XX-Malaysia-Jamaudin-Malaysian Policy.pptx

CURRENT POLICY AND LAWS GOVERNING

COUNTERFEIT & FRAUD IN MALAYSIA

Rosleezam Jamaudin

Malaysian Nuclear Agency

IAEA, Vienna, Austria

19-21 July 2016

� Malaysia categorically does not tolerate any dealings involving

counterfeiting, piracy and fraud.

� Malaysia was ranked 7th in Asia and 28th in the world in The International

Property Rights Index 2015

� People of different cultures have different reason to buy counterfiet

products.

� For consumers in developing countries like Malaysia, prices have always

been a major factor in making any decision.

2

COUNTERFEIT PRODUCTS IN

MALAYSIAN MARKET

� Imitation products in Malaysian market : e.g. batteries, sauces, motor

oil, engine oil, toothpaste, detergent and canned food.

� Since 80% of Malaysian population are at the middle and lower level

income group, there are always demand for counterfeit product

� Pharmaceutical and automobile parts that are not genuine would

definitely pose a serious threat to public health & safety.

3

:: PEJABAT PEMBANGUNAN PERSEKUTUAN NEGERI SELANGOR::

Largest haul this yearBY AMANDA YEAP Saturday, 21 November 2015

•Perak Domestic Trade, Cooperatives and Consumerism Ministry made their largest seizure this year yet,

with almost RM500,000 worth of counterfeit goods seized.

Consumer Affairs, Entrepreneur Development, Cooperative, NGO and Civil Society Committee chairman

Datuk Samsudin Abu Hassan said the ministry raided five premises in Great World Centre on Jalan Raja

Permaisuri Bainun at 11am on Monday and seized 15,635 counterfeit phone accessories and sports

products.“From what I learned, the wholesale price of the fake Beats by Dr Dre headphones only costs around

RM25, but the suspects were found to be selling them for RM250. Their packaging is done in such aconvincing way, that even I was once fooled by these sellers,” he said.

5

Wednesday, 11 November 2015

RM1.8mil fakes and pirated discs destroyed

Mohd Nawardi driving the steamroller over some of the pirated discs after the press conference in Bukit Minyak,

Seberang Prai.

RM1.8mil worth of goods including computers, illegal DVDs, counterfeit branded

goods and cooking oil were disposed by the Penang Domestic Trade,

Cooperatives and Consumerism Department.

6

Premis jual barang tiruan diserbu – Premise selling electrical

products raided

IPOH - Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan (KPDNKK) negeri

menyerbu sebuah premis perniagaan di kawasan Perindustrian Silibin, di sini, semalam kerana didapati

memasarkan penghidup lampu kalimantang atau starter tiruan.

“Kita berjaya merampas 45, 600 starter lampu bernilai RM45, 600 dan hasil pemeriksaan mendapati barangan

terbabit adalah tiruan,” katanya pada sidang media di sini, semalam.

Sita alat ganti klon – Fake Automobile Parts

Confiscated

Mohd Khalis berkata, perbezaan ketara dapat dilihat termasuk warna tulisan jenama yang

berbeza, komponen di dalamnya dan ciri-ciri luaran alat ganti berkenaan


LEGAL FRAMEWORK IN MALAYSIA

ON COUNTERFEITING AND FRAUD

� Malaysia has so far placed a priority on the eradication of this problem

due to the potential hazardous impact it would have on the

commercial trade sector, the seriousness of risk it would pose to the

safety of the public and the negative economic implication the nation

would portray to foreign investment.

� Counterfeiting and fraud be it in the form of documentations or goods

are considered crime in Malaysia

� Historically, the scope of counterfeiting in Malaysia was limited to

counterfeiting coin and Government Stamps provided under the

Malaysian Penal Code.

8




� Any offences in the form of counterfeiting other than counterfeiting

coin and Government Stamps would fall under the crime of cheating

punishable under the Penal Code Act 574 which carries up to 5 years

imprisonment or fine of both if convicted.

415. Whoever by deceiving any person, whether or not such

deception was the sole or main inducement,—

(a)�

(b) intentionally induces the person so deceived to do or omit to

do anything which he would not do or omit to do if he were not

so deceived and which act or omission causes or is likely to

cause damage or harm to any person in body, mind, reputation,

or property, is said to “cheat”.

9




New laws needed to be created to fill up the loopholes in the old laws.

� Trademarks Act 1976

� Trade Description Act 2011

� Copyright (Amendment) Act 2012

� Trade Description (Optical Disc Label) Order 2010

� Price Control (Labelling by Manufacturer, Importers, Producers or

Wholesalers) Order 1980

� Optical Disc Act 2000 and Optical Disc Regulations 2000

10


MALAYSIA PROCUREMENT

PROCEDURE GUIDELINES

� Current procedures, which are in force, are believed to be

comprehensive and sufficient to prevent cases of counterfieting &

fraud.

� 1 Treasury Circular on Procedures of Procurement 2014 prescribes in

details how procurement should be done.

� It also provides diciplinary actions against a company in case of failure

to follow the guidelines which includes delivery of counterfeit product

and fraud.

11




� Planning

� Budgeting

� Technical specification – is to be prepared by a panel. If the items

intended to be procured is not available locally, an approval needed to

be obtained from Committee of Imported Items.

� Tender Advertisement – approval needed from the Head of

Organisation before tender can be advertised. Tender Document can

only be supplied to those who can produce qualification certificate e.g.

Company’s registration and license classification which indicate scope

of work undertaken. Government procedures also stipulate that a

company must register with the commissioning entity in order to

participate in bidding. 12




� Evaluation - Technical Committee will evaluate on technicalities. The

committee–comprises expert on the field, external representative from

technical organization. Price Committee will evaluate the ability of the

company to carry out the project, the past performance, the

experience and the company’s financial capacity.

� Selection – Decision will be made by a selection panel appointed by

Authority. Selection panel can only decide within the power conferred

by the Authority according to the range of prices of the particular item.

The higher the price of the item procured, the higher level of panel

selection needed to decide. Again to ensure neutrality and technical-

compliance, technical expert and external member would be

appointed as members of selection panel. 13




� Preparing Contract – include term and obligation in which requirement

is clearly stated that the items supplied must be genuine.

“The contrator must make sure the item supplied is

genuine and of new production according to required

specification prescribed in the Appendix”

The word “genuine” defined in the definiton section in the contract as:

“ Genuine product means not fake product”

14




In cases where fake products are found, the Contract states that

“in the event, the Government finds the item so supplied is

not genuine or/and not of new production, the Government has

the right to keep or to reject the item. The Government may

subsequently terminate the contract. Notwithstanding

anything in this clause, the Contractor shall compensate the

Government the value of the item so supplied whether the

Government decides to or not to terminate the contract”.

15




� Delivery– Delivery of the items can only be accepted by the authorized

person. This authorization is given in writing with prescription of roles

and responsibility attached with it. Among others the responsibility to

do thorough checking both physical and documentation related to it

which include certification of genuine items by manufacturer.

16




� Testing and Commissioning process (T&C) – T&C can only be done

by competent person appointed by the Authority. Its mandatory to

provide certification on testing on required parameters issued by

accredated laboratory.

� Payment – payment can only be made after completing all steps

rigorously with all the necessary documents.

� Warranty- generally warranty period will last for 12 months during

which any instance of malfunction or defect on the item procured,

should be repaired or replaced at the company own expense.

17




� The Government also give detail instruction how to deal with cases of

non-compliance on the part of companies. In the Treasury Circular

(know as 1PP) it stipulates that disciplinary action can be taken

against a company if it is found to be doing something against the

circular and that includes counterfeiting. The list of the act that

considered as non-compliance are as follows:

� Non-compliance to registration requirement

Falsifying document of registration

Allowing license to be used by a third party

Failure to update information on company profile

18




� Breach of contract

◦ Falsifying documents

◦ Withdrawal after tender has been closed

◦ Refuse to accept offer after being awarded

◦ Abetting in price manipulation among tenderers

◦ Late delivery

◦ Failure to deliver

◦ Failure to deliver according to specification

19




� The types of disciplinary action that can be taken

against companies are :◦ Warning

◦ Suspension from participating in Government projects

◦ Termination of company’s license

◦ Blacklisting companies’ shareholders

20


� Malaysia categorically does not tolerate any dealings involving

counterfeiting, piracy and fraud.

� Counterfeiting, piracy and fraudulent items in Malaysian market

revolve mainly around daily goods, electronic products and

automobile parts.

� No cases of counterfeiting and fraud has been reported related to

sophisticated equipments such as nuclear related items as the

market is very small.

� Malaysia Laws, regulation and procument guidelines are sufficient to

address cases of counterfiting, piracy and fraud

21

Documents

XX-Malaysia-Jamaudin-Malaysian Policy.pptx