Fees
Open ↗(1) The Authority may prescribe fees in respect of any services provided by the Authority under this Act and in respect of any fee required to be prescribed under this Act.
(2) A Labuan foundation shall pay such annual fee as may be prescribed, on or before each anniversary of the date of its registration.
(3) If a Labuan foundation fails to pay the annual fee referred to in subsection (2) on or before the expiration of a period of six months from the annual fee payment date, there shall be payable in addition to the annual fee an amount equivalent to fifty percent of the annual fee.
(4) Any fees collected by or paid to the Authority under this Act shall form part of and credited into the Fund established under section 29 of the Labuan Financial Services Authority Act 1996.
Secrecy
Open ↗(1) No person who has by any means access to any record, book, register, correspondence, document, material or information, relating to the business and affairs of the Labuan foundation, shall give, divulge, reveal, publish or otherwise disclose to any person
such record, book, register, correspondence, document, material or information.
(2) All proceedings, other than criminal proceedings, relating to any Labuan foundation commenced in any Court under the provisions of this Act and any appeal from such proceedings, 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.
(3) The provisions of subsection (1) shall not apply where disclosure—
(a) is required pursuant to an order by any court of competent jurisdiction in any proceedings, where the order has been obtained by an ex-parte application, the Labuan foundation may notify the person affected by the order and upon receipt of such notification, the affected person may file the necessary application to the court to contest the order or otherwise comply with the order accordingly;
(b) is required for the purpose of the performance of the supervisory function of the Authority as may be provided for under the Labuan Financial Services Authority Act 1996;
(c) is pursuant to section 22 of the Labuan Business Activity Tax Act 1990; or
(d) is with the consent of the Labuan foundation.
(4) Subject to subsection (3), any person who contravenes subsection (1) commits an offence and shall, upon conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding three years or to both.
(5) 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.
Right to information
Open ↗(1) Subject to the other provisions of this section, the officer or secretary of a Labuan foundation shall, on receipt of a request, provide accurate information as to the state and amount of the property of the Labuan foundation and the administration of the Labuan foundation—
(a) to the Court;
(b) to the Authority pursuant to the provisions of the Labuan Financial Services Authority Act 1996; and
(c) to the founder, council member, supervisory person, or beneficiary, unless the officer has reason to believe that such person is making the request under duress.
(2) Notwithstanding the terms of the constituent document, the Court may, on an application made to the Court, restrict the rights of the founder, council member, supervisory person, beneficiary or any other person to information relating to the Labuan foundation or may make such other order as it thinks fit.
(3) Where any founder, council member, supervisory person, officer, secretary, or beneficiary is required by or under this Act to submit, produce or provide to the Authority any information, statistic, return or document, the Authority may specify that it shall be submitted, produced or provided in such form and manner and within such period or at such intervals or times, not inconsistent with any provision of this Act or the regulations made under this Act, as the Authority may set out in the specification, and the founder, council member, supervisory person, officer, secretary, or beneficiary shall not submit, produce or provide as true and accurate any information, statistic, return or document which he knows, or has reason to believe, to be false, inaccurate or misleading.
(4) Any person who fails to comply with subsection (3) commits an offence and shall, upon conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding three years or to both.
Confidentiality
Open ↗(1) Except as is required, permitted or otherwise provided by this Act, the Court, or the constituent document of the Labuan foundation or as may be necessary for the purposes of the Labuan foundation, and notwithstanding the provisions of any other law—
(a) every council member, supervisory person, officer, or secretary of a Labuan foundation shall at all times regard and deal with all documents and information relating to a Labuan foundation as secret and confidential; and
(b) no council member, supervisory person, officer, or secretary of a Labuan foundation shall at any time be required to produce to or before any Court, tribunal, board, committee of inquiry or any other authority or to divulge to any such authority any matter or thing coming to his notice or being in his possession for any reason, where such matter or thing relates to a Labuan foundation.
(2) Any council member, supervisory person, officer, or secretary of a Labuan foundation who, except as is required, permitted or otherwise provided by this Act, the Court, or the constituent document, at any time communicates or attempts to communicate any matter or thing relating to a Labuan foundation to any person commits an offence and shall, upon conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding three years or to both.
Prosecution
Open ↗No prosecution in respect of any offence under this Act shall be instituted except by or with the written consent of the Public Prosecutor.
Offences relating to the documents of Labuan foundation
Open ↗Any person who makes a statement in any document, material, evidence or information which is required to be kept or which is required to be served on the Authority under this Act that is false or misleading with respect to any material fact or that omits to state any material fact commits an offence and shall, upon conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding three years or to both.
Offences by body corporate
Open ↗(1) If a body corporate commits an offence under this Act, any person who at the time of the commission of the offence was a director or officer of the body corporate or was purporting to act in any such capacity or was in any manner or to any extent responsible for the management of any of the affairs of the body corporate or was assisting in such management—
(a) may be charged severally or jointly in the same proceedings with the body corporate; and
(b) if the body corporate is found to have committed the offence, shall be deemed to have committed that offence unless, having regard to the nature of his functions in that capacity and to all circumstances, he proves—
(i) that the offence was committed without his knowledge, consent or connivance; and
(ii) that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.
(2) If any person would be liable under this Act to any punishment or penalty for his act, omission, neglect or default, he shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of his, or of the employee of the agent, if the act, omission, neglect or default was committed—
(a) by that person’s employee in the course of his employment;
(b) by the agent when acting on behalf of that person; or
(c) by the employee of the agent in the course of his employment by the agent or otherwise on behalf of the agent acting on behalf of that person.
Power to compound
Open ↗(1) The Authority may, with the consent in writing of the Public Prosecutor, compound any offence committed by any person under this Act by making a written offer to the person suspected to have committed the offence to compound the offence upon payment to the Authority of an amount of money not exceeding fifty per centum of the amount of maximum fine for that offence within such time as may be specified in his written offer.
(2) 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 if the amount specified in the offer is not paid within the time specified in the offer or such extended time as the Authority 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 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, and any document or thing seized in connection with the offence may be released or forfeited by the Authority, subject to such terms and conditions as he deems fit to impose in accordance with the conditions of the compound.
(4) All sums of money received by the Authority under this section shall be paid into the Federal Consolidated Fund.
Power to impose administrative penalties
Open ↗(1) The Authority may impose administrative penalties on any person who fails to comply with any provisions of this Act.
(2) The Authority shall, before making a decision to impose any administrative penalty on a person, serve on him a written notice giving him an opportunity to show cause why the administrative penalty should not be imposed on him.
(3) If a satisfactory explanation is not received within such period as may be specified in the written notice, the Authority may impose an administrative penalty in an amount not exceeding five hundred ringgit for each day of non-compliance and such amount shall not in total exceed the sum of ten thousand ringgit.
(4) Where a person has failed to pay an administrative penalty imposed by the Authority under subsection (3), the penalty imposed by the Authority may be sued for and recovered as a debt due to the Authority.
General power to prescribe and specify
Open ↗Where anything is required to be prescribed or specified under this Act and no mode is mentioned, it shall be prescribed or specified,
as the case may be, in writing, and different provisions may be made for different persons, classes, categories or descriptions of persons.
Power of Minister to make regulations
Open ↗(1) The Minister may, on the recommendation of the Authority, make regulations as may be necessary or expedient for the better carrying out of the provisions of this Act.
(2) The regulations made under this Act may provide for any act or omission in contravention of the regulations to be an offence and may provide for penalties of a fine not exceeding twenty five thousand ringgit.
Power of Minister to amend Schedule
Open ↗(1) The Minister may, on the recommendation of the Authority, from time to time by order published in the Gazette, vary, delete, add to, substitute for, or otherwise amend the Schedule and upon such publication, such Schedule as varied, deleted, added to, substituted for or otherwise amended, shall come into full force and effect and shall be deemed to be an integral part of this Act as from the date of such publication, or from such later date as may be specified in the order.
(2) The Minister may, in varying, deleting or substituting any of the Schedules referred to in subsection (1), impose such terms and conditions as he thinks necessary.
Power of Minister to exempt
Open ↗The Minister may, on the recommendation of the Authority, exempt any Labuan foundation from any of the provisions of this Act and may, in granting such exemption, impose such terms and conditions as the Minister thinks fit.
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 made under this Act, application may be made to the Authority 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 its directions shall be a valid performance of such act or step.
Application of the Labuan Financial Services Authority Act 1996
Open ↗In the event of any conflict or inconsistency between the provisions of this Act and the Labuan Financial Services Authority Act 1996, the provisions of the Labuan Financial Services Authority Act 1996 shall prevail.
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).
