PENANG’S Entertainment and Places of Entertainment Enactment 1998 (En 1/1998) is the state law that provides for the licensing and regulation of entertainment and places of entertainment.

The enactment is in six parts. Part III covers licensing. It begins with section 6, as follows:

(1) No person shall provide entertainment at any place unless a licensing officer has granted-

(a) a licence to provide such entertainment; and

(b) a licence to provide entertainment at that place.

Any person contravening these rules can face up to three years in prison and a fine of RM20,000 for the first offence.

For subsequent convictions, the fine extends to RM50,000 and the prison term could be up to five years.

Part IV provides for powers of investigation, arrest, seizure and forfeiture. Under section 18, any police officer not below the rank of inspector may, without warrant and for the purpose of ascertaining whether the conditions or restrictions of a licence or the provisions of the enactment or any regulations are being complied with:

(a) enter any place of entertainment; and

(b) carry out any investigation at such place of entertainment.

The police officer may also:

(a) inspect the place of entertainment; and

(b) require any person to produce any documentation necessary to the investigation.

Under section 22, the police officer is also empowered to enter a place and may search such place and any person whom he reasonably believes to be concerned in the management or promotion of any entertainment if he has reasonable ground to believe that:

(a) an offence or any regulations has or is being committed at any place; and

(b) by reason of any delay in obtaining a search warrant the purpose of the search is likely to be frustrated.

The above is what is known as the power to search without warrant.

The power of investigation is further aided by the power to arrest. Section 21 empowers the police officer to arrest without warrant any person whom he reasonably believes to have committed an offence under section 6, among others.

Any person arrested under the section “shall be taken to the nearest police station and shall be brought before the court within 24 hours of the arrest”.

Pursuant to sections 18 and 22, the police are empowered to seize any document or item that he reasonably believes to have a bearing on the case.

It looks like the police raid of a hardcore music gig at a record store in George Town on Saturday, resulting in four arrests, as reported by MalaysiaKini, is in accordance with the enactment.

As for the trio detained for filming the raid, let’s look at section 20 on obstruction:

Any person who:

(a) obstructs any police officer or authorised person lawfully exercising any powers conferred on him by or under this enactment or any regulations;

(b) upon being required by such police officer or authorised person to produce any documentation or items which are, or ought to be, in the ordinary course of business in his power to produce, delays in producing them to such police officer or authorised person;

(c) upon being required by such police officer or authorised person to furnish any information, refuses to do so or furnishes false or misleading information; or

(d) obstructs the seizure of any document or other thing under section 23, or the closure of any place of entertainment under section 19,

shall be guilty of an offence and shall on conviction be liable to a fine of up to RM10,000 or a prison term of up to three years or to both.

Obstruction is therefore an offence under the enactment. It is also an offence under section 186 of the penal code.

In the case of Tan Teck Yam v PP [1968] 1 MLJ 57, Raja Azlan Shah J (as HRH then was) explained the offence under section 186:

“The prosecution has to prove the following: (1) that a public servant was obstructed, (2) that the public servant was at that time discharging his public function, and (3) that the person obstructing did so voluntarily.

“It is clear that to obstruct under section 186 is to do an act that makes it more difficult for a public servant to carry out his duties. I take that definition of ‘obstruction’ from the [English] case of Hinchliffe v Sheldon.”

As a matter of fact, more than 20 years earlier in 1940, the word ‘obstruction’ had been decided to mean “some interruption or hindrance to the progress of work being carried out by a public servant in the discharge of his public duties, and such public servant may be directly or indirectly obstructed.” (see PP v Bahadar Khan [1940] 1 MLJ 180)

Based on the above, it is a question of whether an act or acts amount to an obstruction. To borrow the words of Justice James in the English case of Rice v Connolly [1966], there may be circumstances in which a person recording the raid on his smartphone could amount to an obstruction.

Whether they do is a question of fact and remains to be decided.

Be that as it may, let’s not jump to conclusion about the police raid on Saturday without ascertaining the facts.

One thing is for sure: entertainment without licence is prohibited and an offence under the enactment. – February 1, 2023.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.