Receivership and winding up
Open ↗(1) The provisions of Parts VIII and X of the Companies Act 1965 (in so far as they relate to a company limited by shares) shall apply to the receivership and winding up of a Langkawi company, subject to such modifications as the Minister may make by order, and in particular references to a “company” shall be taken as references to a Langkawi company.
(2) The Companies (Winding-Up) Rules 1972 [P.U. (A) 289/1972] shall also apply to the winding up of a Langkawi company, subject to such modifications as the Minister may make by order, and in particular references to a “company” shall be taken as references to a Langkawi company.
(3) In this section, “modification” includes amendment, adaptation, alteration, variation, addition, division, substitution or exclusion.
Service of documents on Langkawi companies
Open ↗Any document may be served on a Langkawi company by leaving it at, or sending it by post to, the registered office of the company, or if the registered office of the company ceases to exist, the document may be served by leaving it at or sending it by post to any place of business established by the company in Langkawi.
Transfer from Langkawi
Open ↗(1) A Langkawi company may, upon obtaining the approval of the Registrar and within two months from the date on which the approval is obtained, apply to the proper officer of another country or of a jurisdiction within such a country, by the laws of which such transfer is authorized, for an instrument transferring a company as if it had been incorporated under the laws of that other country or jurisdiction, and on the date of the instrument of transfer, the company shall, subject to the provisions of this section, become a company under the laws of that country or jurisdiction and be domiciled in that country or jurisdiction.
(2) A Langkawi company shall not apply to the Registrar for approval under subsection (1) unless—
(a) the application is authorized—
(i) where the company has a share capital, by the holders of not less than three fourths of the shares of each class;
(ii) by the holders of not less than three-fourths of the company’s debentures (if any) of each class; and
(iii) by all the directors of the company; and
(b) the company, not less than thirty days before applying to the Registrar for such approval, has published a notice in a newspaper circulating generally in Langkawi of its intention to make the application,
and an application shall not be accepted unless it is accompanied with an affidavit sworn by a director of the company in which are set out—
(c) the names and addresses of its creditors and the total amount of its indebtedness to the creditors; and
(d) a statement to the effect that the proposed transfer of domicile is unlikely to be detrimental to the rights or proper interests of any of the company’s members, debenture holders or creditors.
(3) The Registrar shall not give his approval to a Langkawi company applying for transfer to another country or jurisdiction unless he is satisfied that—
(a) the requirements of subsection (2) have been complied with; and
(b) the company has complied with any provision of this Act which it should have complied with,
and the Registrar may grant his approval on such conditions as he thinks necessary to safeguard the rights and proper interests of any member, debenture holder or creditor of the company or any class of such members, debenture holders or creditors and upon the company taking such steps as he considers necessary to remedy any failure to comply with any provision of this Act.
(4) Upon an instrument transferring the company to another country or jurisdiction being executed by the proper officer of that other country or jurisdiction, the company shall immediately notify the Registrar of the details and the company shall be deemed to have ceased to be a company incorporated in Langkawi from the date of its transfer to that other country or jurisdiction takes effect and the Registrar shall remove its name from the register:
Provided that nothing in this subsection shall take away or affect the jurisdiction of any Court (whether the High Court or otherwise) to hear and determine any proceedings commenced therein by or against the company before it ceased to be a company incorporated in Langkawi.
(5) Where a Langkawi company notifies the Registrar under subsection (4) that an instrument transferring the company to another country or jurisdiction has been executed by the proper officer of that other country or jurisdiction and that notification is false, then, notwithstanding that the Registrar has removed the name of the company from the register in pursuance of that subsection—
(a) the liability (if any) of any officer or member of the company shall continue and may be enforced as if the company were still registered under this Act; and
(b) the company shall be liable to be wound up pursuant to the provisions of this Act as if it were still registered under this Act.
Costs of proceedings before Court
Open ↗In respect of any proceedings before the Court under this Act, the Court may, at its own discretion, direct that the costs of one party be paid in such amount and by such other party as it thinks just.
Security for costs
Open ↗Where a Langkawi company is a plaintiff in any Court action or other legal proceedings, the Court may, at any time, require sufficient security to be given for costs and stay all proceedings until the security is given.
Disposal of shares of shareholder whose whereabouts are unknown
Open ↗(1) Where after exercising reasonable diligence, a Langkawi company is unable to discover the whereabouts of a registered shareholder for a period of not less than ten years, the company may cause a notice to be published in a daily newspaper circulating
in the place shown in the register of members as the address of the shareholder stating that the shares, after the expiration of one month from the date of the notice, will be liable to be forfeited to the Registrar.
(2) If after the expiration of one month from the date of a notice under subsection (1), the whereabouts of the shareholder remain unknown, the company may transfer the shares held by the shareholder in the company to the Registrar and for that purpose may execute for and on behalf of the owner a transfer of those shares to the Registrar; and the person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but shall, notwithstanding the forfeiture, remain liable to pay to the company all moneys which, at the date of forfeiture, were payable by him to the company in respect of the shares, but his liability shall cease if and when the company receives payment in full of all such moneys in respect of the shares.
Power to grant relief
Open ↗(1) In any proceedings for negligence, default, breach of duty or breach of trust against a person to whom this section applies, if it appears to the Court before which the proceedings are taken that he is or may be liable in respect thereof but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case including those connected with his appointment, he ought fairly to be excused for the negligence, default , breach of duty or breach of trust, the Court may relieve him either wholly or partly from his liability on such terms as the Court thinks fit.
(2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court for relief, and the Court shall have the same power to relieve him under this section as it would have had if it had been a Court before which proceedings against him for the negligence, default, breach of duty or breach of trust had been brought.
(3) The persons to whom this section applies are—
(a) officers of a Langkawi company;
(b) persons employed by a Langkawi company as auditors, whether or not they are officers of the company;
(c) experts within the meaning of this Act; and
(d) all persons, including receivers and managers or liquidators, who are appointed or directed by the Court or the Registrar to carry out any duty under this Act in relation to a Langkawi company.
Irregularities in proceedings
Open ↗(1) No proceedings under this Act shall be invalidated by any omission, defect, error, irregularity or deficiency of notice or time unless the Court is of the opinion that substantial injustice has been or may be caused thereby which cannot be remedied by any order of the Court and the Court may, if it thinks fit, make an order or direction declaring that such proceedings are valid notwithstanding any such omission, defect, error, irregularity or deficiency.
(2) Without affecting the generality of subsection (1) or of any other provisions of this Act, where any omission, defect, error, irregularity or deficiency, including the absence of a quorum at any meeting of the Langkawi company, has occurred in the management or administration of a Langkawi company whereby any breach of the provisions of this Act has occurred, or whereby there has been default in the observance of the memorandum or articles of association of the company, or whereby any proceedings at or in connection with any meeting or purported meeting have been rendered ineffective, including the failure to make or lodge any declaration of solvency, the Court—
(a) may, either of its own motion or on an application lodged by any interested person, make such order or direction as it thinks fit to rectify or cause to be rectified or to negative or modify or cause to be negatived or modified the consequences in law of any such omission, defect, error, irregularity or deficiency, or to validate any act, matter or thing rendered invalid by or as a result of any such omission, defect, error, irregularity or deficiency;
(b) shall, before making any such order or direction, satisfy itself that such an order or direction would not do injustice to the company or to any member or creditor of the company, or any other person;
(c) where any such order or direction is made, may give such ancillary or consequential directions as it thinks fit; and
(d) may determine what notice or summons is to be given to other persons of the intention to make any such application or of the intention to make such an order or direction and whether it should be advertised in any newspaper.
(3) For the purposes of subsection (2), “meeting”, in relation to a Langkawi company, includes—
(a) a meeting of the company;
(b) a meeting of any class of members of the company;
(c) a meeting of the debenture holders or any class of debenture holders of the company;
(d) a meeting of the directors of the company or of any committee of the directors; and
(e) a meeting of the creditors or any class of the creditors of the company.
(4) The Court, whether the company is in the process of being wound up or not, may extend or shorten any time for doing any act or taking any proceedings allowed or limited by this Act or the regulations on such terms, if any, as the justice of the case may require, and any such extension may be ordered although the application for the same is not made until after the time originally allowed or limited.
Translation of instruments
Open ↗(1) Where under this Act a Langkawi company or foreign Langkawi company is required to lodge with the Registrar an instrument, certificate, contract or document or a certified copy thereof and the same is not written in the national language or in the English language, the company shall lodge at the same time with the Registrar a certified translation thereof in the national language or in the English language.
(2) Where under this Act a Langkawi company or foreign Langkawi company is required to make available for public inspection any instrument, certificate, contract or document and the same is not written in the national language or in the English language, the company shall keep at its registered office in Langkawi a certified translation thereof in the national language or in the English language.
(3) Where any accounts, minute books or other records of a Langkawi company or foreign Langkawi company required to be kept under this Act are not kept in the national language or in the English language, the directors of the company shall cause a true translation in the national language or in the English language of such accounts, minute books and other records to be made from time to time at intervals of not more than seven days and shall cause such translations to be kept with the original accounts, minute books and other records for so long as the original accounts, minute books and other records are required to be kept under this Act.
Dividends payable from profits only
Open ↗(1) No dividends shall be payable to any shareholder of any Langkawi company except out of profits.
(2) Every director of a Langkawi company who wilfully pays or permits to be paid any dividend out of what he knows is not profit shall be guilty of an offence against this Act.
Use of word “Corporation”, etc.
Open ↗Every person who carries on business in Langkawi under any name or title which incorporates the word or words “Berhad”, “Corporation”, “Incorporated”, “Limited”, “Societe Anonyme”, “Sociedad Anonima”, “Aktiengesellschaft”, “Naamloze Vennootschap”, “Perseroan Terbatas” or any other word or words in the national language of any country which connotes a joint stock company limited by shares, or any abbreviation of those words shall, unless it is a Langkawi company, foreign Langkawi company duly incorporated or registered under this Act, domestic company or incorporated body, be guilty of an offence against this Act.
General penalty
Open ↗(1) A person who—
(a) does that which by or under this Act he is forbidden to do;
(b) does not do that which by or under this Act he is required or directed to do; or
(c) otherwise contravenes or fails to comply with any provision of this Act,
shall be guilty of an offence against this Act.
(2) A person who is guilty of an offence against this Act shall be liable on conviction to a penalty expressly provided for the offence, or if no penalty is expressly provided, to a fine not exceeding ten thousand ringgit.
(3) The penalty, pecuniary or otherwise, set out in, or at the foot of, any section or part of a section of this Act, shall indicate that the offence is punishable upon conviction by a penalty not exceeding that so set out, and where the penalty is expressed to apply to a part only of the section, it shall apply to that part only.
Default penalty
Open ↗(1) Where in or at the foot of any section or part of a section of this Act there appears the expression “Default penalty”, it shall indicate that any person who is convicted of an offence against this Act in relation to that section or part of that section shall be guilty of a further offence against this Act if the offence continues after he is so convicted and liable to an additional penalty for each day during which the offence so continues of not more than the amount expressed in the section or part of the section as the amount of the default penalty or, if an amount is not so expressed, of not more than ten thousand ringgit.
(2) Where any offence is committed by a person by reason of his failure to comply with any provision of this Act by or under which he is required or directed to do anything within a particular period, that offence, for the purposes of subsection (1),
shall be deemed to continue so long as the thing so required or directed to be done by him remains undone, notwithstanding that the period has elapsed.
(3) For the purposes of any provision of this Act which provides that an officer of a Langkawi company, foreign Langkawi company or guarantor company who is in default is guilty of an offence against this Act or is liable to a penalty, the expression “officer who is in default” or any like phrase means any officer of the company who knowingly and wilfully—
(a) is guilty of the offence; or
(b) authorizes or permits the commission of the offence.
Prosecution
Open ↗No prosecution for an offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.
Compounding of offences
Open ↗(1) The Registrar may, with the consent of the Public Prosecutor, compound any offence committed by any person against this Act or the regulations and prescribed by the Minister to be a compoundable offence by regulations by making a written offer to the person reasonably suspected of having committed the offence to compound the offence upon payment to the Registrar of an amount of money not exceeding fifty per centum of the amount of maximum fine for that offence within the time as specified in the offer.
(2) An offer under subsection (1) may be made at any time after the offence has been committed but before any prosecution for the offence has been instituted, and where the amount specified in the offer is not paid within the time as specified in the offer, or within such extended time as the Registrar may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.
(3) Where the 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.
Procedure where none laid down
Open ↗In the event that any act or step is required or permitted to be done or taken under this Act and no form is prescribed or procedure laid down either in this Act or the regulations, an application may be made to the Registrar for directions as to the manner in which the same may be done or taken, and any act or step done or taken in accordance with his directions shall be a valid performance of such act or step.
Regulations
Open ↗(1) The Minister may from time to time make regulations prescribing all matters and things required or authorized by this Act to be prescribed or provided, or which may be necessary or expedient, for the carrying out of or giving full effect to the provisions of this Act.
(2) Without prejudice to the generality of subsection (1), regulations may be made for prescribing—
(a) the forms to be used for the purposes of this Act and the matters to be specified in such forms;
(b) the forms of applications and other notices under this Act;
(c) the fees and charges to be paid under this Act and the penalties for late payment, or delegating the power of fixing such fees, charges and penalties to prescribed persons or bodies;
(d) the manner in which accounting and other records required to be made or kept under this Act are to be made or kept, and the declarations, reports, annexures, schedules or details which are to accompany or to be attached to such accounting or other records;
(e) the offences which may be compounded and the procedure for the compounding of such offences; and
(f) any other matter which is expedient or necessary for the purposes of this Act.
Prohibition by Minister
Open ↗(1) The Minister may without assigning reasons therefore, issue, by notification in the Gazette, the Minister’s direction—
(a) prohibiting the initial incorporation of any Langkawi company or class of companies;
(b) prohibiting the initial registration of a foreign Langkawi company; or
(c) directing any Langkawi company to cease to carry on its business or part of its business either immediately or within such time as may be specified in the direction.
(2) A direction made under this section may be revoked or varied by the Minister.
Secrecy
Open ↗(1) All proceedings (other than criminal proceedings) relating to any Langkawi company or foreign Langkawi company commenced in any Court, either under the provisions of this Act or for the purpose solely of determining the rights or obligations of officers, members or holders of debentures, and any appeal therefrom, shall, unless the Court otherwise orders, be heard in camera and no details of the proceedings shall be published by any person without leave of the Court.
(2) Where—
(a) in any proceedings for the winding up of a Langkawi company the Court is satisfied that the company or any officer thereof has failed to comply with any provisions of this Act; or
(b) a Langkawi company or any officer thereof is convicted by the Court of any offence under this Act,
the Court may, if it thinks fit, order that the records, books and registers of that company and the entries in the Registrar’s registers and records relating to that company be opened to the public for inspection.
(3) A person who, with respect to any Langkawi company, otherwise than for the purpose of the administration of this Act
or the carrying on of the business of the company in Langkawi or elsewhere—
(a) divulges;
(b) attempts, offers or threatens to divulge; or
(c) induces or attempts to induce other persons to divulge, any information concerning or touching upon—
(d) the shareholding in, or beneficial ownership of, any share or shares in such company;
(e) the management of such company; and
(f) any of the business, financial or other affairs or transactions of the company,
shall be guilty of an offence against this Act.
(4) Nothing in this section shall prevent any Court from exercising its discretion to require any person to produce any document or to give any evidence in any proceedings before the Court which is relevant to those proceedings.
Power of exemption
Open ↗The Minister may, on the recommendation of the Registrar, on an application in writing, exempt any Langkawi company or foreign Langkawi company, or any person or class of persons, or class of Langkawi companies or foreign Langkawi companies from any of the provisions of this Act and may, in granting such exemption, impose such terms and conditions as the Minister thinks fit.
Fees, penalties and striking off
Open ↗(1) A Langkawi company shall pay to the Registrar the annual fee due on the annual fee payment date.
(2) If a Langkawi company fails to pay the annual fee referred to in subsection (1) on or before the expiration of a period of six months from the annual fee payment date, then there shall be payable in addition to the annual fee an amount equivalent to fifty per cent of the annual fee.
(3) If a Langkawi company fails to pay the annual fee and the additional amount specified in subsection (2) on or before the expiration of a period of one month from the date of expiration of the period of six months specified in subsection (2), the Registrar may after the expiration of the period of one month send to the secretary of the Langkawi company a written notice that the name of the Langkawi company shall be struck off the register if the annual fee and the amount specified in subsection
(2) are not paid within one month from the date of the notice or such extended period as may be allowed by the Registrar.
(4) If the Langkawi company fails to pay the annual fee and the additional amount specified in subsection (2) within one month from the date of the notice or the extended period as may be allowed by the Registrar under subsection (3), the Registrar may strike the name of the Langkawi company off the register.
(5) Notwithstanding that the name of a Langkawi company has been struck off the register under this section, the Langkawi company shall remain liable for all claims, debts, liabilities and obligations of the Langkawi company, and the striking off shall not affect the liability of any of its members, directors, officers or agents under this Act or any other law.
(6) The striking off of the name of a Langkawi company from the register under this section shall not be affected by any failure on the part of the Registrar to serve a notice on the secretary or to publish a notice in the Gazette.
(7) Subsections (2) to (5) do not apply to a Langkawi company in the process of being wound up and dissolved.
Company struck off liable for fees, etc.
Open ↗A Langkawi company incorporated under this Act shall continue to be liable for all fees, including annual fees and penalties payable under this Act, including the additional amount as specified in subsection 124(2), notwithstanding that the name of the Langkawi company has been struck off the register; and such fees, including the annual fees and penalties, shall have priority over all other claims against the assets of the Langkawi company.
Fees payable to Registrar
Open ↗The Registrar may refuse to take any action required of him under this Act for which a fee is prescribed until all fees have been paid.
Effect of striking off
Open ↗(1) Where the name of a Langkawi company has been struck off the register, the Langkawi company, and the directors, members, liquidators and receivers of the company, shall not—
(a) commence any legal proceedings, carry on any business or in any way deal with the assets of the Langkawi company;
(b) defend any legal proceedings, make any claim or claim any right for, or in the name of, the Langkawi company; or
(c) act in any way with respect to the affairs of the Langkawi company.
(2) Notwithstanding subsection (1), where the name of the Langkawi company has been struck off the register, the Langkawi company, or a director, member, liquidator or receiver of the company, may—
(a) apply to the Registrar for the Langkawi company to be registered afresh;
(b) continue to defend proceedings that were commenced against the Langkawi company prior to the date of the striking off; and
(c) continue to carry on legal proceedings that were instituted on behalf of the Langkawi company prior to the date of striking off.
(3) The fact that the name of a Langkawi company has been struck off the register does not prevent—
(a) the Langkawi company from incurring liabilities;
(b) any creditor from making a claim against the Langkawi company and pursuing the claim through to judgement or execution; or
(c) the appointment by the Court of an official liquidator for the Langkawi company under Parts VIII and X of the Companies Act 1965, in so far as they relate to a Langkawi company limited by shares.
Schedule
[Section 25]
powers of langkawi company
1. To carry on any business, other than a business which is prohibited by this Act or the regulations from being carried on, which may seem to the company capable of being conveniently carried on or calculated directly or indirectly to enhance the value of or render profitable any of the company’s property or rights.
2. To enter into or be a party to any transaction or document.
3. To acquire, hold, dispose of or deal with any information or rights or property of any kind.
4. To acquire, hold, dispose of or deal with the whole or any part of the undertaking of any other company, association or business.
5. To dispose of or otherwise deal with the whole or any part of its undertaking or business.
6. To assume any duties, obligations or liabilities.
7. To acquire any rights or interests.
8. To provide or procure provision of any services.
9. To lend and borrow.
10. To procure its registration or recognition in any place outside Langkawi.
11. To create and extinguish liabilities and rights and interests.
12. To issue shares and debentures, and to take shares and debentures and to redeem and forfeit the same.
13. To employ or retain persons in and about its business or the business of any other company or person.
14. To give indemnities and guarantees and obtain indemnities and guarantees.
15. To take out insurance of all kinds whether over the property or rights of the company or not.
16. To promote any other company.
17. To make gifts, donations and wages which may lawfully be made, whether the same may, or may not, be for the purpose of advancing its business.
18. By way of settlement or other dealing or disposition, to give the right to a person not a member of the company to share in the whole or any part of its gains or profits to the exclusion of its members, provided that in exercising such power no distribution of gains or profits shall be made pursuant to such settlement, disposition or other dealing which would exceed the amount properly distributable as a dividend or properly capable of being returned as capital surplus to some or to all of the members of the company.
19. To do any of the things which it may do in association with any other person and as principal or agents or as trustee or for its own benefit.
20. To promote any other business.
21. To do all such things as are incidental or conducive to the exercise of the powers of the company.
22. To do all other things which are not prohibited by or under this Act or the regulations.
LAWS OF MALAYSIA
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
