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HOUSING DEVELOPMENT (CONTROL AND
LICENSING) ACT, 1966
(Act 118)
Date of coming into force: 29
August 1969 [P.U.(B) 212/69]. Revised
1973 w.e.f.16 August 1973
(Amended by
Act A1289 w.e.f 12 April 2007)
PREAMBLE
First enacted 1966 (Act No. 38 of
1966)
Revised 1973 (Act 118 w.e.f.16 August 1973)
An Act to provide for the control and licensing of the
business of housing development in Peninsular Malaysia,
the protection of the interest of purchasers
and for matters connected therewith.
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PART I -
PRELIMINARY
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1. Short title and
application.
(1) This Act may be cited as the Housing Development (Control and
Licensing) Act 1966. |
| (2) (Omitted). |
| (3) This Act shall apply only in West Malaysia. |
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2. Saving and exemption. |
| (1) (Deleted
by
Act A1142) |
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(2) The Minister may by order
published in the Gazette exempt any housing developer or housing
accommodation from any or all of the provisions of this Act and such
exemption may be granted for such duration as may be specified in the order,
and may be made subject to such limitations, restrictions or conditions as
the Minister may specify in the order.
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| (2A) The
Minister may at any time by order published in the Gazette, revoke
any exemption granted by him under subsection (2). |
| (3) The provisions of this Act
which relate to a company shall be construed as in addition or supplementary
to, and not in derogation from, the provisions of any written law relating
to companies. |
3. Interpretation.
In this Act, unless the context otherwise requires - |
| "bank" means any
bank licensed under the Banking and Financial Institutions Act 1989 (Act
372) or under the Islamic Banking Act 1983 (Act 276); |
| "body of persons"
means a group of persons, not being an incorporated body or group; |
| "certificate
of completion and compliance" means the certificate of completion and
compliance given or granted under the Street, Drainage and Building Act 1974
[Act 133] and any by-laws made under that Act certifying that the
housing accommodation has been completed and is safe and fit for occupation
but does not include partial certificate of completion and compliance; |
| "company" means any
company incorporated, formed or registered under any written law for the
time being in force in Malaysia relating to companies, and includes any body
corporate established under any written law in force in Malaysia; |
| "Controller" means
the Controller of Housing appointed under
section 4; |
| "Deputy Controller"
means the Deputy Controller of Housing appointed under
section 4; |
| "finance company"
means any finance company licensed under the Banking and Financial
Institutions Act 1989 (Act 372); |
| "firm" means an
unincorporated body of persons (whether consisting of individuals or of
corporations or partly of individuals and partly of corporations) associated
together for the purpose of carrying on business; |
| "housing accommodation "
includes any building, tenement or messuage which is wholly or principally
constructed, adapted or intended for human habitation or partly for human
habitation and partly for business premises and such other type of
accommodation as may be prescribed by the Minister from time to time to be a
housing accommodation pursuant to
section 3A; |
| "housing developer"
means any person, body of persons, company, firm or society (by whatever
name described), who or which engages in or carries on or undertakes or
causes to be undertaken a housing development; |
| "housing development"
means to develop or construct or cause to be
constructed in any manner whatsoever more than four units of housing
accommodation and includes the collection of moneys or the carrying on of
any building operations for the purpose of erecting housing accommodation
in, on, over or under any land; or the sale of more than four lots of land
or building lots with the view of constructing more than four units of
housing accommodation; |
| "Housing Development Account"
means an account opened and maintained by a licensed housing developer
pursuant to
section 7A; |
| "housing lot"
means any piece of land surveyed or otherwise, to which a lot number has
been assigned to it and which is subject to the category "building" in
accordance with the National Land Code 1965 (Act 56/65); |
| "Inspector" means
an inspector appointed under
section 4; |
| "licence" means a
licence granted under
section 5; |
| "licensed housing developer"
means any housing developer licensed under
section 5
to engage in or carry
on or undertake a housing development and includes the holder of any power
of attorney of such housing developer duly created under the Powers of
Attorney Act 1949 [Act 424]; |
| "local authority"
includes any person or body of persons appointed or authorized under any
written law to exercise and perform the powers and duties which are
conferred and imposed on a local authority under any written law; |
| "prescribed" means
prescribed by regulations made under this Act, and where no mode is
mentioned means prescribed from time to time by order published in the
Gazette; |
| "purchaser" means
any person who purchases housing accommodation or who has any dealing with a
licensed housing developer in respect of the acquisition of housing
accommodation; |
| "stakeholder"
means any solicitor holding moneys as stakeholder for payment to a housing
developer pursuant to sale and purchase agreements in respect of a housing
development which the housing developer is engaged in, carries on or
undertakes or causes to be undertaken; |
| "Tribunal" means
the Tribunal for Homebuyer Claims established under
section 16B. |
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3A. Powers of the Minister to determine housing accommodation.
(1) The Minister may, from time to time, by order published in the
Gazette, prescribe any type of accommodation to be a housing
accommodation. |
| (2) In
the event of any doubt as to whether a housing accommodation falls within
the meaning of this Act, the Minister's decision shall be final and shall
not be questioned in any court. |
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4. Appointment of Controller, Deputy Controllers, Inspectors and other
officers and servants.
(1) For the purpose of this Act, the Minister may appoint a Controller of
Housing and such number of Deputy Controllers of Housing, Inspectors of
Housing and other officers and servants as the Minister may deem fit from
amongst members of the public service. |
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(2) The Controller and Deputy
Controllers shall have and may exercise any of the powers conferred on an
Inspector by or under this Act. |
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(3) The Controller may, in
writing, delegate all or any of his powers or functions under this Act,
except his power of delegation, to any Deputy Controller, Inspector, officer
or servant appointed under subsection (1). |
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(4) Without prejudice to
subsection (2), the Controller may, in writing, delegate any of his powers
and functions under this Act in respect of the investigation of offences
under this Act and the enforcement of this Act to any public officer or
officer of a local authority. |
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(5) Any delegation under
subsection (3) or (4) may be revoked at any time by the Controller and does
not prohibit the Controller from himself exercising the powers or performing
the functions so delegated. |
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PART II -
LICENSING OF HOUSING DEVELOPERS |
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5. Prohibition against housing development except by virtue of a licence
and provisions relating to the grant of a licence.
(1) No housing development shall be engaged in, carried on, undertaken or
caused to be undertaken except by a housing developer in possession of a
licence issued under this Act. |
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(2) Except with the written consent of the Controller no
housing developer other than a licensed housing developer shall assume or
use in relation to his business or any part of his business the words
"housing developer" or any of its derivatives or any other word or words
indicating the carrying on of the business of housing development. |
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(3) A housing developer who desires to engage in or carry
out or undertake or cause to be undertaken a housing development shall apply
to the Controller for a licence and any such application shall be made in
the prescribed form and in the case of any applicant listed in column (1) of
the Schedule the application shall be accompanied by the documents listed
against him to column (2), every such document being verified by means of a
statutory declaration made by the person listed in column (3) of the said
Schedule. |
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(4) Upon receiving an application for a licence under
this section, the Controller may grant the licence applied for or refuse to
grant such a licence; and in granting such a licence the Controller may
impose thereon such conditions (including the period during which the
licence shall be valid) as he may deem fit and proper. |
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(4A) No application for a
licence under this section shall be considered unless the prescribed fees
have been paid to the Controller. |
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(4B) There shall be charged and
paid to the Controller on the grant of a licence and at such intervals after
such grant during the period of validity of the licence such fees as may be
prescribed. |
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(5) Subject to
section 14, the
Controller may at any time vary, cancel or alter the conditions imposed
under subsection (4) or impose any new or additional conditions; or, where
the licence is not subject to any condition, impose thereon such conditions
as the Controller may deem fit for carrying out the provisions of this Act. |
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6. Conditions or restrictions for the grant of a licence.
(1) Subject to the exercise of power of waiver by the Minister under
subsection (2), the licence applied for under
section 5 shall not be granted
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(a) unless the applicant has a capital issued and
paid up in cash of not less than two hundred and fifty thousand ringgit and
makes a deposit with the Controller of not less than two hundred thousand
ringgit in cash or in such other form as the Minister may determine, if the
application is made by a company; or |
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(b) unless the applicant
makes a deposit with the Controller of not less than two hundred thousand ringgit in cash or in such other form as the Minister may determine, if the
application is made by a person or body of persons; |
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(c) unless the applicant is not
himself nor is any member or partner thereof a person convicted of an
offence involving fraud or dishonesty or an undischarged bankrupt, if the
application is made respectively by a person or a body of persons or a firm; |
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(d) unless no one who is convicted of an offence
involving fraud or dishonesty or who is an undischarged bankrupt is holding
office as director, manager or secretary of the applicant or other similar
office or position, if the application is made by a company, or is holding
office as president, secretary or treasurer of the applicant or other
similar office or position, if the application is made by a society; |
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(e) unless, at the time
the application is made, the applicant or any member or partner of the
applicant, if the applicant is a body of persons or firm, or a director,
manager or secretary of the applicant, if the applicant is a company, has
not, due to a conviction for an offence under this Act, been sentenced to a
fine exceeding ten thousand ringgit or to imprisonment (other than
imprisonment in default of a fine not exceeding ten thousand ringgit); |
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(f) unless, at the time
the application is made, a person who had been a director of or had been
directly concerned in the management of the business of a licensed housing
developer which has been wound up by a court is not a director or is not
directly concerned in the management of the business of the applicant; and |
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(g) if the registration
of the applicant's architect or engineer has been cancelled and has not been
reinstated under the Architects Act 1967 [Act 117] or the
Registration of Engineers Act 1967 [Act 138] at the time the
application is made. |
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(1A) For the purposes of
paragraphs (1)(d), (e) and (f), if the applicant is a
company, the expression "applicant" shall include the holding company of the
applicant, or a subsidiary of the applicant or a subsidiary of the holding
company of the applicant. |
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(2) The Minister may in his
absolute discretion waive any or all of the conditions set out in paragraph
(1)
(a), (b) or (d) or
substitute any or all of the said conditions for such other conditions as he
may consider fit and proper. |
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6A. Controller to keep
deposit. Subject to any direction of the Minister,
the Controller shall keep the deposit made under paragraphs 6(1)(a)
and (b) until the expiry of the defect liability period of the
housing development.
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6B. Controller may
forfeit deposit. If any licensed holding developer - |
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(a) is carrying on his business, in the opinion of the Controller, in
a manner detrimental to the interest of the purchasers or to any member of
the public; |
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(b) has insufficient
assets to cover his liabilities; |
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(c) is contravening any
of the provisions of this Act; or |
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(d) has ceased to carry
on housing development in West Malaysia, |
| the Controller may, after
having given the licensed developer an opportunity to submit reasons within
a specified time on why the deposit under paragraph 6(l)(a) or (b)
should not be forfeited, forfeit the whole or a part of the deposit. |
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PART III - DUTIES OF A LICENSED HOUSING
DEVELOPER. |
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7. Duties
of a licensed housing developer. In addition to the liabilities
and duties imposed in sections 8 and
9, a licensed housing developer shall -
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(a) within four weeks of the making of any alterations in or to any
of the documents submitted to the Controller under subsection 5 (3) furnish
to the Controller written particulars of the alterations; |
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(b) exhibit at all
times in a conspicuous position in any office and branch office of the
licensed housing developer and at any other place
where a sale of housing accommodation is conducted, a copy of his
licence, advertisement and sale permit and a copy of his last audited
balance-sheet as soon as the same is available and such information as the
present or former full name, usual residential address, nationality,
nationality of origin (where the present nationality is not that of origin),
business or occupation (if any) of each person who has the control and
management of the business of the licensed housing developer and particulars
of any other directorship held by that person; |
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(c) keep or cause to be
kept in his office in West Malaysia such accounting and other records as
will sufficiently explain the transactions and the financial position of the
licensed housing developer and enable true and fair profit and loss accounts
and balance-sheets and any documents required to be attached thereto to be
prepared from time to time, and shall cause these records to be kept in such
manner as to enable them to be conveniently and properly audited; |
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(d) every year appoint
an auditor or auditors in the manner required under
section 9; |
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(e) within six months
after the close of the financial year of the licensed housing developer in
question send to the Controller and also publish in the Gazette a
copy of the report of the auditor prepared under
section 9 together with a
copy of his balance-sheet and profit and loss account, |
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(f) not later than the 21st
day of January and the 21st day of July of each year or at such
frequency as may be determined by the Controller from time to time or upon
the request of the Controller, send to the Controller a correct and
complete statement in writing made on oath or affirmation, in such form
and containing such information as the Controller may from time to time
determine, on the progress of the housing development which the housing
developer is engaged in, carries on or undertakes or causes to be
undertaken until certificate of completion and compliance have been issued
for all the housing accommodation in that housing development; |
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(g) where he considers that he is likely to
become unable to meet his obligations to the purchasers at any stage of
the housing development before the issuance of the
certificate of fitness of completion and compliance, forthwith
inform the Controller of such fact;
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(h) undertake the following - |
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(i) within twenty-one days from the date of receipt by the housing developer
of the certificate of completion and compliance, submit such certificate to
the Controller; |
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(ii) within twenty-one days after
the date of handing over of vacant possession to the first purchaser of the
housing accommodation in the housing development, inform the Controller in
writing of the handing over;
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| (i) inform the
Controller of any refusal in the issuance of certificate of completion and
compliance; |
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(j) ensure that the development of the housing
accommodation has been carried out in accordance with any requirements
prescribed under any law regulating buildings and has exercised all such
diligence as may be required for the issuance of
certificate of completion and compliance and for the issuance and
transfer of the titles to the housing accommodation to the purchasers; and |
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(k) inform the Controller of the progress in the
issuance of separate or strata titles for the housing accommodation and
the transfer of such titles to the purchasers at
such frequency as may be determined by the Controller beginning from the
date of the handing over of vacant possession to the first purchaser of
the housing accommodation in the housing development until separate or
strata titles for all the housing accommodation have been issued. |
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7A. Licensed housing developer to open and maintain Housing
Development Account
(1)
Subject to subsection (9), every licensed housing developer shall open and
maintain a Housing Development Account with a bank or finance company for
each housing development undertaken by the licensed housing developer. |
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(2) Where a housing development
is to be developed in phases, the licensed housing developer shall open and
keep a Housing Development Account under subsection (1) for each phase of
such housing development. |
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(3) The licensed housing
developer shall pay into the Housing Development Account of a housing
development the purchase monies received by the licensed housing developer
from the sale of housing accommodation in the housing development and any
other sum or sums of money which are required by regulations made under this
Act to be paid into the Housing Development Account. |
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(4) The licensed housing
developer shall not withdraw any money from the Housing Development Account
except as authorised by regulations made under this Act. |
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(5) Subject to paragraph (6)
(b), all monies in the Housing Development Account and all moneys held
by the stakeholder shall, notwithstanding any other written law to the
contrary, be deemed not to form part of the property of the licensed housing
developer in the event - |
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(a) the licensed housing developer enters into any composition or
arrangement with his creditors or has a receiving order or an adjudication
order made against him; or |
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(b) the licensed housing
developer, being a company, goes into voluntary or compulsory liquidation. |
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(6) Upon the happening of any
of the event referred to in subsection (5) - |
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(a) the monies in the Housing Development Account and moneys held by
the stakeholder shall vest in the
official receiver, trustee in bankruptcy or liquidator as the case may be,
to be applied for all or any of the purposes for which monies in the Housing
Development Account and moneys held by the stakeholder are authorised by regulations made under this Act to be
withdrawn; and |
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(b) any money remaining
in the Housing Development Account and moneys held by the stakeholder, after all payments have been made
pursuant to paragraph (a) and all liabilities and obligations of the
licensed housing developer under the sale and purchase agreements in respect
of the housing development have been fully discharged and fulfilled, shall
be held by the official receiver, trustee in bankruptcy or liquidator as the
case may be, as money belonging to the licensed housing developer to be
applied in accordance with the law relating to bankruptcy of or the
winding-up of a company. |
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(7) Notwithstanding any other written law to the
contrary, all monies in the Housing Development Account and moneys held by
the stakeholder shall not be garnished until all liabilities and obligations
of the licensed housing developer under the sale and purchase agreements in
respect of the housing development have been fully discharged and fulfilled. |
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(8) Subject to the provisions of the Banking and
Financial Institutions Act 1989 and the Islamic Banking Act 1983, the
Minister may, if he thinks necessary, appoint an approved company auditor to
investigate the books, accounts and transactions of a Housing Development
Account and the licensed housing developer shall pay all expenses incurred
hereto. |
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(9) This section shall not apply to any housing
development carried on by a licensed housing developer where all the housing
accommodation in the housing development and the issuance of
certificate of completion and compliance
will not be offered for sale and purchase before the completion of
the housing development. |
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(10) Any housing developer who contravenes or fails to
comply with this section shall be guilty of an offence and shall, on
conviction, be liable to a fine which shall not be less than
two hundred and fifty thousand ringgit but
which shall not exceed five hundred thousand ringgit and shall also be
liable to imprisonment for a term not exceeding three years or to both. |
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7B. Licensed housing developer for the purpose of sections 8, 8A, 11 and
12.
For the purpose of sections
8,
8A,
11 and
12, "licensed
housing developer" includes any housing developer whose licence has expired. |
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7C. Freezing of the Housing Development Account.
(1) If the Controller has reason to believe that a
licensed housing developer is carrying on his business in a manner
detrimental to the interest of the purchasers or is contravening any of the
provision of this Act, the Controller may in writing order a freeze on the
Housing Development Account and direct the bank or finance company, as the
case may be, not to part with, deal in or otherwise permit any withdrawal of
any moneys from the Housing Development Account until the order is revoked
or varied or unless in accordance with any conditions as may be imposed by
the Controller at his absolute discretion from time to time during the
currency of the order.
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(2) No bank or finance company, or
director, officer or employee of the bank or finance company, as the case
may be, shall be subject to any claim or demand by or liability to any
person in respect of anything done or omitted to be done in good faith in
pursuance of or execution or intended execution of or in connection with the
execution or intended execution of an order of the Controller under
subsection (1).
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| (3) Any person who fails to comply
with an order of the Controller under subsection (1) shall be guilty of an
offence and shall be liable to a fine not exceeding one hundred thousand
ringgit. |
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8. Arrangement or agreement affecting the business of a licensed
(1) Where a licensed housing developer proposes to enter
into an arrangement or agreement to sell, transfer, assign, dispose of or
reconstruct his business or management relating to housing development
either by amalgamation or otherwise, the licensed housing developer shall as
soon as possible notify the Controller of the proposed arrangement or
agreement and unless approved by the Controller under subsection (2), the
licensed housing developer shall not proceed with that arrangement or
agreement. |
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(2) Where the Controller receiver the notification of the
proposed arrangement or agreement under subsection (1), the Controller may
approve the arrangement or agreement or refuse to give approval thereto; and
in approving the same he may impose thereon such conditions as he may deem
fit and proper for the purpose of carrying into effect the provisions of
this Act. |
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8A. Statutory termination of sale and purchase agreements.
(1) Notwithstanding anything contained in any agreement, a licensed housing
developer or the purchasers may apply to the
Minister for approval to terminate all the sale and purchase agreements
entered into in respect of a housing development or any phase of a housing
development which the housing developer is engaged in, carries on or
undertakes or causes to be undertaken if- |
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(a) such
application, duly made in accordance with subsection (2), is received by the
Minister within six months after the execution of the first sale and
purchase agreement in respect of that housing development or that phase of
housing development; and |
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(b) at least seventy-five per cent of all the
purchasers who have entered into the sale and purchase agreements have
agreed with the housing developer in writing to terminate the sale and
purchase agreements. |
| (2) Any application made under subsection (1)
shall be supported by- |
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(2A) In the case of an application
made by the purchasers under subsection (1), no licensed housing developer
shall unreasonably withhold his written consent to the termination of the
sale and purchase agreement. |
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(a) the written consent of the licensed housing
developer and of each of the purchasers who have agreed to terminate the
sale and purchase agreements and such consent shall have been duly executed
by the licensed housing developer and the purchaser, as the case may be, and
witnessed by his solicitors or a Commissioner for Oaths not earlier than one
month before the date of the application; and |
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(b) such other documents or evidence as the
Minister may require or as may be determined including such evidence which
may satisfy the Minister that the licensed housing developer is financially
capable of refunding to the purchasers and their financiers all the moneys
paid by them to the licensed housing developer if the Minister approves such
application. |
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(3) For the purpose of this section, joint purchasers
irrespective of any number in a sale and purchase agreement shall be
considered as one purchaser. |
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(4) Upon receipt of an
application under subsection (1), the Minister may grant or refuse the
application for approval. |
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(5) In granting the approval
under subsection (4) the Minister may impose such conditions as he may deem
fit and proper. |
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(6) The decision of the
Minister shall be final and shall not be questioned in any court and it
shall be binding on the licensed housing developer and all the purchasers
and no injunction shall be granted to restrain any person from carrying out
the decision of the Minister. |
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(7) All the sale and purchase agreements in respect of
the housing development or the phase of a housing development which is the
subject of an approval under subsection (4) including those of the remaining
purchasers who have not agreed to the termination shall be deemed to have
been duly terminated. |
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(8) The licensed housing developer shall, within fourteen
days from the date of receipt of the Minister's approval, inform all the
purchasers in writing of the Minister's decision. |
| (9) The licensed housing developer shall refund all
moneys received by the licensed housing developer from the respective
purchasers free of any interest within the period stated in the Minister's
approval. |
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(10) Upon receipt of the refund under subsection (9), the
purchasers shall immediately cause all encumbrances on the land to be
removed and the cost and expenses for such removal shall be borne by and may
be claimed as a civil debt from the housing developer. |
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(11) Any person who fails to comply with any of
the provisions of this section shall be guilty of an offence and shall, on
conviction, be liable to a fine which shall not be
less than fifty thousand ringgit but which shall not exceed two hundred and
fifty thousand ringgit and to a further
fine not exceeding five thousand ringgit for every day during which the
offence continues after conviction. |
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9. Audit.
(1) Subject to subsection (2), every
licensed housing developer shall every year or as often as the need arises
appoint a person approved by the Minister to be his auditor or auditors; and
where a licensed housing developer fails to make the appointment or fails to
appoint another auditor in place of an auditor who has resigned his office
or dies or whose appointment has been terminated, the Minister may appoint
any person or persons who in his opinion is or are fit and proper to be an
auditor or auditors for the licensed housing developer in question and fix
remunerations which shall be paid to the auditor or auditors so appointed
and such remunerations shall be paid by the licensed housing developer for
whom the auditor or auditors is or are so appointed.
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(2) No person having an interest in the business of a
licensed housing developer either as a shareholder or otherwise; and no
director, officer, employee or agent of a licensed housing developer shall
be eligible for appointment as an auditor of the housing developer; and
where any person who is appointed as an auditor of a licensed housing
developer shall after his appointment acquire an interest in the business of
the licensed housing developer or become a director, an officer, employee or
agent of the licensed housing developer, he shall forthwith cease to be an
auditor of that licensed housing developer. |
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(3) Every auditor of a licensed housing developer shall
make a report to the Controller as to the annual balance-sheet and profit
and loss accounts of the licensed housing developer for whom the auditor is
appointed and shall state in every such report whether or not in his opinion
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(a) the balance-sheet and the profit and loss
accounts are properly drawn up and so as to give a true and fair account of
the state of the licensed housing developer's affairs; |
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(b) the accounting and the records
examined by him are properly kept; and |
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(c) if the auditor has called for an explanation
or information from the officers or agents of the licensed housing
developer, such explanation or information has been satisfactory.
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(4) Every auditor of a licensed housing developer shall
have a right of access at all times to the accounting and other records of
the licensed housing developer and shall be entitled to require such
information and explanation as he desires for the purpose of audit from the
officers of the licensed housing developer or from any other person who is
in possession of the information or who could give the information or
explanation. |
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(5) In addition to the duties and powers under this
section, every auditor of a licensed housing developer may also exercise the
powers and perform the duties conferred or imposed upon the Controller and
Inspectors under section 10 relating to the investigation into the affairs
of a licensed housing developer or his accounting or other records. |
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PART IV - INVESTIGATION AND ENFORCEMENT |
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10. Investigation.
(1) Either on his own volition or upon being directed by the Minister under
subsection (2), the Controller or an Inspector may from time to time under
conditions of secrecy investigate the commission of any offence under this
Act or investigate into the affairs of or into the accounting or other
records of any housing developer. |
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(2) The Minister may direct the Controller or
an Inspector to make an investigation under subsection (1) -
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(a) if he has reason to believe that the housing
developer in question is carrying on his business in a manner detrimental to
his purchaser; or has assets insufficient to meet his liabilities or is
contravening any of the provisions of this Act; or |
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(b) if an application for such an investigation is
made to him, and every such application shall be supported by not less than
five purchasers and accompanied with such evidence and such security as the
Minister may require for the purpose of satisfying himself that the
application is made in good faith, and of paying the costs of such an
investigation. |
| (3) (Deleted by
Act A1142) |
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10A. Powers
of entry, search and seizure.
(1) If it appears to
a Magistrate, upon written information on oath and after such inquiry as he
considers necessary, that there is reasonable cause to believe that any
premises have been used or are about to be used for, or there is in or on
any premises evidence necessary to establish, the commission of an offence
under this Act, the Magistrate may issue a warrant authorizing an Inspector
to whom it is directed, at any reasonable time by day or night and with or
without assistance- |
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(a) enter any premises and there search
for, seize and detain any property, book or other document; |
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(b) inspect, make copies of, or take
extracts from, any book or other document so seized and detained; |
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(c) take possession of, and remove from the premises, any
property, book or other document so seized and detained; |
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(d) search any person who is in, or on, such premises, and for
the purpose of such search detain such person and remove him to such place
as may be necessary to facilitate such search, and seize and detain any
property, book or other document found on such person; |
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(e) break open, examine, and search, any article, container or
receptacle; or stop, detain or search any conveyance. |
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(2) An Inspector authorized under
subsection (1) may, if it is necessary
so to do- |
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(a) break open any outer or inner door of such premises and
enter such premises and every part of such premises; |
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(b) remove by force any obstruction to such entry, search,
seizure, detention or removal; or |
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(c) detain all or any persons found on any premises, or in any
conveyance, searched under subsection (1) until such premises or
conveyance have been searched. |
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(3) If an Inspector has reasonable cause
to suspect by reason of delay in
obtaining a search warrant under
subsection (1) that- |
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(a) the investigation would be adversely affected; or |
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(b) evidence of the commission of an offence is likely to be
tampered with, removed, damage or destroyed, |
| he may enter the premises and exercise in, and in respect of the
premises, all the powers referred to in subsections (1) and (2) in as full
and ample a manner as if he were authorized to do so by a warrant under
subsection (1). |
| (4) A list of all things seized in the course of a search made under this
section and of the places in which they are respectively found shall be
prepared by the Inspector conducting the search and signed by him. |
| (5) The occupant of the premises entered under subsection (1), or some
person on his behalf, shall in every instance be permitted to attend during
the search, and a copy of the list prepared and signed under subsection (4)
shall immediately be delivered to such occupant or person. |
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(6) An Inspector shall, unless otherwise
ordered by any court- |
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(a) on the close of investigations or any proceedings arising therefrom; or |
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(b) with the prior written consent of the Controller for the
Inspector to act on his behalf for this purpose at any time before the
close of investigations, |
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release any property, book or other
document seized, detained or removed by
him or any other Inspector, to such
person as he determines to be lawfully
entitled to the property, book or other
document if he is satisfied that it is
not required for the purpose of any
prosecution or proceedings under this
Act, or for the purpose of any
prosecution under any other written law. |
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(7) A record in writing shall be made by
the Inspector effecting any release of
any property, book or other document
under subsection (6) in respect of such
release specifying therein in detail the
circumstances of, and the reason for,
such release. |
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(8) Where the Inspector is unable to
determine the person who is lawfully
entitled to the property, book or other
document or where there is more than one
claimant to such property, book or other
document, the Inspector shall report the
matter to a Magistrate who shall then
deal with the property, book or other
document as provided for in subsections
413(2), (3) and (4) and sections 414,
415 and 416 of the Criminal Procedure
Code [Act 593]. |
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10B. Search of person.
(1) An
Inspector may search any person whom he
has reason to believe has on his person
any property, book or other document, or
other article necessary, in his opinion,
for the purpose of an investigation into
any offence under this Act, and for the
purpose of such search may detain such
person for such period as may be
necessary to have the search carried
out, which shall not in any case exceed
twenty-four hours without the
authorization of a Magistrate, and may
remove him in custody to such place as
may be necessary to facilitate such
search. |
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(2) An Inspector making a search of a
person under subsection (1) may seize,
detain, or take possession of any
property, book or other document, or
article, found upon such person for the
purpose of the investigation being
carried out by him. |
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(3) No female person shall be searched
under this section or under section 10A
except by another female person and with
strict regard for decency. |
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10C. Obstruction to exercise of powers
by an Inspector. No person
shall- |
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(a) refuse any Inspector exercising his powers under section 10A
or 10B access to any premises or any part of such premises, or fail to
submit to the search of his person; |
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(b) assault, obstruct, hinder or delay such Inspector in
effecting any entrance which he is entitled to effect; |
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(c) fail to comply with any lawful demands of any Inspector in
the execution of his duties under section 10A or 10B; |
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(d) refuse to give to an Inspector any information which may
reasonably be required of him and which he has it in his power to give; |
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(e) fail to produce to, or conceal or attempt to conceal from,
an Inspector, any property, book, other document, or article in relation
to which an Inspector has reasonable grounds for suspecting that an
offence has been or is being committed under this Act;
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(f) rescue or endeavour to rescue any thing which has been duly
seized; |
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(g) furnish to the Inspector as true any information
which he knows or has reason to believe to be false; or |
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(h) before or after any seizure, break or otherwise destroy any
thing to prevent the seizure or the securing of the thing.
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10D. Requirement to provide translation.
(1) Where an Inspector
finds, seizes, detains, or takes possession of any book or other document in
the exercise of any power under this Act, and such book or other document or
any part of it is in a language other than the national language or the
English language, or in any sign or code, the Inspector may orally or in
writing require the person who had the possession, custody or control of
such book or other document, to furnish to the Inspector a translation in
the national language of such book or other document within such period as,
in the opinion of the Inspector, would be reasonable having regard to the
length of the book or other document, or other circumstances relating to it. |
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(2) No person shall knowingly furnish a
translation under subsection (1) which
is not an accurate, faithful and true
translation, or knowingly make a
translation under that subsection which
is not accurate, faithful and true. |
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10E. Power to
examine persons.
(1) Where an Inspector suspects any person to
have committed an offence under this Act, he may, if in his opinion it is
reasonably necessary to do so for the purposes of investigating into such
offence- |
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(a) order any person orally or in writing to attend before the
Inspector for the purpose of being examined orally by the Inspector in
relation to any matter which may, in the opinion of the Inspector, assist
in the investigation into the offence;
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(b) order any person orally or in writing to produce before the
Controller or the Inspector books, other documents, property, articles, or
things which may, in the opinion of the Controller or the Inspector,
assist in the investigation into the offence; or
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(c) by written notice require any person to furnish a statement
in writing made on oath or affirmation setting out in the notice all such
information which may be required under the notice, being information
which, in the opinion of the Controller, would be of assistance in the
investigation into the offence.
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(2) A person to whom an order under
paragraph (l)(a) or (b),
or a written notice under paragraph (l)(c),
has been given shall comply with the
terms of such order or written notice,
as the case may be, and, in particular- |
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(a) a person to whom an order under paragraph (1)(a) has
been given shall attend in accordance with the terms of the order to be
examined, and shall continue to so attend from day to day as directed by
the Inspector until the examination is completed, and shall during such
examination disclose all information which is within his knowledge, or
which is available to him, or which is capable of being obtained by him,
in respect of the matter in relation to which he is being examined,
whether or not any question is put to him with regard thereto, and where
any question is put to him he shall answer the question truthfully and to
the best of his knowledge and belief, and shall not refuse to answer any
question on the ground that it tends to incriminate him;
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(b) a person to whom an order has been given under paragraph (1)(b)
shall not conceal, hide, destroy, alter, remove from or send out of
Malaysia, or deal with, expend, or dispose of, any book, other document,
property, article, or thing specified in the order, or alter or deface any
entry in any such book or other document, or cause such act to be done, or
assist or conspire to do the act; and
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(c) a person to whom a written notice has been given under
paragraph (1)(c) shall, in his statement made on oath or
affirmation, furnish and disclose truthfully all information required
under the notice which is within his knowledge, or which is available to
him, or which is capable of being obtained by him, and shall not fail to
furnish or disclose the information on the ground that it tends to
incriminate him.
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| (3) A person to whom an order or a notice is given under subsection (1)
shall comply with such order or notice and with the provisions of subsection
(2) in relation to the order or notice, notwithstanding the provisions of
any written law, whether enacted before or after the commencement of this
Act, or of any oath, undertaking or requirement of secrecy, to the contrary,
or of any obligation under any contract, agreement of arrangement, whether
express or implied, to the contrary. |
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(4) Where any person discloses any information or produces any property,
book, other document, article, or thing, pursuant to subsections (1) and
(2), neither the first-mentioned person, nor any other person on whose
behalf or direction or as whose agent or employee the first-mentioned person
may be acting, shall, on account of such disclosure or production, be liable
to any prosecution for any offence under or by virtue of any law, or to any
proceeding or claim in any form or of any description by any person under or
by virtue of any agreement or arrangement, or otherwise. |
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(5) An Inspector may seize, take
possession of and retain for such
duration as he deems necessary, any
property, book, other document, article
or thing produced before him in the
course of an investigation under
subsection (1), or search the person who
is being examined by him under paragraph
(1)(a), or who produces anything
to him under paragraph (1)(b),
for ascertaining whether anything
relevant to the investigation is
concealed, upon such person or is
otherwise upon such person. |
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(6) An examination under paragraph (1)(a) shall be reduced into
writing by the Inspector and shall be read to and signed by the person being
examined, and where such person refuses to sign the record, the Inspector
shall endorse on the record under his hand the fact of such refusal and the
reasons for such refusal, if any, stated by the person examined. |
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(7) The record of an examination under
paragraph (1)(a), or a written
statement on oath or affirmation made
pursuant to paragraph (1)(c), or
any property, book, other document,
article or thing produced under
paragraph (1)(b) or in the course
of an examination under paragraph (1)(a)
or under a written statement on oath or
affirmation made pursuant to paragraph
(1)(c), shall, notwithstanding
any written law or rule of law to the
contrary, be admissible in evidence in
any proceedings in any court- |
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(a) for, or in relation to, an offence under this Act; or |
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(b) for, or in relation to, any other matter under this Act, |
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regardless whether such proceedings are
against the person who was examined, or
who produced the property, book, other
document, article or thing, or who made
the written statement on oath or
affirmation, or against any other
person. |
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10F. Specific persons in respect of
whom powers of investigation may be
exercised.
The powers of investigation
conferred by this Act on an Inspector,
may be exercised by him against- |
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(a) any past or present business associate; or |
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(b) any person who is or was concerned in the control or
management, in whole or in part of the affairs, |
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of the person suspected to have
committed an offence under this Act. |
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10G. Assistance to police or other
public officer. The Controller
may on his own initiative, or on the
request of an Inspector-
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(a) supply to a police officer or any other public officer a
copy of any book or other document seized, detained or taken possession of
under section 10A or 10B, or of any record of examination under paragraph
10E(l)(a), or of any written statement on oath or affirmation made
under paragraph 10E(l)(c), or of any book or other document
produced under paragraph 10E(l)(b), or otherwise in the course of
any examination under paragraph 10E(l)(a), or under any written
statement on oath or affirmation made pursuant to paragraph 10E(l)(c),
and such police officer or other public officer may make such use of such
copy of such record, statement, book or other document as may be necessary
or expedient in relation to the exercise of his powers, the performance of
his functions, or the discharge of his duties, in respect of any person;
or
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(b) allow a police officer or any other public officer to have
access to and inspect any property, book, other document, article or thing
which had been produced before, or seized, detained or taken possession
of, by an Inspector under this Act, and such police or other public
officer may make such use of any knowledge gained by such access or
inspection as may be necessary or expedient in relation to the exercise of
his powers, the performance of his functions, or the discharge of his
duties, in respect of any person.
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10H. Protection of informers.
(1) Except as provided in subsection
(3), no witness in any civil or criminal
proceedings shall be obliged or
permitted to disclose the name or
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