PART V
CARE AND PROTECTION OF TRAFFICKED PERSONS
Non-application
41a. This Part shall not apply to a smuggled migrant unless such smuggled migrant is a trafficked person.
Place of refuge
42. (1) The Minister may, by notification in the Gazette, declare any house, building or place, or any part thereof, to be a place of refuge for the care and protection of trafficked persons and may, in like manner, declare that such place of refuge ceases to be a place of refuge.
(2) The Minister may, from time to time, direct the separation of different categories of trafficked persons, among others, according to age and gender either at the same place of refuge or at different places of refuge.
Appointment of Protection Officers
43. (1) The Minister, after consultation with the Minister charged with the responsibility for women, family and community development may, by notification in the Gazette, appoint such number of Social Welfare Officers or any other public officers to exercise the powers and perform the duties of a Protection Officer under this Act subject to any condition as may be specified in the notification.
(2) The Protection Officer shall—
(a) have control over and responsibility for the care and protection of the trafficked person at the place of refuge;
(b) carry out an enquiry and cause to be prepared a report of the trafficked person as required under this Act;
(c) have the power to supervise the trafficked person upon order by the Magistrate or direction by the Minister;
and
(d) have such other powers, duties and functions as the Minister may prescribe.
Taking a person into temporary custody
44. (1) An enforcement officer may, on reasonable suspicion that any person who is found or rescued is a trafficked person, take that person into temporary custody and produce him before a Magistrate within twenty-four hours, exclusive of the time necessary for the journey to the Magistrate’s Court, for the purpose of obtaining an interim protection order.
(2) The Magistrate shall make an interim protection order for the person to be placed at a place of refuge for a period of fourteen days for the purpose of carrying out an investigation and enquiry under section 51.
(3) The enforcement officer shall, upon obtaining the order issued under subsection (2), surrender the trafficked person to a Protection Officer to place that trafficked person at the place of refuge specified in the order.
Person in temporary custody in need of medical examination or treatment
45. (1) Where an enforcement officer who takes a person into temporary custody under subsection 44(1) is of the opinion that the person is in need of medical examination or treatment, the enforcement officer may, instead of taking that person before a Magistrate, present him to a medical officer.
(2) If at the time of being taken into temporary custody, the person is a patient in a hospital, the enforcement officer may leave that person in the hospital.
Medical examination and treatment
46. A medical officer before whom a person is presented under section 45—
(a) shall conduct or cause to be conducted an examination of the person;
(b) may in examining the person and if so authorised by an enforcement officer, administer or cause to be administered such procedures and tests as may be necessary to diagnose the person’s condition; or
(c) may provide or cause to be provided such treatment as he considers necessary as a result of the diagnosis.
Authorization for hospitalization
47. Where a person taken into temporary custody under subsection 44(1) is a child and the medical officer who examines him is of the opinion that his hospitalization is necessary for the purpose of medical care or treatment, an enforcement officer may authorise that person to be hospitalised.
Control over hospitalised person
48. Where the person taken into temporary custody under subsection 44(1) is hospitalised, the enforcement officer shall have control over, and responsibility for, the security and protection of that person.
Steps to be taken after medical examination or treatment
49. (1) A person who is taken into temporary custody under subsection 44(1) and is medically examined under section 46 shall be produced before a Magistrate within twenty-four hours—
(a) of the completion of such examination or treatment; or
(b) if the person is hospitalised, on his discharge from the hospital.
(2) If it is not possible to bring that person before a Magistrate within the time specified in subsection (1), that person shall be placed in a place of refuge until such time as he can be brought before a Magistrate.
No liability incurred for giving authorization
50. (1) If a person is examined or treated under this Part—
(a) the enforcement officer who authorises such examination or treatment;
(b) the medical officer who examines or treats the person;
and
(c) all persons acting in aid of the medical officer,
shall not incur any liability at law by reason only that a person is examined or treated pursuant to this Part.
(2) Nothing contained in subsection (1) relieves a medical officer from liability in respect of the examination or treatment of the person taken into temporary custody under subsection 44(1), which liability he would have been subject to had the examination or treatment been carried out or administered with the consent of the parent or guardian of the person or person having authority to consent to the examination or treatment.
Investigation, enquiry and Protection Order
51. (1) Where an interim protection order is made under subsection 44(2), within fourteen days from the date of such order—
(a) an enforcement officer shall investigate into the circumstances of the person’s case for the purpose of determining whether the person is a trafficked person under this Act;
and
(b) a Protection Officer shall enquire into the background of that person.
(2) Upon completion of the investigation and enquiry under subsection (1), the enforcement officer and the Protection Officer shall jointly prepare a report and produce the report together with the person before a Magistrate’s Court for the purpose of satisfying the Magistrate that such person is a trafficked person under this Act.
(3) Where the Magistrate, having read the report produced under subsection (2), is satisfied that the person brought before him—
(a) is a trafficked person and in need of care and protection, the Magistrate may make a Protection Order—
(i) in the case of a trafficked person who is a citizen or permanent resident of Malaysia, ordering that such trafficked person be placed in a place of refuge for a period not exceeding two years from the date of the order; or
(ii) in the case of a trafficked person who is a foreign national, ordering that such trafficked person be placed in a place of refuge for a period not exceeding three months from the date of the order, and thereafter to release him to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63,
(b) is not a trafficked person, the Magistrate may—
(i) in the case of a person who is a citizen or permanent resident of Malaysia, order that person to be released; or
(ii) in the case of a person who is a foreign national, order that person to be released to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63.
(4) The Magistrate may at any time, on the application of an enforcement officer or a Protection Officer, as the case may be, extend or revoke the Protection Order made under this section.
(5) Notwithstanding subsection (4), where the trafficked person is a foreign national, an extension of the Protection Order may be granted only for the purpose of completing the recording of his evidence under section 52 or for any exceptional circumstances as determined by the Magistrate.
(6) Nothing in this section shall prejudice any prosecution of an act of trafficking in persons under this Act.
Recording of evidence of trafficked person
52. (1) At any time during the period of the Protection Order made under subparagraph 51(3)(a)(ii), where a criminal prosecution has been instituted against any person for an offence under this Act, the Public Prosecutor may make an oral application for the production of the trafficked person before a Sessions Court before which the
criminal prosecution has been instituted for the purpose of recording that trafficked person’s evidence on oath.
(2) The Sessions Court Judge may, upon such application, issue a summons or order directed to the person in charge of the place of refuge where such trafficked person is placed, requiring him to produce the trafficked person at the time and place specified in the summons or order.
(3) The Sessions Court Judge shall record the evidence of the trafficked person and complete such recording within seven days from the date of the production of that trafficked person before him.
(4) In the course of the recording of evidence of the trafficked person, he shall be examined in accordance with the provisions of the Evidence Act 1950.
(5) The Sessions Court Judge shall cause the evidence taken by him to be reduced into writing and, at the end of that writing, shall sign the same.
(6) Notwithstanding anything contained in this Act or any other written laws to the contrary, the evidence recorded under this section shall be admissible in evidence in any proceedings under this Act and the weight to be attached to such evidence shall be the same as that of a witness who appears and gives evidence in the course of a proceeding.
Application by parent, guardian or relative
53. (1) Where a trafficked person placed in a place of refuge is a citizen or permanent resident of Malaysia, the parent, guardian or relative of that person may, at any time, make an application to the Magistrate’s Court to commit that person into the custody of the parent, guardian or relative.
(2) The parent, guardian or relative of the trafficked person shall serve a copy of the application to the Protection Officer.
(3) Upon receipt of an application under subsection (2), the Protection Officer shall cause a report to be prepared in relation to—
(a) the trafficked person;
(b) the status of any investigation or prosecution for any offence under this Act in relation to the trafficked person;
(c) the background of the trafficked person, his parent, guardian or relative; or
(d) any other matter as the Protection Officer deems relevant,
to enable the Magistrate to determine the application in the best interest of the trafficked person.
(4) The Magistrate shall, upon receipt of the application, fix a date for the hearing of the application, and shall, by notice in writing, inform the parent, guardian or relative of the trafficked person, as the case may be, the Protection Officer or other person the Magistrate deems fit, and shall require the production of the trafficked person before him on the appointed date.
(5) After hearing the application and having read the report of the Protection Officer, and if the Magistrate is satisfied that it is in the best interest of the trafficked person, he may—
(a) commit the person into the care and protection of the parent, guardian or relative of the person, upon such conditions as he may deems fit to impose;
(b) require the parent, guardian or relative of the person to enter into a bond; or
(c) require the person to be placed under the supervision of a Protection Officer,
for a period to be determined by the Magistrate.
(6) The Magistrate may, at any time, revoke any order made under subsection (5).
Release of trafficked person
54. (1) Upon revocation of a Protection Order or expiry of the period specified in a Protection Order, the Protection Officer shall—
(a) in the case of a trafficked person who is a citizen or permanent resident of Malaysia, release that person;
or
(b) in the case of a trafficked person who is a foreign national, release that person to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63.
(2) The immigration officer shall take all necessary steps to facilitate the return of that trafficked person to his country of origin without unnecessary delay, with due regard for his safety.
(3) Notwithstanding paragraph (1)(a), the court may, upon an application made by the Protection Officer, and being satisfied that such person is in need of further care and protection, make an order that such trafficked person be placed in the place of refuge for any further period as the Magistrate deems fit.
Trafficked person who escapes or is removed from place of refuge
55. Any trafficked person who escapes or is removed from a place of refuge without lawful authority—
(a) may be taken into custody by any enforcement officer and shall be brought back to the place of refuge; and
(b) shall be placed for such period which is equal to the period during which he was unlawfully at large and for the unexpired residue of his term in the Protection Order originally made by the Magistrate.
Offence of removing or helping a trafficked person to escape from place of refuge
56. Any person who—
(a) removes a trafficked person from a place of refuge without lawful authority;
(b) knowingly assists or induces, directly or indirectly, a trafficked person to escape from a place of refuge; or
(c) knowingly harbours or conceals a trafficked person who has so escaped, or prevents him from returning to the place of refuge,
commits an offence.
Power of Minister to remove trafficked person from one place of refuge to another
57. The Minister may, at any time, for reasons which appear to him to be sufficient, by order in writing direct the removal of any trafficked person from a place of refuge to any other place of refuge as may be specified in the order.
