Development Financial Institutions Act 2002 Part IX — Miscellaneous

s 107

(Deleted by Act A1502).

Enforceable undertakings

s 107A

(1) The Minister or the Bank may accept a written undertaking given by a person in connection with a matter relating to the powers and functions of the Minister or the Bank, as the case may be. (2) The written undertaking accepted under subsection (1) may be varied or withdrawn by the person giving the undertaking with the consent of the Minister or the Bank, as the case may be. (3) If the Bank considers that a person who has given a written undertaking to the Minister or the Bank has breached any of the terms of the undertaking— (a) the Bank may apply, in relation to the undertaking given to the Bank; or (b) the Bank may recommend to the Minister to apply, in relation to the undertaking given to the Minister, to the High Court for an order under subsection (4) by way of originating summons. (4) If the High Court is satisfied that a person has breached any of the terms of the undertaking, the High Court may make any or all of the following orders: (a) an order directing the person to comply with the undertaking; (b) an order directing the person to pay to the Federal Consolidated Fund an amount up to the amount of any financial benefit that the person obtained, whether directly or indirectly, that is reasonably attributable to the breach; (c) any order that the High Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; or (d) any other order that the High Court considers appropriate. (5) The Bank shall be entitled to be heard in proceedings relating to an application made to the High Court in respect of a breach of undertaking given to the Minister.

Falsification, concealment and destruction of document

s 108

A person, with intent to deceive, in respect of a document to be produced or submitted under any provision of this Act, who makes or causes to be made a false entry, omits to make, or causes to be omitted, any entry, or alters, abstracts, conceals or destroys, or causes to be altered, abstracted, concealed or destroyed, any entry, forges a document, or makes use of or hold in his possession a false document, purporting to be a valid document, alters any entry made in any document, or issues or uses a document which is false or incorrect, wholly or partially, or misleading commits an offence and shall on conviction be liable to imprisonment for a term not exceeding eight years or to a fine not exceeding twenty-five million ringgit or to both.

Imprisonment

s 108A

Where the penalty of imprisonment has been provided for an offence under this Act, such penalty shall not apply to a body corporate convicted of the offence.

Offence by body corporate

s 109

(1) Where an offence is committed by a body corporate or an association of persons, a person— (a) who is its director, controller, officer, or partner; or (b) who is concerned in the management of its affairs, at the time of the commission of the offence, is deemed to have committed that offence unless that person proves that the offence was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances. (2) An individual may be prosecuted for an offence under subsection (1) notwithstanding that the body corporate or association of persons has not been convicted of the offence. (3) Subsection (1) shall not affect the criminal liability of the body corporate or association of persons for the offence referred to in that subsection. (4) Any person who would have committed an offence if any act had been done or omitted to be done by him personally commits that offence and shall on conviction be liable to the same penalty if such act had been done or omitted to be done by his agent or officer in the course of that agent’s business or in the course of that officer’s employment, as the case may be, unless he proves that the offence was committed without his knowledge or consent and that he took all reasonable precautions to prevent the doing of, or omission to do, such act.

Offence by an individual

s 110

Where a person is liable under this Act to a penalty for any act, omission, neglect or default, he shall be liable to the same penalty for the act, omission, neglect or default of his employee, director, controller, or agent if the act, omission, neglect or default was committed by— (a) his employee in the course of the employee’s employment; (b) his director in carrying out the function of a director; (c) his controller in carrying out the function of a controller; or (d) his agent when acting on his behalf.

Joinder of offences

s 111

Notwithstanding anything contained in any other written law, where a person is accused of more than one offence under this Act, he may be charged with and tried at one trial for any number of the offences committed within any length of time.

Seizable offence

s 112

Every offence punishable under this Act shall be a seizable offence.

Power of Governor to compound offences

s 113

(1) The Governor may, with the consent of the Public Prosecutor, offer in writing to compound any offence under this Act, or under regulations made under this Act, by accepting from the person reasonably suspected of having committed the offence such amount not exceeding fifty per cent of the amount of the maximum fine for that offence to which that person would have been liable if he had been convicted of the offence, within such time, as may be specified in the offer. (2) Any money paid to the Governor pursuant to subsection (1) shall be paid into and shall form part of the Federal Consolidated Fund. (3) An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer, or such extension of time as the Bank may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made. (4) Where an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made.

Attempts, preparations, abetments and conspiracies punishable as offences

s 114

(1) Any person who— (a) attempts to commit an offence under this Act; (b) does an act preparatory to, or in furtherance of, the commission of an offence under this Act; or (c) abets or is engaged in a criminal conspiracy to commit (as those terms are defined in the Penal Code) an offence under this Act, whether or not the offence is committed in consequence of it, commits an offence and is liable to the penalty for that offence. (2) A provision of this Act which refers to an offence under a specific provision of this Act shall be read as including a reference to an offence under subsection (1) in relation to the offence under that specific provision.

Prosecution

s 114A

No prosecution for an offence under this Act shall be instituted except with the written consent of the Public Prosecutor.

Protection in relation to disclosure of information to Bank

s 114B

(1) Where a person discloses in good faith to the Bank his knowledge or belief or any document or information that a contravention, breach or non-compliance has been committed or is about to be committed under this Act— (a) such person shall not be liable for a breach of a duty of confidentiality imposed by any law, contract or rules of professional conduct; (b) it shall be a defence in an action, a suit, prosecution or proceeding that is brought, instituted or maintained in any court or before any other authority against the person who made the disclosure to the Bank that in his belief the disclosure was necessary for the carrying into effect the provisions of this Act; and (c) no contractual or other rights or remedy may be enforced against the person on the basis of the disclosure. (2) Any document or information disclosed to the Bank under subsection (1) and the information and identity of the person making the disclosure shall be secret between the Bank and the person who made the disclosure.

Evidential provision

s 114C

In any criminal or civil proceedings under this Act— (a) any statement purported to be signed by the Governor or any other person authorized to perform the functions of the Bank on its behalf, which forms part of or is annexed to any letter, register, record or document, however expressed, described or represented; or (b) the production of a printed copy of a standard, specification, order, direction, instruction, notice, requirement, condition or restriction, letter, register, record, document or any other instrument specified or issued pursuant to this Act, shall, until the contrary is proved, be evidence of any fact stated therein.

Power of Bank to publish information

s 114D

The Bank may, where it thinks necessary, publish in such form and manner as it thinks fit, any information in relation to— (a) any enforcement action taken under this Act including criminal proceedings, compounding, civil actions and administrative actions; and (b) the outcome of the actions referred to in paragraph (a) including the outcome of any proceedings, settlement in or out of court in relation to any contravention, breach or non-compliance of the provisions of this Act.

Annual report

s 115

The Bank shall include in its annual accounts and annual report made under subsection 48(1) of the Central Bank of Malaysia Act 2009 an annual report on the working of this Act during the preceding calendar year before the end of April each year and the report shall include a summary of documents lodged with it.

Submission of information and statistics

s 116

(1) A prescribed institution and a development financial institution for which an order is made under subsection 104(1) and their subsidiaries shall submit to the Bank or such person as the Bank may specify, such document or information as the Bank may require by notice in writing within such time as the Bank may specify and the prescribed institution, the development financial institution or their subsidiary, as the case may be, shall not submit any document or information— (a) which it knows or has reason to believe, to be false or misleading in a material particular; or (b) which is inaccurate or incomplete in respect of which there is a material error or omission, or any recurring error or omission. (2) Any prescribed institution or any development institution that contravenes paragraph (1)(a) commits an offence and shall on conviction be liable to a fine not exceeding twenty-five million ringgit. (2A) Any person complying with subsection (1) shall not be treated as being in breach of any contract, agreement or arrangement. (3) (Deleted by Act A1502). (4) The Bank may require the document or information submitted under subsection (1) to be duly certified by any person including the auditor of the prescribed institution or the development financial institution, as the case may be.

Indemnity

s 117

No action, suit, prosecution or other proceedings shall lie or be brought, instituted or maintained in any court or before any authority against the Minister, the Governor, the Deputy Governor, the Bank, its director, officer or employee, or any person acting on its behalf, either personally or in his official capacity, for, or on account of, or in respect of an act done or statement made, or omitted to be done or made, or purporting to be done or made or omitted to be done or made, in pursuance of or in execution of, or intended pursuance of or execution of, this Act or any order in writing, direction, instruction or other thing issued under this Act if such act or statement was done or made, or was omitted to be done or made, in good faith.

Prohibition on receipt of gifts, commission, etc.

s 118

(1) No director, officer or agent of a prescribed institution, or any other person being a person receiving any payment or remuneration in any capacity, professional or otherwise, from such prescribed institution, shall, directly or indirectly, ask for or receive, or consent or agree to receive, any gift, commission, emolument, gratuity, money, property, token or thing of value exceeding one hundred ringgit or any service, facility or other intangible benefit, whether for his own personal benefit or advantage or for the benefit or advantage of any other person, from any person other than from the prescribed institution, for procuring or endeavouring to procure for any person— (a) any financing facility from that prescribed institution; or (b) any other thing relating to the business or affairs of that prescribed institution. (2) The provisions of subsection (1) shall not in any manner derogate from, and shall be without prejudice to, any other written law relating to corruption or illegal gratification.

Secrecy

s 119

(1) Nothing in this Act shall authorize the Bank or the Minister to direct the Bank to inquire specifically into the affairs or account of any client of a prescribed institution or a development financial institution. (2) Notwithstanding subsection (1), the Bank may inquire into the affairs or account of a customer of a prescribed institution for the purposes of exercising its powers or functions under this Act, the Financial Services Act 2013, the Islamic Financial Services Act 2013 or section 47 of the Central Bank of Malaysia Act 2009. (3) No person, who has access to any document or information relating to the affairs or account of any customer of a prescribed institution, including— (a) the prescribed institution; or (b) any person who is or has been a director, officer or agent of the prescribed institution, shall disclose to another person any document or information relating to the affairs or account of any customer of the prescribed institution. (4) Subsection (3) shall not apply to any document or information relating to the affairs or account of any customer of a prescribed institution— (a) that is disclosed to the Minister, the Bank, any officer of the Bank or any person appointed under this Act or the Central Bank of Malaysia Act 2009 for the purposes of exercising any powers or functions under this Act or the Central Bank of Malaysia Act 2009; (b) that is in the form of a summary or collection of information set out in such manner as does not enable information relating to any particular customer of the prescribed institution to be ascertained from it; or (c) that is at the time of disclosure is or has already been made lawfully available to the public from any source other than the prescribed institution. (5) No person who has any document or information which to his knowledge has been disclosed in contravention of subsection (3) shall disclose the same to any other person. (6) Any person who contravenes subsection (3) or (5) commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million ringgit or to both.

Permitted disclosure

s 120

(1) A prescribed institution or any of its directors or officers may— (a) for such purpose or in such circumstances as set out in the first column of the Fourth Schedule, disclose any document or information relating to the affairs or account of its customer to such persons specified in the second column of that Schedule; or (b) disclose any document or information relating to the affairs or account of its customer to any person where such disclosure is approved in writing by the Bank. (2) The prescribed institution or its directors or officers making a disclosure for the purposes or in such circumstances as set out in the Fourth Schedule and paragraph (1)(b), shall be subject to such conditions as may be specified by the Bank. (3) Any person who receives any document or information relating to the affairs or account of a customer as permitted under subsection (1) shall not disclose such document or information to any other person. (4) In any proceedings under paragraph 3, 4, 5, 6 or 7 of the first column of the Fourth Schedule or circumstances approved by the Bank under paragraph (1)(b), where any document or information is likely to be disclosed, in relation to the affairs or account of a customer, the court may, on its own motion, or on the application of a party to the proceedings or the customer to which the document or information relates— (a) order that the proceedings be held in camera and in such case, the document or information shall be secret as between the court and the parties thereto, and no such party shall disclose such document or information to any other person; and (b) make such further orders as it may consider necessary to ensure the confidentiality of the customer’s document or information. (5) Unless the court otherwise orders, no person shall publish the name, address or photograph of any parties to such proceedings as are referred to in subsection (4), or any document or information likely to lead to the identification of the parties thereto, either during the currency of the proceedings or at any time after the proceedings have been concluded. (6) Any person who fails to comply with the conditions imposed by the Bank pursuant to subsection (2) or contravenes subsection (3) or (5) commits an offence and shall on conviction be liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million ringgit or to both.

Decision of Minister to be final

s 121

Except as otherwise provided in this Act, any decision made by the Minister under this Act, whether an original decision by him or a decision on appeal to him from a decision of the Bank, shall be final.

Exemptions

s 122

The Minister may, upon the recommendation of the Bank, if he considers it consistent with the purposes of this Act or in the interest of the public, by order published in the Gazette, exempt any prescribed institution from any of the provisions of this Act, for such duration and subject to such condition as the Minister may specify.

Regulations

s 123

(1) The Minister may, on the recommendation of the Bank, make such regulations as are necessary or expedient to give full effect to or for carrying out the provisions of this Act. (2) Without prejudice to the generality of subsection (1), regulations may be made— (a) to provide that any act or omission in contravention of any provision of such regulations shall be an offence; and (b) to provide for the imposition of penalties for such offences with imprisonment for a term not exceeding five years or a fine not exceeding ten million ringgit or to both. (c) (Deleted by Act A1502).

Provisions relating to approvals, consents, standards, specifications, notices, requirements or directions

s 123A

(1) Unless otherwise expressly provided, any approval or consent granted, or any standards, specification, notice, requirement or direction specified or issued under this Act— (a) may be either general or specific; (b) may be amended or revoked by the Minister or the Bank, as the case may be; or (c) shall be issued or communicated in such manner as the Bank thinks appropriate and shall be valid for all purposes. (2) Any approval or consent under subsection (1) may be— (a) absolute or conditional; or (b) limited so as to expire on a specified date, unless renewed. (3) Where power is given to the Minister or the Bank under this Act to make any specification, the Minister or the Bank shall have the power to specify differently for different persons or different classes, categories or descriptions of persons.

Opportunity to make representations

s 123B

(1) Where the Minister, on the recommendation of the Bank, or the Bank proposes to take any action against any person under subsection 8(2), 26(1), 33I(4), 54(1), section 55 or subsection 106A(3), the Bank shall serve on such person a written notice of the proposed action. (2) The written notice under subsection (1) shall set out— (a) the action that the Minister or the Bank, as the case may be, proposes to take and the grounds for such action; (b) the period within which the person referred to in subsection (1) may make a written representation to the Minister or the Bank, as the case may be; (c) in the case of any proposed action under subsection 106A(3), the non-compliance or breach committed by the person; and (d) where the Bank proposes to impose a monetary penalty under paragraph 106A(3)(b), the right of the person in breach to pay, within a specified period in the notice, the monetary penalty stated in such notice. (3) The person referred to in subsection (1) shall be given a reasonable opportunity to make a written representation to the Minister or the Bank, as the case may be, by submitting such representation to the Bank within fourteen days from the date of the notice by the Bank. (4) After the expiry of the period of fourteen days from the date of the notice by the Bank and considering any written representation under subsection (3), the Minister, on the recommendation of the Bank, or the Bank, as the case may be, shall decide whether to— (a) proceed with the proposed action or a variation of such action; or (b) take no further action. (5) The Minister or the Bank, as the case may be, shall inform the person referred to in subsection (1) by a written notice of the decision under subsection (4) and the decision shall take effect from the date specified in the notice. (6) Notwithstanding subsection (1), the Minister or the Bank, as the case may be, may first take the proposed action and the opportunity to make representations shall be given immediately after the action has been taken if any delay in taking the proposed action would be detrimental to the interests of any prescribed institution, its stakeholders, the financial system or the public generally. (7) The Minister or the Bank, as the case may be, may confirm, amend or revoke the action taken under subsection (6) in consequence of the representations made under that subsection. (8) Subsection (6) shall not apply to any action taken under section 106A.

Amendment of Schedule

s 124

The Minister may, on the recommendation of the Bank, by an order published in the Gazette, amend the First Schedule, Second Schedule and Fourth Schedule.

Application of other laws

s 125

(1) Where there is a conflict or inconsistency between the provisions of this Act and that of the— * (a) Banking and Financial Institutions Act 1989; (b) Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978 [Act 202]; (c) Companies Act 1965; (d) Co-operative Societies Act 1993; or (e) the constituent documents of a prescribed institution, the provisions of this Act shall prevail. (2) Where any difficulty or doubt arises in the application of subsection (1) in relation to any particular prescribed institution, or any particular matter or circumstance, or generally, the Minister may, on the reference of the difficulty or doubt to him by the Bank, resolve the same by a direction in writing. (3) References to “this Act” in this section shall not include any regulations, order or other subsidiary legislation made under this Act. * NOTE—The Banking and Financial Institutions Act 1989 [Act 372] has since been repealed by the Financial Services Act 2013 [Act 758]—see section 271 of Act 758. *Power of the Bank to issue guidance

s 126

The Bank may issue guidance in writing consisting of such information, advice or recommendation as it considers appropriate— (a) with respect to the provisions of this Act; (b) for the purposes of regulating and supervising prescribed institutions; or (c) with respect to any other matter which, in the opinion of the Bank, is desirable to give information, advice or recommendation.

Application of measures relating to international and domestic transactions

s 127

Nothing contained in this Act shall in any manner affect or derogate from, Division 2, Part XIV of the Financial Services Act 2013 or Division 2, Part XV of the Islamic Financial Services Act 2013, and in the application of any provision of this Act to any person, the provision shall apply subject to the provisions in those Divisions and, accordingly, in the event of any conflict or inconsistency between any provision of this Act and those Divisions, the provisions in those Divisions shall prevail.

Contravention not to affect contract, agreement or arrangement

s 128

(1) Except as otherwise provided in this Act, or in pursuance of any provision of this Act, no contract, agreement or arrangement entered into in contravention of any provision of this Act shall be void solely by reason of such contravention. 2015 w.e.f. 31 January 2016. (2) Subsection (1) shall not affect any criminal liability of any person for an offence under this Act in respect of such contravention. *NOTE—General Savings—see section 111 of the Development Financial Institutions (Amendment) Act

s 129

(Deleted by Act A1502).

Savings

s 130

(1) Any requirement for the approval of the Minister or the Bank, as the case may be, under this Act shall be deemed to have been given in accordance with the provisions of this Act and shall continue to remain in full force and effect in relation to the persons to whom it applies until modified, rescinded or revoked in accordance with the provisions of this Act. (2) The chief executive officer or director of a prescribed institution shall, on the commencement date, be deemed to have complied with the Minimum Criteria for Appointment in the First Schedule and notwithstanding any disqualification under section 7, shall continue to remain in office until the expiry of his term of appointment.