectively, with each having more elaborated and tighter restrictions.
5.2 Control of movement: PCID Regulations 2 restricts your movement further as you are now only allowed to travel under certain conditions.
a) You are not allowed to move from one place to another place within Malaysia unless it is for the following purposes:
- To purchase food, daily necessities, medicine or dietary supplement;
- To supply or deliver food, daily necessities, medicine or dietary supplement;
- To seek healthcare or medical services;
- To perform any official duty; or
- To perform any duty in relation to any essential services.
b) If you are travelling to (a) purchase food, daily necessities, medicine or dietary supplement, or (b) seek healthcare or medical services, your movement is only limited to:
- A place within a radius of not more than 10km from your residence, or
- A place nearest to your residence.
c) You are not allowed to be accompanied by any other person if you are travelling for (a) and (b) above, unless it is reasonably necessary.
d) If you are travelling to (c) perform any official duty, or (d) perform your duty in relation to any essential services, you must produce an authorisation letter from your employer if the police officer (or any authorised officer on duty) so requires; and
e) If you are an owner/operator/person responsible for a business of selling food, you are only allowed to operate by way of drive-through, takeaway or delivery. It is expressly stated that this condition is imposed to control the movement of those who are buying food, and the Director General may issue any further directions, if necessary.]
5.3 Further, do note that under regulation 5 of PCID Regulations 2, you are allowed to travel within Malaysia if you have "a special and particular reason". However, you will first need to obtain a written permission of the police officer in charge of the police station nearest to your residence.
5.4 Control of gatherings: The earlier PCID Regulations 1 on the control of gatherings remains unchanged.
You are not allowed to gather (or to be involved in any gatherings) within Malaysia whether for religious, sports, recreational, social or cultural purposes. However, you are allowed to attend a funeral ceremony as long as the number of persons attending are kept to the minimum.
[Again, note that, "minimum" is not defined in the Regulations. However, based on overseas jurisdictions such as New South Wales (Australia) and Ontario (Canada) which impose similar restrictions on gatherings, funeral attendees of up to 10 people at any one time would most likely be allowed. However, it is strongly advised that attendees of funeral service practise the Social Distancing Guidelines issued by the Ministry of Health here.]
6. What does "essential services" mean?
The Regulations have defined "essential services" as the services specified in the Schedule to the Regulations.
It is pertinent to note that PCID Regulations 2 reduced the number of "essential services" from 22 services to 10 services as listed below:
a) Food
b) Water
c) Energy
d) Communication and internet
e) Security and defence
f) Solid waste and public cleansing management and sewerage
g) Healthcare and medical including dietary supplement
h) Banking and finance
I) E-commerce
j) Logistics confined to the provision of essential services (i.e. any of the above)
The table below provides a comparison between the "essential services" listed in PCID Regulations 1 and PCID Regulations 2:
| PCID Regulations 1 (Effective from 18.3.2020 to 31.3.2020) "Essential Services" |
PCID Regulations 2 (Effective from 1.4.2020 to 14.4.2020) "Essential Services" |
|
On 2.4.2020, the Schedule was amended vide Gazette No. P.U. (A) 112 dated 2.4.2020 to include:
|
It is pertinent to note that the PCID Regulations 2 expressly lists "logistics confined to the provision of the essential services listed" as an essential service. Hence, you are allowed to travel from one place to another place within Malaysia if you have to perform a duty in relation to such services.
There is also a new provision in PCID Regulations 2 which allows you to travel from one place to another place within Malaysia if you have to carry out any works on any infrastructure related to any of the essential services above. However, there are conditions to this:
a) If such services are not carried out, it will affect the provision of the essential services above; and
b) If such services are not carried out, it will affect the safety and stability of the infrastructure.
For instance, transport vehicles which carry essential items, or construction works which, if not continued, would endanger the public or the environment such as slope repair work, lift maintenance or repair or any other emergency work.
Again, PCID Regulations 2 expressly states that if you have to travel to carry out the infrastructure works above, you are required to provide the necessary proof if the police officer (or any authorised officer) so requests.
There are no guidelines as to what amounts to "necessary proof". However, similar to the regulations for other essential services, a letter from your employer or a letter which explains/shows the relationship between your services and any of the essential services above is likely to suffice.
7. The National Security Council of the Prime Minister's Department issued a press statement on 18.3.2020 in which it had listed certain essential services (listed in Appendix A) and non-essential services (listed in Appendix B) which are allowed to operate during the Movement Control Order, in addition to the essential services listed in the Schedule to PCID Regulations 1. Are these services still allowed to operate under PCID Regulations 2?
The National Security Council has not issued any similar press statements after the implementation of PCID Regulations 2. Therefore, to err on the side of caution, it is prudent to strictly follow the restrictions and conditions under the PCID Regulations 2 (Refer to Q&A 6 above).
8. Who is the Director General?
The Director General refers to the Director General of Health, and our current Director General of Health (as at the date of this article) is Datuk Dr Noor Hisham Abdullah.
9. Who are the authorised officers?
According to the press statement issued by the National Security Council of the Prime Minister Department, the Royal Police of Malaysia (Polis DiRaja Malaysia ("PDRM")) and the Volunteers Department of Malaysia of the Ministry of Home Affairs ("RELA") are appointed as the authorised officers pursuant to Section 3 of the PDIDA 1988.
10. Are there additional control/restrictions imposed by the different States?
Different States have imposed further control/restrictions in line within the implementation of PCID Regulations 2.
For instance, the Selangor State Government has further imposed the following control/restrictions:
a) There will be more police roadblocks set up along the highways in Selangor;
b) There is a "one-person-one-car" policy, by which only one person is allowed to move from one place to another place within Malaysia to buy food and necessities, or seek medical healthcare unless it is reasonably necessary to have another person in the car;
c) The operating hours of all business premises selling essential items, such as supermarkets, sundry shops, petrol stations, stalls, restaurants and food delivery services are from 8am to 8am only;
d) E-hailing and taxi services are only allowed to operate from 6am to 10pm;
e) Public transportation are only allowed to operate between 6am – 10am, and 5pm – 10pm;
f) Wholesale markets are only allowed to operate from 6am to 4pm; and
g) Public markets are only allowed to operate from 8am to 4pm.
The Senior Minister (Security Cluster) and Defence Minister, Datuk Seri Ismail Sabri Yaakob further directed, during a press conference on 30.3.2020, that:
a) All recreational and social activities are not allowed, whether they are carried out in public or gated areas. However, he explained that the disabled, including individuals with autism are allowed to be outdoors for therapy purposes as advised by specialists. However, this must not be carried out in groups;
b) Activities at places of worship are not allowed, including Muslim Friday prayers.
The Defence Minister also encouraged commercial vehicles which transport essential goods such as food and medicine to operate from 7pm to 7am, and clarified that this is not a directive as some would involve long-distance journeys.
11. What happens if I return from overseas? What are the regulations and requirements concerning those returning from overseas upon arrival in Malaysia?
If you are a Malaysian citizen, a permanent resident, or an expatriate returning from overseas (note that anyone else is denied entry into Malaysia during the enforcement of the MCO), you are required under the PCID Regulations 2 to undergo health examination upon arrival in Malaysia before proceeding for immigration clearance at any point of entry. The Senior Minister (Security Cluster) Datuk Seri Ismail Sabri Yaakob clarified during a press conference on 2.4.2020 that the points of entry include land, air, and sea routes at all border checkpoints including Sabah and Sarawak. You will also be required to comply with any order issued by an authorised officer, i.e. PDRM or RELA.
Since the implementation of PCID Regulations on 18.3.2020 until 2.4.2020, those who travelled abroad were advised to self-quarantine themselves for 14-days upon arrival in Malaysia.
Effective 3.4.2020, if you are returning from abroad and upon your arrival at the airport in Malaysia, you will be brought to a quarantine centre to be quarantined and assessed for 14 days.
The Malaysian Defence Minister, Datuk Seri Ismail Sabri Yaakob announced during a press conference that the new requirement would apply to everyone travelling from abroad, regardless of whether the flight was chartered or commercial. Transportation such as bus transfers will be arranged for those travelling abroad to the quarantine centres upon their arrivals at the airport.
12. Where are the quarantine centres?
The Minister of Health published several Gazettes to declare a list of places as quarantine stations in Malaysia for Covid-19 pursuant to Section 2 of the PCID Act 1988. Those places include public universities, community colleges, technical institutes, and stadiums.
The Gazettes can be found here:
- Declaration of Quarantine Stations 2020 vide Gazette No. P.U. (B) 171/2020 dated 16.3.2020;
- Declaration of Quarantine Stations (No. 2) 2020 vide Gazette P.U. (B) 179/2020 dated 21.3.2020;
- Declaration of Quarantine Stations (No. 3) 2020 vide Gazette P.U. (B) 186/2020 dated 26.3.2020;
- Declaration of Quarantine Stations (No. 4) 2020 vide Gazette P.U. (B) 187/2020 dated 27.3.2020;
- Declaration of Quarantine Stations (No. 5) 2020 vide Gazette P.U. (B) 189/2020 dated 31.3.2020;
- Declaration of Quarantine Stations (No. 6) 2020 vide Gazette P.U. (B) 190/2020 dated 4.4.2020; and
- Declaration of Quarantine Stations (No. 7) 2020 vide Gazette P.U. (B) 191/2020 dated 4.4.2020.
Several prominent hotels and lodging facilities throughout the country have also been declared as quarantine stations, including the Palace of the Golden Horses in Seri Kembangan, Tanjung Rhu Resort in Langkawi, Grand Millennium Kuala Lumpur, Hilton Kuala Lumpur and Dorsett Grand Subang in Subang Jaya.
As at 5.4.2020, according to the Senior Minister (Security Cluster) and Defence Minister, Datuk Seri Ismail Sabri Yaakob, there are a total of 551 premises which have been gazetted as quarantine centres, which can accommodate up to a total of 40,000 individuals at one time.
On 7.4.2020, the Senior Minister (Security Cluster) clarified during a press statement that RM150 per day, including lodging, food and beverage, is allocated for each person who is required to be quarantined upon arrival in Malaysia. Laundry expenses are to be borne by those under quarantine. The Chief Executive Officer of the Malaysian Association of Hotels also clarified that laundry services for occupants in quarantine centres are provided by concessionaires appointed by the Health Ministry.
You can choose to be quarantined in any one of the 45 hotels (including four-star and five-star hotels) as quarantine centres but you will have to bear the extra costs if it exceeds the allocation of RM150 per day by the Government. The standard operating procedures at all the quarantine centres, including hotels would apply. You are not allowed to leave your rooms and no visitors are allowed to visit you during the 14-day period.
In Selangor, as at 2.4.2020, according to the Selangor police spokesman, Ismail Muslim during a press conference at the Selangor police headquarters, there are a total of 48 quarantine centres. 5 of the 48 quarantine centres are currently in use, and they are (a) the Health Department Training Centre in Sungai Buloh, (b) Institute Latihan Islam Malaysia in Bangi, (c) Judicial and Legal Training Institute (ILKAP) in Bangi, (d) Akademi Latihan Bomba in Hulu Selangor, and (e) Madrasah Nabawiyah in Kajang.
(B) CONSEQUENCES OF BREACHING THE PCID REGULATIONS?
13. What is my general duty as a public person under the PCID Regulations?
You have to comply with the request by any authorised officers, i.e. PDRM or RELA, for any information relating to prevention and control of Covid-19 from you.
This may include informing, explaining or showing proof of where you are going if you are stopped at a police roadblock, or giving information regarding your travel history or attendance at the tabligh assembly at the Sri Petaling Mosque.
On 4.4.2020, the Director-General of Health Datuk Dr Noor Hisham Abdullah once again, during a press conference, urged those who attended the tabligh assembly or individuals who have close contact with the attendees to report to or contact a nearby Ministry of Health district office.
14. What happens if I contravene any of the provisions in the PCID Regulations, e.g. by breaching any of the PCID Regulations, obstruct or impede an authorised officer in the execution of his duty or disobey any lawful order issued by any authorised officer?
You commit an offence if you contravene or breach any of the provisions stated in the PCID Regulations.
Offences by an individual person:
If you commit the offence as an individual person, upon conviction, you will be liable to a fine not exceeding RM1,000 or to imprisonment for a term not exceeding 6 months, or to both.
- On 23.3.2020, the Malay Mail reported that a 33-year old mechanic was charged at the Sungai Siput Magistrates' Court for obstructing a public servant from discharging his duty in enforcing the Movement Control Order. The mechanic pleaded guilty and was sentenced to a fine of RM5,000, default of which will lead to 10-months imprisonment. On the same day in Kuala Lumpur, a 31-year old and a 37-year old man were sentenced to 2-months imprisonment for criminal intimidation against a police officer on duty.
- On 26.3.2020, the Star reported that seven men were sentenced to a fine of RM1,000 each, with three months of community service for playing football and jogging in a field in Pulau Tikus, Penang.
- On 27.3.2020, the Star reported that a 35-year old man was charged and sentenced to a fine of RM1,000, default of which will lead to 4-months imprisonment for violating the Movement Control Order. He was also fined RM1,500, default of which will lead to 4-months imprisonment for failing to produce his identity card when stopped by authorities at the same place and time.
- On 26.3.2020, the Star reported that the Sarawak police in Miri arrested 28 people, 24 men and 4 women who breached the Movement Control Order. 26 people were granted police bail pending Court charges, whereas two were detained for ramming a police roadblock in Batu Niah.
- On 28.3.2020, the News Straits Times reported that a 32-year old wireman was charged under regulation 7 of the Regulations, and Sections 307 and 186 of the Penal Code for attempted murder and for obstructing a public servant from discharging his duty of examining his vehicle. The 32-year old rammed into a traffic police officer who was manning a police roadblock in Kuala Lumpur. The police officer suffered a broken rib and injuries to his mouth and leg. The 32-year old pleaded guilty and was sentenced to imprisonment of 12 months from the date of arrest.
- On 30.3.2020, the Star reported that a 61-year old cardiologist was charged for breaching the Movement Control Order under the PCID Regulations and for obstructing a public servant from discharging his duty in enforcing the Movement Control Order under Section 186 of the Penal Code in Georgetown, Penang. According to the news report, he defied the order by the Penang Island City Council (MBPP) enforcement officers to stop jogging and return home. He pleaded not guilty and claimed trial to both charges. He was released on bail for the first charge with the bail sum of RM8,000 and was ordered to surrender his passport to the Court and to report to the police station once a month until the next Mention date on 6.9.2020. He was also released on bail for the second charge with the bail sum of RM5,000.
- On 1.4.2020, Berita Harian reported that three men, a 22-year old, a 21-year old and a 24-year old were sentenced at the Marang Magistrates' Court to a fine of RM1,000 each, default of which will lead to 3-months imprisonment, for breaching the Movement Control Order by moving from one place to another place within Malaysia.
- On 2.4.2020, the Malay Mail reported that a 19-year old was sentenced to 4-days imprisonment by the Tawau Magistrates' Court after pleading guilty for defying the Movement Control Order. He was found outside of his house at 8.45pm, in violation of the Movement Control Order under the PCID Regulations. During mitigation, he informed the Court that he left his house to look for scrap metal to sell for money to buy food. The Magistrate advised that he should have sought assistance from state elected representatives or the village head to buy essential items if need be during the enforcement of the PCID Regulations.
Offences by a company:
Under PCID Regulations 1, if you commit an offence in the capacity of a director, manager, secretary or other similar officers of the company (or was purporting to act in such capacity) or if you are responsible for (or assisting in) the management of any of the affairs of the company,
a) You may be charged severally or jointly in the same proceedings with the company; and
b) If the company is found guilty of the offence, you are also deemed to be guilty of that offence unless you prove that:
(i) the offence was committed without your knowledge, consent, or connivance; and
(ii) you took all reasonable precautions and had exercised due diligence to prevent the company from committing the offence.
However, PCID Regulations 1 are superseded by PCID Regulations 2 which have amongst others, extended the regulations to "limited liability partnerships, firms, societies or other body of persons".
PCID Regulations 2 states that, if a person, who at the time of the commission of the offence was a director, compliance officer, partner, manager, secretary or other similar officers of a company, limited liability partnership, firm, society or other body of persons (or was purporting to act in such capacity) or was in any manner or to any extent responsible for the management of any of the affairs (or was assisting in the management) of a company, limited liability partnership, firm, society or other body of persons,
a) You may be charged severally or jointly in the same proceedings with the company, limited liability partnerships, firms, societies or other body of persons; and
b) If the company, limited liability partnerships, firms, societies or other body of persons is found guilty of the offence, you are also deemed to be guilty of that offence and will be liable to the same punishment or penalty as an individual unless, having regard to the nature of your functions in that capacity and to all circumstances, you prove that:
(i) the offence was committed without your knowledge; and
(ii) the offence was committed without your consent or connivance and that you have taken all reasonable precautions and had exercised due diligence to prevent the commission of the offence.
- On 19.3.2020, the Star reported that a construction firm in Kuala Lumpur was issued with a compound of RM50,000 for not adhering to the Movement Control Order. The compound was issued under Section 70 (13) of the Road, Drainage and Building Act 1974 (Act 133). The construction firm continued carrying out works despite having been given the notice to stop work for two weeks.[Do note that DBKL enforcement officers are directed to monitor and inspect construction sites in Kuala Lumpur.]
15. Does the general penalty under Section 24 the PCID Act 1988 still apply?
Since the PCID Regulations have specified the penalty for breaching the PCID Regulations, the general penalty under Section 24 of the PCID Act 1988 will not apply. In the usual circumstances where no penalty has been stipulated by any orders or regulations made under the PCID Act 1988, the general penalty as follows would apply:
a) In respect of a first offence, to imprisonment for a term of not more than 2 years or to fine or to both;
b) In respect of a second or subsequent offence, to imprisonment for a term of not more than 5 years or to fine or to both;
c) In respect of a continuing offence, to a further fine of not more than RM200 for every day during which such offence continues.
16. Are the offences compoundable?
Under Section 25 of the PCID Act, the Director General or any public officer authorised may compound any offence or any regulations made under the PCID Act 1988 by collecting from the offender a sum of money not more than RM1,000.
Offences which are compoundable under the PCID Act 1988 are stipulated in the First Schedule of the Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993. It now includes all offences under the PCID Regulations.
An offer to compound may be made at any time after the offence is committed, but before any prosecution for it has been instituted. The offer to compound must be made in a particular form, which will look like this:
17. What happens if I am offered a compound?
The Form will specify the time for you to pay the amount offered. If the amount specified in the offer is not paid within the time specified in the offer, prosecution for the offence may be instituted at any time thereafter without further notice given to you.
If you accept the offer and pay the amount specified in the Form, you will be issued an official receipt. Keep the official receipt with you because if the offence you have committed has been compounded, you cannot be prosecuted for that offence thereafter.
On 8.4.2020, the Bukit Aman Internal Security and Public Order Department Director, Datuk Seri Acryl Sani Abdullah Sani announced during a press conference that effective 8.4.2020, offenders who violate the PCID Regulations will be issued with a compound of RM1,000. The offenders are required to pay the compound within two weeks at the Healthy Ministry's offices, failing which they will be brought to be charged in Court. He further clarified that offenders will be brought to police stations or district police headquarters to be issued with the compound.
18. Apart from being charged or arrested for committing an offence under the PCID Regulations, what other offences can I be charged or arrested for, and what are the penalties?
You may be charged for voluntarily obstructing a public servant, i.e. a police officer from carrying out his public duties under Section 186 of the Penal Code.
Upon conviction, you may be punished with imprisonment for a term which may extend to 2 years, or with fine which may extend to RM10,000, or with both.
On 2.4.2020, according to the Selangor police spokesman, Ismail Muslim during a press conference at the Selangor police headquarters, between 18.3.2020 and 1.4.2020, the Selangor police had received 600 MCO-related reports. Of the 600 reports, investigations were carried out for 350 reports resulting in the arrest of 727 people for (a) defying the PCID Regulations, or (b) obstructing a public servant from carrying out his duties.
Similarly, during a press conference on 2.4.2020, the Malaysia Defence Minister, Datuk Seri Ismail Sabri Yaakob informed the public that there have been 4,189 arrests and 1,449 charges in Court for violating the PCID Regulations or obstructing authorities from carrying out their duties. A handful has also been sentenced to imprisonment and fine, with some sentenced to up to 8 months jail term.
19. What happens if I am arrested for committing an offence under the PCID Regulations or Section 186 of the Penal Code?
As explained in Q&A16 and Q&A17 above, if you are arrested under the PCID Regulations, the police may offer you a compound.
Otherwise, you may be arrested and brought to a police station, after which the police may detain you for 24 hours for investigation purposes.
We have published an FAQ on Arrest, Remand and Bail in Malaysia which can be found here.
20. Can the police detain me for more than 24 hours?
Yes, the police can apply to the Magistrates' Court to detain you further for investigation purposes.
After the first 24-hours, the police can apply to extend your detention period twice and up to 7 days in total.
a) The police can apply to extend your detention period to a maximum of 4 days; and
b) If by the end of the 4-day period the police wish to detain you for further investigation, the police can apply to the Magistrates' Court again to extend your detention period up to a maximum period of 3 days.
We have published an FAQ on Arrest, Remand and Bail in Malaysia which can be found here.
21. What happens once my detention period ends (i.e. the remand order expires)?
At the end of your detention period, the police will have to release you or bring you before the Court for you to be charged in Court.
If you have informed your relative or lawyer of your arrest, they should have the details of your arrest and remand (such as the police station where you are detained and the name and contact details of the Investigating Officer (IO)).
Your relative or lawyer should follow-up closely with the IO so that in the event you are charged for an offence in Court, your relative or lawyer will know which Court to attend. Your lawyer will apply for bail, and your relative should be prepared to post bail.
We have published an FAQ on Arrest, Remand and Bail in Malaysia which can be found here.
22. What happens when I am brought to Court to be charged for an offence?
Firstly, the charge will be read to you in a language that you understand. If necessary, tell the Court interpreter or the Judge that you do not understand the language used and ask for it to be read in a language that you can understand.
You will then be asked whether you wish to plead "guilty" or "not guilty". In Bahasa Malaysia, you will usually hear: "Kamu mengaku salah atau tidak?".
a) If you plead guilty, the Judge will record the conviction against you and proceed to sentencing. During sentencing, you will be allowed to mitigate for a lower sentence.
b) If you plead not guilty, you will be entitled to a trial for the Court to determine whether or not you are guilty of the offence charged against you based on the evidence produced in Court. Once you enter your plea of "not guilty" and claim trial, you will be detained until the next Mention (or your next appearance in Court) unless the Court grants you bail.
We have published an FAQ on Arrest, Remand and Bail in Malaysia which can be found here.
23. Am I entitled to be released on Court bail when charged with committing an offence under the PCID Regulations or Section 186 of the Penal Code (i.e. obstructing a public servant such as a police officer from carrying out his public duties)?
Yes, you are entitled to be released on Court bail.
Under the Criminal Procedure Code, both the offences are bailable offences, which means you are entitled, and the Court cannot deny you bail.
24. Where are remand proceedings conducted during the Covid-19 pandemic?
Remand proceedings are usually held in Court, but in some instances have been held in certain police stations, especially during weekends, and hospitals if suspects are injured.
On 1.4.2020, following the request by the Deputy Inspector-General of Police, Datuk Mazlan Mansor, the Malaysia Chief Justice, Tan Sri Tengku Maimun Tuan Mat allowed remand proceedings to be conducted at police stations instead of in Courts to minimise or avoid the transmission of Covid-19. A circular was issued by the Chief Registrar of the Federal Court of Malaysia to this effect.
25. Can I be sentenced to imprisonment upon being convicted for committing an offence under the PCID Regulations or Section 186 of the Penal Code during the Covid-19 pandemic?
Yes. The penalties stipulated under regulation 11 of the PCID Regulations 2 (refer to Q&A 14 above) and Section 186 of the Penal Code (refer to Q&A18 above) apply.
On 2.4.2020, the Director General of Malaysia Prisons, Dato' Sri Haji Zulkifli Bin Omar had proposed to the Federal Court of Malaysia to sentence those who have breached the PCID Regulations or Section 186 of the Penal Code to carry out Social Works Orders under the Offenders Compulsory Attendance Act 1954 such as community service, instead of a prison sentence.
The proposal aims to prevent and control the spread of Covid-19 within prisons in Malaysia or alleviate risk the spread of Covid-19 to existing prisoners and prison officers, as it is difficult to practise "social distancing" in prisons. According to the Director General of Malaysia Prisons, 378 people have been sentenced to imprisonment for breaching the PCID Regulations as at 2.4.2020.
The Chief Registrar's Office of the Federal Court of Malaysia confirmed receiving the proposal from the Director General of the Malaysia Prisons. However, no directions have been issued by the Courts with regard to this matter to date.
Similarly, on 5.4.2020, the Malaysia Chief Justice Tan Sri Tengku Maimun Tuan Mat also urged judicial officers to consider the risk of the spread of Covid-19 and overcrowding in prisons when sentencing offenders to prison during the Covid-19 pandemic.
26. When should I contact a lawyer?
We generally advise that you consult a lawyer as early as possible, such as, as soon as the police contact you to have an interview with you at the police station, or to give your statement for investigation purposes. Certainly, you or your relatives should consult a lawyer upon arrest. It is very crucial that you know your rights and what to say or do. It is equally important to know what not to say or do. Having the right advice at the right time can have a very significant impact on the outcome of the investigations, charge and trial.
Originally published 9 April, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
