Malaysia legislation

Section 58

of *SECURITIES INDUSTRY (CENTRAL DEPOSITORIES) ACT 1991

Section 58

Power of Court to make certain orders

(a)

on an application by the Commission, it appears to the

High Court that—

(i)

there is reasonable likelihood that any person will contravene a relevant requirement;

(ii)

any person has contravened a relevant requirement; or

(iii)

any person has contravened a relevant requirement and that there are steps which could be taken to remedy the contravention or mitigate the effect of such contravention, including making restitution to any other person aggrieved by such contravention, whether or not that person has been charged with an offence in respect of the contravention or whether or not a contravention has been proved in a prosecution;

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(b)

on an application by an exchange holding company or a central depository, as the case may be, it appears to the

High Court that—

(i)

any person has contravened a relevant requirement; or

(ii)

any person has contravened a relevant requirement and that there are steps which could be taken to remedy the contravention or mitigate the effect of such contravention; or

(c)

on an application by any person aggrieved by an alleged contravention by another person of a relevant requirement, it appears to the High Court that—

(i)

the other person has contravened the relevant requirement; and

(ii)

the applicant is aggrieved by the contravention, the High Court may, without prejudice to any orders it would be entitled to make otherwise than pursuant to this section, make one or more or the following orders:

(aa) in the case of persistent or continuing breaches of this

Act, or of the rules of a central depository, an order restraining a person from acting as an authorized depository agent or from holding himself out as so acting;

(bb) an order restraining the person from acquiring, disposing of or otherwise dealing with assets which the

High Court is satisfied such person is reasonably likely to dispose or otherwise deal with;

(cc)

an order restraining the exercise of any voting or other rights attached to any securities that are specified in the order;

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(dd)

an order appointing a receiver of the property of an authorized depository agent or of property that is held by an authorized depository agent for or on behalf of another person whether on trust or otherwise;

(ee) an order vesting securities that are specified in the order in the Commission or a trustee appointed by the High

Court;

(ff) an order declaring the whole or any part of a contract relating to securities including a contract for the acquisition or disposal of securities, to be void, and if the High Court thinks fit, to have been void ab initio or at all times on or after a specified date before the order is made;

(gg) where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do any act or thing that he is required to do under a relevant requirement, an order requiring such person to do such act or thing;

(hh) in a case of a contravention by a person of the rules of a central depository, an order giving directions concerning compliance with or enforcement of those rules to—

(i)

the person; and

(ii)

if the person is a body corporate, the directors of the body corporate;

(ii)

in a case where the person is a director, an order removing him from office and that he be barred from becoming a director of any other public company for such period of time as may be determined by the High

Court;

(iia) an order restraining the contravention;

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(iib) an order requiring that person, or any other person who appears to have been knowingly involved in the contravention, to take such steps as the High Court may direct to remedy it or mitigate its effect, including making restitution to any other person aggrieved by such contravention;

(jj)

for the purpose of securing compliance with any other order under this section, an order directing a person to do or refrain from doing a specified act; and

(kk) any ancillary order deemed to be desirable in consequence of the making of an order under any of the preceding provisions of this subsection.

(2)

The High Court may, before making an order under subsection (1), direct that notice of the application be given to such persons as it thinks fit or direct that notice of the application be published in such manner as it thinks fit, or both.

(3)

Where an application is made to the High Court for an order under paragraph (1)(gg), the High Court may grant the order—

(a)

where the High Court is satisfied that the person has refused or failed to do the required act or thing, whether or not it appears to the High Court that the person intends to again refuse or fail, or continue to refuse or fail, to do the required act or thing; or

(b)

where it appears to the High Court that in the event that such an order is not granted it is likely that the person will refuse or fail to do the required act or thing, whether or not the person has previously failed or refused to do the act or thing and whether or not there is any imminent risk of damage to any person if the person required to do such an act or thing refuses or fails to do so.

(4)

Where an application for an order under subsection (1) is made by the Commission or any person duly authorized by the

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Commission, or a central depository, the High Court shall not, as a condition of the grant of the order, require any undertaking as to damages to be given by or on behalf of the Commission or the central depository.

(5)

A person appointed by order of the High Court under paragraph (1)(dd) as a receiver of the property of an authorized depository agent—

(a)

may require the authorized depository agent to deliver to the receiver any property of which he has been appointed receiver or to give to the receiver all information concerning that property that may reasonably be required;

(b)

may acquire and take possession of any property of which he has been appointed receiver;

(a)

may deal with, including dispose of any property that he has acquired or of which he has taken possession in any manner in which the authorized depository agent might lawfully have dealt with the property; and

(b)

shall have such other powers in respect of the property as the High Court specifies in the order.

(6)

For the purposes of paragraph (1)(dd) and subsection (5)

―property‖, in relation to an authorized depository agent, includes moneys, securities, and documents of title to securities or other property entrusted to or received on behalf of any other person in the course of or in connection with the business of the authorized depository agent.

(7)

The Commission or a trustee appointed by an order of the

High Court under paragraph (1)(ee)—

(a)

may require the authorized depository agent to deliver to the Commission or trustee, as the case may be, the securities specified in the order and to give to the

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Commission or trustee all information concerning the securities that may reasonably be required;

(b)

may acquire and take possession of the securities specified in the order;

(c)

may deal with, including dispose of, the securities specified in the order in any manner as it deems fit; and

(d)

shall have such other powers in respect of the securities as may be specified in the order.

(8)

The proceeds of the dealing in or disposal of property under paragraph (5)(c) and of securities under paragraph (7)(c) shall be paid into the High Court, and any person claiming to be beneficially entitled to the whole or any part of such proceeds may, within thirty days of such payment into the High Court, apply to the High Court for payment out of the proceeds to him.

(9)

A person who contravenes or fails to comply with—

(a)

an order under subsection (1) that is applicable to him;

(b)

a requirement of a receiver appointed by order of the

High Court under paragraph (1)(dd); or

(c)

a requirement of the Commission or trustee appointed by order of the High Court under paragraph (1)(ee), shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding ten years or to both.

(10)

Subsection (9) does not affect the powers of the High Court in relation to the punishment for contempt of court.

(11)

The High Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

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(12)

For the purposes of this section, ―relevant requirement‖—

(a)

in relation to an application by the Commission under this section, means a requirement—

(i)

which is imposed by or under this Act or any securities laws;

(ii)

which is imposed as a condition or restriction of any approval that is given under or pursuant to this Act;

(iii)

which is imposed by or under the rules of a central depository; or

(iv)

which is imposed by or under any other law and the contravention of which constitutes an offence which the Commission has power to prosecute with the consent in writing of the Public

Prosecutor;

(b)

in relation to an application by the exchange holding company or central depository, means a requirement which is imposed by or under the rules of the central depository, as the case may be; and

(c)

in relation to an application by the aggrieved person, means a requirement—

(i)

which is imposed by or under this Act;

(ii)

which is imposed as a condition or restriction of any approval that is given under or pursuant to this Act; or

(iii)

which is imposed by or under the rules of a central depository.

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(13)

An application made pursuant to this section shall not prejudice any other action that may be taken by the Commission, exchange holding company, central depository or aggrieved person, as the case may be, under any securities laws, any other law or rules.

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