International trade in endangered species act 2008 act 686




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INTERNATIONAL TRADE IN ENDANGERED SPECIES ACT 2008

ACT 686


Date of Royal Assent: ...5 February 2008
Date of publication in the Gazette:....14 February 2008
In force from:. 28 December 2009 [P.U. (B) 569/2009]
Part I

PRELIMINARY




  1.  Short title and commencement.
  2.  Act to be read with other laws.
  3.  Interpretation.

Part II

AUTHORITIES




  4.  Lead Management Authority.
  5.  Functions of the Lead Management Authority.
  6.  Management Authority.
  7.  Functions and powers of the Management Authority.
  8.  Lead Scientific Authority and Scientific Authority.
  9.  Functions of the Scientific Authority.

Part III

TRADE OF SCHEDULED SPECIES




  10.  Import and export.
  11.  Re-export and introduction from the sea.
  12.  Possession of scheduled species.
  13.  Scheduled species in transit.
  14.  Breeding or propagation of scheduled species.
  15.  Power to require scheduled species to be marked, etc..

Part IV

PERMIT, CERTIFICATE AND REGISTRATION




  16.  Permit, certificate and registration.
  17.  Cancellation of permit, certificate or registration.
  18.  Captive breeding or artificial propagation.

Part V

POWER RELATING TO ENFORCEMENT, SEIZURE, ARREST, ETC.




  19.  Enforcement officers.
  20.  Power of investigation.
  21.  Authority card.
  22.  Power of arrest.
  23.  Search and seizure with warrant.
  24.  Search and seizure without warrant.
  25.  Power to enter premises.
  26.  Access to computerized data.
  27.  Seizure of thing, etc..
  28.  Power to stop, search and seize conveyances.
  29.  Notice of seizure.
  30.  Temporary return of conveyance, etc..
  31.  Power to require attendance of persons acquainted with case.
  32.  Examination of persons acquainted with case.
  33.  Admissibility of statements in evidence.
  34.  Forfeiture of seized scheduled species, etc..
  35.  Property in forfeited scheduled species, etc..
  36.  Release of seized scheduled species, etc..
  37.  Cost of holding seized scheduled species, etc..
  38.  No costs or damages arising from seizure to be recoverable.
  39.  Additional powers.
  40.  Offence to assault or obstruct enforcement officer.

Part VI

GENERAL



  41.  Payment into fund.
  42.  Compounding of offences.
  43.  Institution of prosecution.
  44.  False declaration.
  45.  Offence committed by body corporate.
  46.  Offence by partner, agent or servant.
  47.  Abetments and attempt.
  48.  Public servant.
  49.  Protection against suit and legal proceedings.
  50.  Protection of informers.
  51.  Rewards.
  52.  Power to exempt.
  53.  Power to amend Schedules.
  54.  Power to make regulations.
  55.  Prevention of anomalies.
First Schedule  [Subsection 6(1)]   - MANAGEMENT AUTHORITIES
Second Schedule  [Section 19]   - ENFORCEMENT OFFICERS
Third Schedule  [Section 3]   - SCHEDULED SPECIES

An Act to implement the Convention on International Trade in Endangered Species of Wild Fauna and Flora and to provide for other matters connected therewith.

WHEREAS the Convention on International Trade in Endangered Species of Wild Fauna and Flora was signed at Washington D.C. on 3 March 1973:

AND WHEREAS Malaysia deposited her instrument of accession on 20 October 1977 and therefore in accordance with Article XXII of the Convention, the said Convention entered into force as far as Malaysia is concerned on 18 January 1978:

NOW, THEREFORE, IT IS ENACTED by the Parliament of Malaysia as follows:



Part I

PRELIMINARY

1.  Short title and commencement.

(1) This Act may be cited as the International Trade in Endangered Species Act 2008.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

2.  Act to be read with other laws.

(1) This Act shall be read together with any other written law relating to import and export, conservation of plants, forests and animals and trade in scheduled species, and the provisions of this Act shall be in addition to, and not in derogation of, the provisions of such other written laws.

(2) I n the event of any inconsistencies between the provisions of this Act and any of the other written laws referred to in subsection (1), the provisions of this Act shall prevail.

3.  Interpretation.

I n this Act, unless the context otherwise requires-

"this Act"  includes any subsidiary legislation made under this Act;

"readily recognizable part or derivative of an animal" means any substantially complete or part or derivative of an animal, in natural form, stuffed, chilled, preserved, dried, processed or otherwise treated or prepared which may or may not be contained in preparations, and includes-



(a) meat, bones, hide, skin, leather, tusk, horn, antler, gland, feathers, hair, teeth, claws, shell, scales and eggs;

(b) tissue, blood, fat, oil, milk, venom, saliva, urine and faeces;

(c) any chemical compound derived from anything mentioned in paragraph (a) or (b); and

(d) any thing which is claimed by any person, or which appears from an accompanying document, the packaging, a label or mark or from any other circumstances, to contain a part or derivative of an animal;

"readily recognizable part or derivative of a plant" means any substantially complete or part, tissue or derivative of a plant, in natural form, preserved, dried, processed or otherwise treated or prepared which may or may not be contained in preparations, and includes-



(a) seed, stem, leaf, bark, root, log, flower, fruit or pod;

(b) any chemical compound derived from such part, tissue or extract; and

(c) any thing which is claimed by any person, or which appears from an accompanying document, the packaging, a label or mark or from any other circumstances, to contain a

part or derivative of a plant;

"in transit" has the same meaning assigned to it by the Customs Act 1967 [Act 235];

"bred in captivity" refers only to offspring, including eggs, born or otherwise produced in a controlled environment of parents that mated or otherwise transmitted their gametes in a controlled environment;

"artificially propagated" in reference to any-

(a) plant, means the plant is grown under controlled conditions from seeds, cuttings, divisions, callus tissues or other tissues, spores or other propagules that either are exempt r have been derived from cultivated parental stock;

and


(b) animal, means the animal is propagated under controlled environment by way of cuttings and divisions;

"prescribed" means prescribed by regulations made under this Act;

"export" means to take or cause to be taken out of Malaysia by land, sea, inland waters or air any scheduled species, but does not include re-export;

"re-export" means the export of any scheduled species that has previously been imported;

"animal" means any member of the animal kingdom, and includes-

(a) any mammal (other than man), bird, reptile, amphibian, fish, mollusc, arthropod, or other vertebrate or invertebrate, whether alive or dead, and the egg, young or immature form thereof; and

(b) any readily recognizable part or derivative of an animal;

"import" means bring or cause to be brought into Malaysia by land, sea, inland waters or air any scheduled species other than any scheduled species in transit in Malaysia;

"controlled conditions" means a non-natural environment that is intensively manipulated by human intervention for the purpose of plant production and may include but is not limited to tillage, fertilization, weed and pest control, irrigation, or nursery operations such as potting, bedding or protection from weather;

"Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and Flora;

"quota" means a prescribed number or quantity of any scheduled species that can be exported or otherwise used over a specific period of time;

"introduction from the sea" means transportation into Malaysia of any scheduled species which was taken from the marine environment not under the jurisdiction of any country, including the air space above the sea, sea-bed and subsoil beneath the sea;

"advertise" in relation to scheduled species, means to describe, make reference to or allude in any way, by any means or in any form, to that scheduled species-

(a) whether directly or indirectly;

(b) whether orally, in writing, diagrammatically, pictorially, by the use of symbols or photographs, or in any combination thereof; or

(c) whether by the common name or the scientific name of that scheduled species or otherwise;

"Minister" means the Minister charged with the responsibility for natural resources and environment;

"enforcement officer" means-

(a) an enforcement officer specified in the first column of the Second Schedule;

(b) any police officer not below the rank of Inspector, including an Inspector on probation; or

(c) any Officer of customs as defined in section 2 of the Customs Act 1967;

"owner" includes any person for the time being in charge of any scheduled species or any person for the time being in occupation of any premises;

"registration" means the registration allowed by a Management Authority under subsection 16(2);

"conveyance" means any vehicle, vessel, ship, aircraft or any other mode of transport whether by air, sea or land;

"certificate" means a certificate issued by a Management Authority under subsection 16(2);

"permit" means a permit issued by a Management Authority under subsection 16(2);

"controlled environment" includes an environment that is manipulated for the purpose of producing specimen of a particular species of an animal that has boundaries designed to prevent the animal, eggs or gametes of the animal from entering or leaving that particular environment, and the general characteristics of which may include but are not limited to artificial housing, waste removal, health care, protection from predators, and artificially supplied food;

"Management Authority" means the Management Authority specified in the First Schedule;

"Scientific Authority" means a person or body appointed by the Lead Scientific Authority under subsection 8(2);

"premises" includes any hut, shed, structure, platform, house, building, conveyance and land whether or not enclosed or built upon;

"Rescue Centre" means a premises designated by a Management Authority to look after the welfare of any living scheduled species, particularly those that have been confiscated;

"species" includes subspecies, or geographically separate population of the species or subspecies of a scheduled species;

"scheduled species" means any animal or plant, including any readily recognizable part or derivative of the animal or plant specified in the Third Schedule;

"cultivated parental stock" means the ensemble of a plant grown under controlled conditions that are used for reproduction, in a manner not detrimental to the survival of the species of plant in the wild or natural habitat and maintained in sufficient quantities for propagation so as to minimize or eliminate the need for augmentation from the wild or natural habitat, with such augmentation occurring only as an exception and limited to the amount necessary to maintain the vigour and productivity of the parent material;

"plant" means any member of the plant kingdom, whether live or dead, and any readily recognizable part or derivative of a plant.

Part II

AUTHORITIES

4.  Lead Management Authority.

The Ministry responsible for natural resources and environment shall be the Lead Management Authority for the purposes of this Act.



5.  Functions of the Lead Management Authority.

The functions of the Lead Management Authority shall

be-

(a) to coordinate the implementation and enforcement of the

provisions of this Act by the Management Authorities

and Scientific Authorities;

(b) to communicate with all other countries and the secretariat

of the Convention on all matters under this Act;



(c) to cause national obligations under the Convention to be

fulfilled;



(d) to create awareness and to provide training, education and

information relating to the Convention;



(e) to do such other things as it deems fit to enable it to

perform its functions effectively or which are incidental

to the performance of its functions.

6.  Management Authority.

(1) The Management Authority specified in the first column

of the First Schedule shall have jurisdiction over the plant, animal

or any combination of plant and animal including the readily

recognizable part or derivative of the plant or animal in the

region appearing in the corresponding second and third column

respectively.

(2) The Minister may by order published in the Gazette amend

the First Schedule.

(3) Notwithstanding subsection (2), the Minister shall obtain

the consent of the State Authority of the State of Sabah or

Sarawak before making any amendment to the First Schedule,

where the Management Authority is located in the State of Sabah

or Sarawak.



7.  Functions and powers of the Management Authority.

(1) The functions of the Management Authority shall be-



(a) to maintain records of international trade in scheduled species

and prepare annual and biennial reports concerning such

trade, and to submit the reports to the Lead Management

Authority on or before such date as the Lead Management

Authority may determine;

(b) to establish Rescue Centres;

(c) to inform the Lead Management Authority within a

reasonable period the offences committed under this Act;

and

(d) to do such other things as it deems fit to enable it to

perform its functions effectively or which are incidental

to the performance of its functions.

(2) A Management Authority shall have the power to issue a

permit or certificate, or allow registration under this Act.

(3) A Management Authority may consult and seek the advice

of a Scientific Authority in the implementation of its powers and

functions under this Act.



8.  Lead Scientific Authority and Scientific Authority.

(1) The Lead Management Authority shall be the Lead

Scientific Authority.

(2) The Lead Scientific Authority may appoint such number of

Scientific Authorities as may be necessary to provide advice on

international trade in scheduled species.



9.  Functions of the Scientific Authority.

The Scientific Authority shall provide advice to the Lead

Management Authority and Management Authority on international

trade in scheduled species on-



(a) the impact of the trade on the survival of the scheduled

species;


(b) the quotas for the export of the scheduled species;

(c) the appropriate care of any live scheduled species to be

imported or to be kept in Malaysia;



(d) the measures to be taken when the harvest of the scheduled

species threatens its survival;



(e) the appropriate treatment of any seized or confiscated

scheduled species;



(f) the method of disposal of any seized or confiscated

scheduled species; and



(g) any other matters as it deems fit to enable it to perform

its functions effectively or which are incidental to the

performance of its functions.

Part III

TRADE OF SCHEDULED SPECIES

10.  Import and export.

Any person who imports or exports any scheduled species

without a permit commits an offence and shall, on conviction,

be liable-



(a) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(b) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such

fine shall not exceed in the aggregate of two million

ringgit.


11.  Re-export and introduction from the sea.

Any person who re-exports or introduces from the sea any

scheduled species without a certificate commits an offence and

shall, on conviction, be liable-



(a) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(b) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such

fine shall not exceed in the aggregate of two million

ringgit.


12.  Possession of scheduled species.

Any person who-



(a) has in his possession or under his control;

(b) sells, offers or exposes or advertises for sale; or

(c) displays to the public,

any scheduled species which has been imported or introduced from

the sea in contravention of section 10 or 11 commits an offence

and shall, on conviction, be liable-



(aa) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(bb) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such

fine shall not exceed in the aggregate of two million

ringgit.


13.  Scheduled species in transit.

(1) Every scheduled species in transit in Malaysia shall be

accompanied by-

(a) a valid export or re-export permit, licence, certificate or

written permission, in accordance with the Convention,

issued by the competent authority of the country of

export or re-export, as the case may be, of the scheduled

species; and

(b) where required by the country of import or final destination

of the scheduled species, a valid import permit, licence,

certificate or written permission, in accordance with the

Convention, issued by the competent authority of that

country or destination.

(2) Any owner, importer, exporter or re-exporter who contravenes

subsection (1) commits an offence and shall, on conviction, be

liable-


(a) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(b) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such fine shall

not exceed in the aggregate of two million ringgit.

14.  Breeding or propagation of scheduled species.

(1) Any person who produces captive bred animal or

artificially propagated plant or animal of any scheduled species

for commercial trade purposes without being registered with a

Management Authority commits an offence and shall, on conviction,

be liable-



(a) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(b) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such fine shall

not exceed in the aggregate of two million ringgit.

(2) Any person who-



(a) has in his possession or under his control;

(b) sells, offers or exposes or advertises for sale; or

(c) displays to the public,

any scheduled species which has been produced in contravention

of subsection (1) commits an offence and shall, on conviction,

be liable-



(aa) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit for each animal, plant, or

readily recognizable part or derivative of the animal or

plant, of the scheduled species but such fine shall not

exceed in the aggregate of one million ringgit, or to

imprisonment for a term not exceeding seven years or

to both;

(bb) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit for each animal,

plant, or readily recognizable part or derivative of the

animal or plant, of the scheduled species but such

fine shall not exceed in the aggregate of two million

ringgit.


15.  Power to require scheduled species to be marked, etc..

(1) A Management Authority may require any owner, importer,

exporter or re-exporter of scheduled species to brand, label or

otherwise mark such scheduled species to the satisfaction of the

Management Authority.

(2) Notwithstanding subsection (1), the Management Authority

may brand, label or mark any such scheduled species.

(3) Any person who contravenes any requirement of the

Management Authority under subsection (1) commits an offence

and shall, on conviction, be liable-



(a) where such person is an individual, to a fine not exceeding

fifty thousand ringgit or to imprisonment for a term not

exceeding three years or to both;

(b) where such person is a body corporate, to a fine not

exceeding one hundred thousand ringgit.

(4) Any person who alters, counterfeits, defaces, destroys,

erases, removes or in any manner tampers with any brand, label

or mark referred to in subsection (1) or (2) without the prior

approval of the Management Authority commits an offence and

shall, on conviction, be liable-

(a) where such person is an individual, to a fine not exceeding

one hundred thousand ringgit or to imprisonment for a

term not exceeding seven years or to both;

(b) where such person is a body corporate, to a fine not

exceeding two hundred thousand ringgit.

(5) I n this section, a reference to the labeling or marking of

scheduled species includes a reference to the following:



(a) in the case of a plant-

(i) the labeling or marking of a container in which the

plant is kept or in which the plant is growing;

or

(ii) the placement of a label or tag on the plant; and



(b) in the case of an animal-

(i) the implantation of a scannable device in the

animal;

(ii) the placement of a band on any part of the



animal;

(iii) the placement (whether by piercing or otherwise)

of a tag, tattoo or ring on any part of the animal;

or

(iv) the labeling or marking of a container in which



the animal is kept.

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