Malaysia legislation
Section 39
Section 39
New sections 108a, 108b, 108c, 108d, 108e, 108f, 108g and 108h
The principal Act is amended by inserting after section 108
the following sections:
“Beneficial ownership of Labuan company 108a. In this Act, “beneficial ownership” means a natural person who owns or controls a Labuan company or foreign
Labuan company, in whole or in part, through direct or indirect ownership or control of shares or voting rights or other ownership interest in the Labuan company or foreign
Labuan company, or who exercises effective control and influence in the Labuan company or foreign Labuan company as may be determined by the Authority.
Power of company to require disclosure of beneficial ownership information 108b. (1) A Labuan company or foreign Labuan company shall take reasonable steps to find out and identify the beneficial owner of the Labuan company or foreign Labuan company, as the case may be.
(2)
Any Labuan company or foreign Labuan company may, by notice in writing, require any member of the
Labuan company or foreign Labuan company whom the
Labuan company or foreign Labuan company knows or has reasonable grounds to believe that he is a beneficial owner in relation to the Labuan company or foreign Labuan company—
(a)
to state whether he is a beneficial owner of the
Labuan company or foreign Labuan company;
(b)
to state whether he knows or has reasonable grounds to believe that any other person is a beneficial owner of the Labuan company or foreign Labuan company or is likely to have that knowledge and to give such particulars of that person that are within his knowledge; and
(c)
to provide such other information within such reasonable time as specified in the notice.
(3)
Where a Labuan company or foreign Labuan company is informed or knows or has reasonable grounds to believe, that any other person is a beneficial owner of the Labuan company or foreign Labuan company, or is likely to have that knowledge, the Labuan company or foreign Labuan company may by notice in writing require that other person—
(a)
to state whether he is a beneficial owner of the
Labuan company or foreign Labuan company;
(b)
to state whether he knows or has reasonable grounds to believe that any other person is a beneficial owner of the Labuan company or foreign Labuan company, or is likely to have that knowledge and to give such particulars of that other person that are within his knowledge; and
(c)
to provide such other information within such reasonable time as specified in the notice.
Labuan Companies (Amendment)
(4)
Any Labuan company or foreign Labuan company may, by notice in writing, require any member of the Labuan company or foreign Labuan company to inform the Labuan company or foreign Labuan company, within a reasonable time, as is specified in the notice, whether ownership or control of such member in the Labuan company or foreign Labuan company is subjected to an agreement or arrangement under which another person is entitled to control the member’s exercise of his interest or right and if so, to give particulars of the agreement or arrangement and the parties to the agreement or arrangement.
(5)
A resident secretary of a Labuan company or foreign
Labuan company shall ensure that the Labuan company or foreign Labuan company complies with the obligations under this section.
(6)
If default is made in complying with this section, the
Labuan company, foreign Labuan company and every officer of the company who is in default commits an offence under this Act.
Duty to lodge information with the Authority 108c. (1) The particulars of beneficial ownership obtained under section 108b shall be lodged by the Labuan company, foreign Labuan company or the resident secretary with the
Authority as part of the annual return lodge pursuant to section 109 or 129.
(2)
The Authority may, by notice in writing, direct a Labuan company or foreign Labuan company to invoke its powers under this section and to immediately provide the Authority with the information obtained under section 108b.
(3)
Any person who submits false or misleading or inaccurate information to the Authority under this section commits an offence under this Act.
Particulars of beneficial ownership 108d. (1) The particulars of beneficial ownership required under subsection 108b(2) or (3) shall be determined by the Authority in a guideline issued under section 108g.
(2)
Whenever a Labuan company or foreign Labuan company receives information from a person in accordance with any requirement imposed on any person under section 108b, the Labuan company or foreign Labuan company shall be under an obligation to inscribe against the name of that member in a separate part of the register kept by the company under section 105—
(a)
the fact that a requirement was imposed and the date on which it was imposed; and
(b)
the information received in accordance with the requirement.
(3)
If default is made in complying with this section, the Labuan company, foreign Labuan company and every officer of the company who is in default commits an offence under this Act.
Obligation of Labuan company to maintain and keep information up to date 108e. (1) A Labuan company or foreign Labuan company shall maintain and keep the particulars of beneficial ownership in its register of members under section 105 updated from time to time.
(2)
A Labuan company or foreign Labuan company shall, within thirty days of any changes to the particulars kept under subsection (1), lodge with the Authority such changes in the form and manner as may be determined by the Authority.
Labuan Companies (Amendment)
(3)
For the purposes of subsection (2), changes occur if—
(a)
a person ceases to be a beneficial owner in relation to the Labuan company or foreign Labuan company;
(b)
any other changes as a result of which prescribed particulars of the beneficial ownership in the register of members are incorrect or incomplete;
(c)
there are any changes to the particulars of the shareholders contained in the register; or
(d)
a person ceases to be, or becomes, a shareholder of the Labuan company or foreign Labuan company.
(4)
A resident secretary of a Labuan company or foreign
Labuan company shall ensure that the Labuan company or foreign Labuan company complies with the obligations under this section.
(5)
If default is made in complying with this section or if the Labuan company or foreign Labuan company submits false or misleading or inaccurate information to the Authority under this section, the Labuan company, foreign Labuan company and every officer of the company who is in default commits an offence under this Act.
Power of Authority to require submission and examination 108f. (1) The Authority may at any time, by notice in writing, require a Labuan company, foreign Labuan company, a resident secretary or any person the Authority deems appropriate to furnish all the necessary information and particulars of any beneficial owner of the Labuan company or foreign Labuan company and have the information and particulars verified by a statutory declaration.
(2)
Any Labuan company, foreign Labuan company, resident secretary or person served with the notice under subsection (1) shall comply with such notice within seven days of the receipt of such notice.
(3)
Notwithstanding subsection (1), the Authority may use its power under sections 28b and 28c of the Labuan
Financial Services Authority Act 1996 in relation to the particulars of beneficial ownership and information kept by the Labuan company or foreign Labuan company pursuant to this Division.
(4)
If default is made in complying with this section, the Labuan company, foreign Labuan company or resident secretary and every officer of the company who is in default commits an offence under this Act.
Penalty: One million ringgit and in the case of a continuing offence, to a further fine of ten thousand ringgit for each day during which the offence continues after conviction.
(5)
If default is made in complying with this section, the person who is in default commits an offence under this Act.
Penalty: Imprisonment for a term not exceeding ten years or a fine three million ringgit or both, and in the case of a continuing offence, to a further fine of ten thousand ringgit for each day during which the offence continues after conviction.
Power of Authority to issue guidelines 108g. The Authority may issue guidelines pursuant to section 4a of the Labuan Financial Services Authority 1996
to clarify any provision of this Division.
Removal of entries from register 108h. An entry relating to a natural person who used to be a beneficial owner may be removed from the register of members under section 105 after the expiration of six years from the date on which the natural person ceases to be a beneficial owner in relation to the Labuan company or foreign Labuan company.”.
Labuan Companies (Amendment)
23
Amendment of section 110