Interpretation in relation to Part II A
In this Part, unless the context otherwise requires—
“authority” means any authority situated within or outside Malaysia;
“credit facility” has the meaning assigned to it in the Offshore Banking Act 1990;
“criminal offence” means any offence under—
(a) any law in Malaysia relating to offshore financial services, if such offence is punishable with imprisonment;
(b) the Penal Code;
(c) the Dangerous Drugs Act 1952 [Act 234];
(d) the Dangerous Drugs (Forfeiture of Property) Act 1988 [Act 340]; or
(e) the Kidnapping Act 1961 [Act 365];
“depositor” means any person who has placed a deposit or deposited a sum of money in a licensed offshore bank;
“domestic law enforcement agency” means the Royal Malaysia Police as defined in the Police Act 1967 [Act 344];
“financial institution” means a licensed offshore bank, licensee, trust company or fund manager;
“fund manager” means a manager as defined in the Labuan Offshore Securities Industry Act 1998;
“home monetary authority” has the meaning assigned to it in the Offshore Banking Act 1990, and includes the Bank;
“home supervisory authority” means any body or authority which is responsible for the supervision of a licensee in any country;
“licensed offshore bank” has the meaning assigned to it in the Offshore Banking Act 1990;
“licensee” has the meaning assigned to it in the Offshore Insurance Act 1990;
“trust company” has the meaning assigned to it in the Labuan Trust Companies Act 1990.
Submission of information
(1) The Authority may, in exercise of its supervisory functions under this Act or under any other law relating to offshore financial services, require any financial institution or any corporation related to any financial institution to submit to the Authority any information which the Authority deems necessary or expedient for the performance of such supervisory functions, but the Authority shall not require any information which discloses the affairs, identity or account of a customer of such institution or corporation.
(2) The Authority may disclose any information submitted under subsection (1)—
(a) to any person in a consolidated or aggregated manner if it deems fit so to do, but the disclosure shall be confined to such information which does not relate to an individual institution; or
(b) to the home monetary authority of the institution, and the disclosure may include any information which relates to an individual institution under the supervision of the home monetary authority.
(3) Nothing in subsections (1) and (2) shall be construed so as to prevent the exercise by the Authority of its power to require the submission of any information relating to the identity or particulars of any person who has obtained any credit facility from a licensed offshore bank, if the Authority is satisfied that such information is necessary for or incidental to its supervisory functions, and the Authority may disclose all or any part of such information—
(a) to the home monetary authority of the bank if the Authority is satisfied that such information is necessary for and incidental to the supervisory functions of the home monetary authority and it has secrecy provisions in the home monetary authority constituent documents to safeguard whatever information supplied to it from any unlawful disclosure; or
(b) to the domestic law enforcement agency if the Authority is satisfied, based on the evidence made available to the Authority, that fraud or criminal offence has been or is likely to be committed.
(4) Without prejudice to subsections (1) and (3), if the Authority is satisfied, based on the evidence made available to the Authority, that fraud or criminal offence has been or is likely to be committed, the Authority may require the submission of any information relating to—
(a) the affairs, identity or account of any particular depositor of any licensed offshore bank;
(b) the affairs, identity or account of any policy owner of a licensee;
(c) the affairs, account, dealing or particular of a customer of or any person involved in the ownership or management of or deal with a trust company; or
(d) the affairs, identity or account of any particular customer of a fund manager or the subscriber of the fund administered or managed by the fund manager.
(5) Notwithstanding subsections (2) and (3), if the Authority is satisfied, based on the evidence made available to the Authority, that fraud or criminal offence has been or is likely to be committed, the Authority may give information of such commission or convey any or all information in relation to such commission—
(a) in the case of information provided under paragraph (4)(a), to the home monetary authority or domestic law enforcement agency;
(b) in the case of information provided under paragraph (4)(b), to the home supervisory authority or domestic law enforcement agency; or
(c) in the case of information provided under paragraph (4)(c) or (4)(d), to the domestic law enforcement agency.
(6) Subject to subsections (3), (4) and (5), any information obtained by the Authority under subsections (1), (3) and (4) or any other provision of this Act shall be a secret between the Authority and the person supplying it, and no person who has any information or document which to his knowledge has been disclosed in contravention of this subsection shall in any manner disclose the information or document to any other person.
(7) Without prejudice to any other provision in this Act, the Authority may receive any information from any person or authority in the course of carrying out any power or duty under this Act or any other law relating to offshore financial services.
(8) For the purpose of this Part, no action, suit or prosecution or other proceeding shall lie or be brought or maintained in any court or before any other authority against any person for complying with any provision of this Part.
(9) This Part shall have full force and effect, notwithstanding anything inconsistent therewith or contrary thereto in this Act or in any provision under any other law relating to offshore financial services.
(10) Any offshore financial institution who fails to comply with this section shall be guilty of an offence and shall be liable, on conviction—
(a) in the case of an individual person to a fine not exceeding one million and five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both; and
(b) in the case of a body corporate or partnership to a fine not exceeding three million ringgit.
(11) Any person who fails to keep information secret as required under subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding six months or to both.
Examination
28 C. (1) The Director General or any person authorized by the Authority may examine and inspect, under condition of secrecy, any financial institution or any corporation related to any financial institution for the purpose of verifying information submitted under subsections 28B(1), (3) and (4).
(2) Where there is a conflict between the provision of this section and the provision of any other law relating to offshore financial services, the provision of this section shall prevail.
Appointment of investigating officer, powers, functions and duties
28 D. (1) For the purposes of carrying out investigation of any offence under this Act or under any other law relating to offshore financial services, the Authority may appoint, by an instrument in writing, any officer or employee of the Authority or any other suitable person to be an investigating officer.
(2) Subject to subsection (3), an investigating officer appointed under subsection (1) shall have all the powers, functions, and duties conferred on an investigating officer under this Act, and where such investigating officer is not an officer or employee of the Authority, he shall, in relation to such powers, functions and duties—
(a) be subject to; and
(b) enjoy such rights, privileges, protections, immunities and indemnities as may be specified in,
the provision of this Act or other written law applicable to an officer or employee of the Authority.
(3) An investigating officer shall be subject to the direction and control of the Authority and the Director General, or of such other officer of the Authority as may be authorized by the Authority to act on behalf of the Authority, and of any other investigating officer or officers superior to him in rank, and shall exercise his powers, perform his functions, and discharge his duties referred to in subsection (2) in compliance with such directions, instructions, conditions, restrictions or limitations as the Authority or Director General, or an officer of the Authority authorized to act on behalf of the Authority or an investigating officer superior to him in rank, may specify orally or in writing, either generally, or in any particular case or circumstance.
(4) The Director General shall have all the powers, functions and duties of an investigating officer.
(5) An investigating officer carrying out any investigation under this Part shall have the power to administer an oath or affirmation to the person who is being investigated.
(6) Any person who obstructs any investigating officer from exercising his duties under this Act shall be guilty of an offence and shall be liable on conviction to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding six months or to both.
