THE government has no plans to remove the RM10,000 compound for violating Covid-19 standard operating procedure (SOP) as the Health Ministry supports it, Senior Minister Ismail Sabri Yaakob said yesterday. 

If that is the case, it is submitted that there is a flaw in the law which must first be remedied.

Under the law, the compounding of an offence is also known as a “composition”. It refers to “a procedure by which an agency that administers a written law gives a person who is reasonably suspected of committing an offence under that law (the alleged offender) the chance to avoid prosecution and conviction in court by paying a sum of money to the agency. This is done by many government agencies. On payment of the sum of money by the alleged offender, the agency will not take or will discontinue any criminal proceedings against the alleged offender in respect of the offence and the alleged offender is taken not to have been convicted of the offence.”

There are many legislation which provide for compounding of offences and the procedure for compounding. For instance, the Prevention and Control of Infectious Diseases Act 1988 (Act 342). Section 25 of Act 342 provides for compounding of offences. Section 31, on the other hand, empowers the Minister of Health to make regulations to prescribe for offences which may be compounded and the procedure for compounding, as well as the forms to be used under the Act. [section 31 (r) & (s)]

Formerly, section 25 read as follow:

“The Director-General [of Health] or any public officer authorised for this purpose by him in writing may compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as compoundable by collecting from the offender a sum of money not exceeding one thousand ringgit.”

The procedure for compounding is duly prescribed by the Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 [PU (A) 327/1993]. The First Schedule lists out the offences which may be compounded in accordance with section 25 of Act 342 by the Director-General or any authorised officer authorised by the Director-General in writing. The Second Schedule prescribes the form if an offer to compound the prescribed offences listed in the First is to be made to the alleged offender. The form is as attached.

Now, section 25 of Act 342 has been amended by the much-criticised Emergency (Essential Powers) (No. 2) Ordinance 2021. The provision is more elaborate, with the power to compound offences made subject to the consent in writing of the Public Prosecutor (PP). It reads as follow:

“The Director-General or any authorised officer authorised for this purpose by the Director-General in writing may, with the consent in writing of the Public Prosecutor, at any time before a charge is being instituted, compound any offence under this Act or any regulations made under this Act which has been prescribed by regulations as a compoundable offence by making a written offer to the person reasonably suspected of having committed the offence to compound the offence upon payment to the Director-General –

(a) in the case of a person who is an individual, a sum of money not exceeding ten thousand ringgit; or

(b) in the case of a body corporate, a sum of money not exceeding fifty thousand ringgit.

Needless to say, the provision has courted criticisms for the compound sum of RM10,000, a tenfold increase from the previous sum of RM1,000.

But there is a more fundamental flaw in the law. While section 25 now requires the consent in writing of the PP, the procedure for compounding remains prescribed by the 1993 Regulations which makes no provision on consent in writing by the PP and the form in which the consent must be made.

This is in stark contrast to legislation where the power to compound offences is similarly made subject to the consent in writing of the PP, pursuant to which the regulations prescribing the procedure for compounding provides for the necessary consent and the form in which the consent must be made.

For instance, the Customs Act 1967 (Revised 1980) (Act 235). Section 131(2) of Act 235 provides for compounding of offences in similar terms as section 25 of Act 342, where the power to compound is made subject to the written consent of the PP. The procedure for compounding is prescribed by regulations made under section 131(1) of Act 235, namely the Customs (Compounding of Offences) Regulations 2020 [PU(A) 83/2020]. The regulations can be seen here. 

The First Schedule lists out the offences which may be compounded under Act 235. The offences may be compounded with the written consent of the PP in Form 1 of the Second Schedule. In other words, the consent in writing of the PP must be in Form 1, which can be seen in the regulations as well. 

Form 1 above is not prescribed by the 1993 Regulations which is understandable because consent in writing of the PP was not required under the old or repealed section 25 of Act 342.

It is therefore submitted that compounds issued under the current section 25 of Act 342 contravenes the section itself if issued without the consent in writing of the PP.

There is a flaw in the law which needs to be remedied. New regulations for compounding of offences and to prescribe the procedure for compounding will have to be made under the current section 25 of Act 342. – March 17, 2021.

* 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.