Malaysia legislation
Section 10
Section 10
New sections 139ZN, 139ZO, 139ZP, 139ZQ and 139ZR
Part IIIA of the principal Act is amended in Division 4 by inserting after section 139ZM the following sections:
“Recommendations by licenced person 139ZN. (1) A licenced person shall not make a recommendation with respect to any private retirement scheme to a person who may reasonably be expected to rely on the recommendation without having a reasonable basis for making the recommendation to the person.
(2)
For the purposes of subsection (1), a licenced person does not have a reasonable basis for making a recommendation to a person unless—
(a)
the licenced person has, for the purposes of ascertaining that the recommendation is appropriate, taken all practicable measures to ascertain that the information possessed and relied upon by the licenced person concerning the investment objectives, financial situation and particular needs of the person is accurate and complete;
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(b)
the licenced person has given such consideration to, and conducted such investigation of, the subject matter of the recommendation as may be reasonable in all the circumstances; and
(c)
the recommendation is based on such consideration and investigation.
(3)
If the licenced person contravenes subsection (1) and—
(a)
the person, in reliance on the recommendation, does a particular act or refrains from doing a particular act;
(b)
it is reasonable, having regard to the recommendation and all other relevant circumstances, for the person to do that act or to refrain from doing that act, as the case may be, in reliance on the recommendation; and
(c)
the person suffers loss or damage as a result of doing that act or refraining from doing that act, the licenced person shall be liable to pay damages to the person in respect of that loss or damage.
(4)
A licenced person shall not be liable under subsection
(3)
if it is proved that a reasonable person in the circumstances would have done or omitted to do that act in reliance on the recommendation even if a licenced person had complied with that subsection in relation to the recommendation.
(5)
In the case of a contravention of subsection (1), a licenced person shall not be liable if it is proved that the recommendation was, in all circumstances, appropriate having regard to the information that the licenced person had about the client’s investment objectives, financial situation and particular needs when the licenced person makes the recommendation.
False or misleading declaration or furnishing false documents to provider and administrator 139ZO. (1) A person shall not—
(a)
make, orally or in writing, or sign any declaration, return, certificate or other document required under this Act or the rules of a private retirement scheme administrator, which is false, misleading or from which there is a material omission; or
(b)
provide any information or furnish any document which is false, misleading or in which there is a material omission, to a private retirement scheme administrator or an approved private retirement scheme provider.
(2)
A person who contravenes subsection (1) with the intention to deceive a private retirement scheme administrator or an approved private retirement scheme provider commits an offence and shall, on conviction, be liable with imprisonment for a term not exceeding three years or to a fine not exceeding one million ringgit or to both.
(3)
A person who is convicted of an offence under subsection (2) in relation to withdrawal of accrued benefits shall, within six months from the conviction date, return the entire amount withdrawn.
False or misleading statements, etc.
139ZP. A person shall not make a statement, or disseminate information, that is false or misleading in a material particular and is likely to induce any person to make a contribution to a private retirement scheme if, when he makes the statement or disseminates the information—
(a)
he does not care whether the statement or information is true or false; or
(b)
he knows or ought reasonably to have known that the statement or information is false or misleading in a material particular.
Use of manipulative and deceptive devices 139ZQ. It shall be unlawful for any person directly or indirectly to—
(a)
use any device, scheme or artifice to defraud;
(b)
engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person; or
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(c)
make any untrue statement of a material fact or to omit to state a material fact which is necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading, in connection with the—
(A)
acquisition or disposal of beneficial interest under a private retirement scheme;
(B)
making of contributions to a private retirement scheme; or
(C)
withdrawal of any sum from a private retirement scheme.
Penalty for offences under sections 139ZP and 139ZQ
139ZR. A person who contravenes sections 139ZP and 139ZQ commits an offence and shall be punished, on conviction, with imprisonment for a term not exceeding ten years and a fine of not less than one million ringgit.”.
Substitution of Part IV