Section 93 — DEVELOPMENT FINANCIAL INSTITUTIONS (AMENDMENT) ACT 2015

(a)

any provision of this Act;

(b)

any regulations made under this Act;

(c)

any order made or any direction issued under this

Act by the Bank; or

(d)

any standards, condition, restriction, specification or requirement under this Act.

(2)

The Bank shall have regard to the following matters in determining the appropriate action to be taken in each case:

(a)

the effectiveness of the enforcement action to be taken under this Act;

(b)

the proportionality of the action to be taken with the breach committed;

(c)

deterrence of future breaches of similar nature by other persons; and

(d)

any other matter that is considered as relevant in the opinion of the Bank.

(3)

If the Bank is of the opinion that a person has committed a breach and it is appropriate to take action against that person, the Bank may, subject to section 123b, take any one or more of the following actions:

(a)

make an order in writing requiring the person in breach—

(i)

to comply with or give effect to; or

(ii)

to do or not to do any act in order to ensure compliance with, such provisions, regulations, order, direction, standards, condition, restriction, specification or requirement referred to in subsection (1);

(b)

subject to subsection (4), impose a monetary penalty—

(i)

in accordance with the order published in the

Gazette made under section 106c or if no such order has been made, in accordance with such amount as the Bank considers appropriate, but in any event not exceeding five million ringgit in the case of a breach that is committed by

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a body corporate or unincorporate or one million ringgit in the case of a breach that is committed by any individual;

(ii)

which shall not exceed three times the gross amount of pecuniary gain made or loss avoided by such person as a result of the breach; or

(iii)

which shall not exceed three times the amount of money which is the subject matter of the breach, whichever is greater for each breach or non-compliance;

(c)

reprimand in writing the person in breach or require the person in breach to issue a public statement in relation to such breach, if it is in the opinion of the Bank that such breach is relevant for the information of the general public;

(d)

make an order in writing requiring the person in breach to take such steps as the Bank may direct to mitigate the effect of such breach; or

(e)

make an order in writing requiring the prescribed institution to remedy the breach including making restitution to any other person aggrieved by such breach.

(4)

The Bank may impose a monetary penalty under paragraph (3)(b) only in respect of the following:

(a)

breach of any provision set out in the Third

Schedule;

(b)

breach of any requirement under any other provision of this Act where no offence is provided for non-compliance of that requirement;

(c)

failure to comply with any requirement imposed under regulations made under this Act where no provision for imposition of penalty is provided for in accordance with paragraph 123(2)(b); or

(d)

failure to comply with any standards, order, direction, requirement, condition, specification, restriction or otherwise made or imposed pursuant to any provision set out in the Third Schedule.

(5)

If a breach is committed by a body corporate or unincorporate, any action under subsection (3) can be taken against a person—

(a)

who is its director, controller, officer or partner, or was purporting to act in any such capacity; or

(b)

who is concerned in the management of its affairs, at the time of the breach unless that person demonstrates that the breach was committed without his consent or connivance and that he exercised such diligence to prevent the breach as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.

(6)

If a breach is committed by a person—

(a)

who is a director, controller, officer or partner of a body corporate or unincorporate, or was purporting to act in any such capacity; or

(b)

who is concerned in the management of the affairs of a body corporate or unincorporate, an action under subsection (3) can be taken against the body corporate or unincorporate.

(7)

For the purposes of paragraph (3)(e), in determining whether or not any amount is to be paid by a person in breach, the Bank shall have regard to—

(a)

whether or not one or more persons have suffered loss or been otherwise adversely affected as a result of the breach; or

(b)

the profits that have accrued to such person in breach.

(8)

Any monetary penalty paid by a person in accordance with paragraph (3)(b) shall be paid into and form part of the

Federal Consolidated Fund.

(9)

Where a person fails to pay a monetary penalty imposed by the Bank under paragraph (3)(b) within the period specified by the Bank, the penalty imposed by the Bank may be sued for and recovered as a civil debt due to the Government.

Development Financial Institutions (Amendment)

(10)

Where a person fails to remedy the breach including making restitution to any other person aggrieved by the breach under paragraph (3)(e), notwithstanding any other written law, the Bank may sue for and recover such sum as a civil debt due to the person aggrieved by the breach.

(11)

Nothing in this section shall preclude the Bank from taking any of the actions that it is empowered to take under this Act or any written law.

Lodgement of amount not distributed with Registrar of

Unclaimed Moneys 106b. To the extent that any of the amount paid under paragraph 106a(3)(e) or subsection 106a(10) has not been distributed by the person in breach after reasonable efforts to notify the aggrieved persons have failed due to the difficulty of notifying the aggrieved persons, such amount shall be lodged with the Registrar of Unclaimed Moneys in accordance with the provisions of the Unclaimed Moneys

Act 1965 [Act 370].

Power of Bank to prescribe monetary penalty 106c. The Bank may, with the concurrence of the Minister, prescribe the following matters as it deems necessary, for giving full effect to or for convenient implementation of subparagraph 106a(3)(b)(i), or for the purposes of this Act:

(a)

the classification or designation of breaches under this Act into different categories of breaches; and

(b)

the fixing, in accordance with paragraph (a), of a monetary penalty, or a range of monetary penalties, in respect of each category of breaches.

Application for appeal of decisions 106d. (1) Any person who is aggrieved by a decision of the

Bank under paragraph 106a(3)(b) or (e) may, within twenty-one days after the person has been notified of the decision, appeal by filing a notice in writing to the Monetary Penalty Review

Committee established under the Financial Services Act 2013

or Islamic Financial Services Act 2013.

(2)

The decision of the Bank under paragraph 106a(3)(b)

or (e) shall not take effect until the appeal is disposed of.

(3)

The Monetary Penalty Review Committee may decide to confirm the decision of the Bank or require the Bank to reconsider and reach a decision in accordance with the findings of the Committee.

Part VIIIb

CIVIL ACTIONS

Civil action by Bank 106e. Where it appears to the Bank that there is a reasonable likelihood that any person will contravene or has contravened or will breach or has breached or is likely to fail to comply with or has failed to comply with—

(a)

any provisions of this Act;

(b)

any provisions of any regulations made under this

Act;

(c)

any order made or direction issued by the Bank under this Act;

(d)

any standards, condition, restriction, specification or requirement under this Act; or

(e)

any action taken by the Bank under subsection 106a(3), the Bank may institute civil proceedings in a court seeking any order specified under subsection 106f(1) against that person whether or not that person has been charged with an offence in respect of the contravention, breach or non-compliance or whether or not the contravention, breach or non-compliance has been proved in a prosecution.

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Orders by court 106f. (1) The court may, on an application by the Bank under section 106e, make one or more of the following orders:

(a)

an order requiring the person to pay an amount which shall not exceed three times—

(i)

the gross amount of pecuniary gain made or loss avoided by such person as a result of the contravention, breach or non-compliance; or

(ii)

the amount of money which is the subject matter of the contravention, breach or non-compliance, as the case may be;

(b)

an order requiring the person to pay a civil penalty in such amount as the court considers appropriate having regard to the severity or gravity of the contravention, breach or non-compliance, but in any event not exceeding twenty-five million ringgit;

(c)

an order—

(i)

restraining the person from engaging in any specific conduct; or

(ii)

requiring the cessation of the contravention, breach or non-compliance;

(d)

an order directing a person to do a certain act;

(e)

an order directing the person or any other person who appears to have been involved in the contravention, breach or non-compliance to take such steps as the court may direct to mitigate the effect of such contravention, breach or non-compliance;

(f)

an order directing the prescribed institution to remedy the contravention, breach or non-compliance including making restitution to any other person aggrieved by such contravention, breach or non-compliance;

(g)

where a person has refused or failed to comply with any action taken by the Bank under subsection 106a(3), an order directing the person to comply with such action that is taken by the Bank; and

(h)

any other order deemed appropriate by the court including any ancillary order deemed desirable in consequence of the making of an order under any provision in this subsection.

(2)

The court may make an order under subsection (1)

against a person—

(a)

who is the director, controller, officer or partner of a body corporate or unincorporate, or was purporting to act in any such capacity; or

(b)

who is concerned in the management of the affairs of a body corporate or unincorporate, in the event where the contravention, breach or non-compliance has been committed by the body corporate or unincorporate unless that person proves that the contravention, breach or non-compliance was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the contravention, breach or non-compliance as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.

(3)

If a contravention, breach or non-compliance is committed by a person—

(a)

who is a director, controller, officer or partner of a body corporate or unincorporate, or was purporting to act in any such capacity; or

(b)

who is concerned in the management of the affairs of a body corporate or unincorporate, an order under subsection (1) can be made against the body corporate or unincorporate.

(4)

Any sum ordered by the court under subsection (1), shall be applied—

(a)

firstly, to reimburse the Bank for all costs of the proceedings in respect of the contravention, breach or non-compliance; and

(b)

secondly, to pay persons aggrieved by the contravention, breach or non-compliance in the case of an order under paragraph (1)(f); or

Development Financial Institutions (Amendment)

(c)

thirdly, to pay into and form part of the Federal

Consolidated Fund unless the court orders for such sums or part of the sum to be used to compensate persons who have suffered loss as a result of the contravention, breach or non-compliance.

(5)

If the prescribed institution considers that it is not practicable to provide a remedy to the persons referred to in paragraph (1)(f) in view of the amount of any potential distribution to each person or the difficulty of ascertaining or notifying the person whom it is appropriate to provide a remedy, the prescribed institution shall lodge such amount with the Registrar of Unclaimed Moneys in accordance with the provisions of the Unclaimed Moneys Act 1965.

(6)

The court may revoke or vary an order made by it under this section or suspend the operation of such an order.

(7)

The powers conferred on the court under this section are in addition to any of its other powers, and do not derogate from its other powers provided under any other written law.

(8)

Applications referred to in subsection (1) may be made at any time within six years from the date on which the Bank discovered the contravention, breach or non-compliance.

Civil action to seek compensation 106g. (1) Where any person—

(a)

has been convicted of an offence under this Act or under any other written law; or

(b)

has had any offence committed by him compounded under section 113, and such offence has resulted in, or caused, or subsequent to its commission, results in, or causes, any loss or damage of any nature or in any form to a prescribed institution, the Bank may institute civil proceedings in court for the purpose of seeking indemnity from the persons referred to in subsection (2).

(2)

The following persons shall be jointly and severally liable to indemnify the prescribed institution in full for any loss or damage to the prescribed institution:

(a)

the person convicted of the offence, or the person against whom the offence has been compounded under section 113; and

(b)

any director, officer or controller of the prescribed institution, any other person purporting to act in any such capacity, or any person who is in any manner or to any extent responsible for the management of the affairs of the prescribed institution, or any person who is assisting in such management.

(3)

The court may, upon reviewing the application by the

Bank, make an order specifying the amount of moneys the persons referred to in subsection (2) are liable to indemnify the prescribed institution.

(4)

The persons referred to in subsection (2) shall not be liable to so indemnify the prescribed institution if—

(a)

the offence was committed without his knowledge, consent or connivance; and

(b)

he has taken all reasonable precautions and had exercised due diligence to prevent the commission of the offence as he ought to have taken or exercised, having regard to the nature of his functions and to all the circumstances in which the offence was committed.

(5)

An amount ordered by the court under subsection (3)

shall be applied—

(a)

firstly, to reimburse the Bank for all costs of the proceedings to seek the indemnity; and

(b)

secondly, to compensate the prescribed institution.

(6)

Civil proceedings under subsection (1) may be commenced at any time within six years from the date on which the person has been convicted of the offence under this Act or other written law or compounded under section 113.

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Interim orders 106h. If an application is made to a court for an order under subsection 106f(1) or 106g(1), the court may, if it deems appropriate, before considering the application, make any interim order as may have been applied for and such interim order shall have effect pending the determination of the application of the order.

Contravention of court order 106i. (1) Any person who contravenes any order of the court made under subsection 106f(1), 106g(3) or section 106h 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.

(2)

Subsection (1) does not affect the powers of the court in relation to the punishment of contempt of court.

No undertaking as to damages 106j. Where the Bank makes an application for an order under subsection 106f(1) or 106g(1), the 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 Bank.

Other actions 106k. An application made under subsection 106f(1)

or 106g(1) shall not prejudice any other action that may be taken by the Bank, aggrieved person or prescribed institution, as the case may be, under this Act or any other law.

Evidence obtained in investigations may be used in civil proceedings 106l. (1) Notwithstanding any law, any property, record, report, document, apparatus, equipment, machinery, computer, computer output, system, data, books, information, article or thing obtained by the Bank in the exercise of its investigation powers against—

(a)

a prescribed institution;

(b)

any director or officer of the prescribed institution;

(c)

any agent of the prescribed institution; or

(d)

any other person, may be used by the Bank in a civil action instituted by the

Bank.

(2)

For the avoidance of doubt, any property, record, report, document, apparatus, equipment, machinery, computer, computer output, system, data, books, information, article or thing referred to in subsection (1) shall not be inadmissible in any civil proceedings under this Act to which the Bank is a party by reason only that it was obtained by the Bank in the exercise of its investigation powers and the admissibility shall be determined in accordance with the rules of evidence under any law.”.

Deletion of section 107