Can the police prosecute violations of the MCO?

My learned friend, Mr. Puthan Perumal, wrote an opinion piece arguing that the police cannot prosecute offences under the Prevention and Control of Infectious Diseases Act 1988 (“the Act”).[1]

His entire article came about because the Defence Minister allegedly stated, in a press conference on 14th April 2020, that the police would be conducting prosecution of offences under the Act.

The Star also reported the Defence Minister as having said:

“So, from tomorrow, police will arrest those who violate the MCO and charge them in court instead of issuing compound notices.”[2]

However, an examination of the press conference in question revealed that the Defence Minister merely said that violators of the Movement Control Order will be remanded and brought to court.

His exact words were, “Mulai besok, sesiapa yang ditahan akan direman dan dihadapkan ke Mahkamah.”[3]

With all due respect to my learned friend, the Defence Minister never mentioned anything about the police conducting prosecution under the Act.

Generally speaking, the police are legally empowered to conduct prosecution.

Section 20(3)(c) of the Police Act 1967 provides that:

“Without prejudice to the generality of the foregoing provisions or any other law, it shall be the duty of a police officer to carry out the purposes mentioned in subsection 3(3); and he may take such lawful measures and do such lawful acts as may be necessary in connection therewith, including―

…

(c) conducting prosecutions;”[4]

Section 377(b)(ii) of the Criminal Procedure Code states:

“Every criminal prosecution before any court and every inquiry before a Magistrate shall, subject to the following sections, be conducted—

…

(b) subject to the control and direction of the Public Prosecutor, by the following persons who are authorized in writing by the Public Prosecutor:

…

(2) a police officer not below the rank of Inspector;”[5]

However, in practice, criminal prosecutions are for the most part conducted by Deputy Public Prosecutors from the Attorney General’s Chambers.

Under the Act, however, Mr. Perumal is correct that only “authorized officers” are allowed to conduct prosecution of offences.[6]

Having said that, the Health Minister is empowered under the Act to appoint any suitable person to be an authorized officer for the purposes of the Act.[7]

The Health Minister may, if he chooses to, exercise his discretion to appoint police officers to be authorized officers for the purposes of conducting prosecution of offences under the Act. This would be completely intra vires the Act.

This exercise of discretion, however, is not exempt from being challenged by way of judicial review.

[1] Puthan Perumal, “Police cannot prosecute under Act 342 — Puthan Perumal.” MalayMail.com. Malay Mail. Accessed April 16, 2020. https://www.malaymail.com/news/what-you-think/2020/04/15/police-cannot-prosecute-under-act-342-puthan-perumal/1856944; see also Puthan Perumal, “Police can’t prosecute MCO flouters.” TheMalaysianInsight.com. The Malaysian Insight. Accessed April 16, 2020. https://www.themalaysianinsight.com/s/238037

[2] Mazwin Nik Anis and Hanis Zainal, “No more compounds, MCO violators will be arrested and charged in court says Ismail Sabri.” TheStar.com.my. The Star. Accessed April 16, 2020. https://www.thestar.com.my/news/nation/2020/04/14/no-more-compounds-mco-violators-will-be-arrested-and-charged-in-court-says-ismail-sabri

[3] see 00:02:35 – 00:02:43 of https://www.facebook.com/MajlisKeselamatanNegara/videos/1057814204598047/

[4] “Police Act 1967.” AGC.gov.my. Official Portal Attorney General’s Chambers of Malaysia. Accessed April 16, 2020. https://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20344%20-%20Police%20Act%201967.pdf

[5] “Criminal Procedure Code.” AGC.gov.my. Official Portal Attorney General’s Chambers of Malaysia. Accessed April 16, 2020. https://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20593%20-%20Criminal%20Procedure%20Code.pdf

[6] Section 23 of the Prevention and Control of Infectious Diseases Act 1988

[7] Section 3(1) of the Prevention and Control of Infectious Diseases Act 1988