Malaysia legislation
Section 121
Section 121
(a)
has been convicted of any offence under this Act or under any other written law; or
(b)
has had any offence committed by him under this Act compounded under section 108, 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—
(aa) to a licensed institution; or
(bb) to a scheduled institution or a non-scheduled institution, in respect of which the Minister has made an order under section 24 (1), or 93 (1), respectively;
regardless, in the case of an institution referred to in paragraph (bb), whether the offence was committed, or the loss of damage occured, before or after any such order as is referred to in paragraph (bb) was made—
(aaa) the person convicted of the offence, or the person whose offence has been compounded under section 108; and
(bbb) any director, officer or controller of the institution, or any 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 institution, or any person who is assisting in such management, shall be jointly and severally liable to indemnify the institution in full for such loss or damage:
Provided that a person referred to in paragraph (bbb) shall not be liable to so indemnify the institution if—
(aaaa) the offence was committed without his consent or connivance; and
(bbbb) he had exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions, powers, and duties in his capacity, and to all the circumstances in which the offence was committed.
(2)
Where the Bank is satisfied—
(a)
on information received by it from an institution referred to in subsection (1), or from any other person having any dealing with such institution; or
(b)
after an examination under section 69 or 70, or an investigation under Part XI; and
(c)
after such inquiry, if any, as it may deem fit or proper to make, in consequence of such information, examination or investigation, that any person is liable under subsection (1) to indemnify the licensed institution for any loss or damage as is referred to in subsection (1), it may issue a certificate specifying the amount of such liability.
(3)
The amount specified in a certificate under subsection (2), with any variation thereof under subsection (4), where applicable, shall be a civil debt due from the person against whom it is issued to the institution which sustained the loss or damage, and may be enforced by such institution by civil execution proceedings in a Sessions Court having jurisdiction in the area in which the principal place of business of the institution is located, as if it were a judgment of that Court, notwithstanding that the amount specified in the certificate, or any matter dealt with in or under the certificate, is beyond the jurisdiction of the Sessions Court:
Provided that such proceedings are instituted in such Court within three months from the date on which the certificate is issued, or in a case where subsection (4) applies, within three months after the conclusion of any proceedings under subsection (4) where such proceedings result in the certificate being confirmed or varied.
(4)
A certificate under subsection (2) shall be valid notwithstanding that no opportunity may have been given to the person against whom it is issued to make any representation, or to be heard, in the matter, before it is issued, but, in such case, proceedings to enforce payment in respect of the certificate under subsection (3) shall not be taken unless such person has first been given a reasonable opportunity to make representations to the Bank in respect of the matters to which the certificate relates, and where such representations are made, the Bank may, in consequence thereof, after giving an opportunity to the institution concerned to be heard or to make representations thereon, confirm, vary or revoke the certificate.
(5)
A certificate under subsection (2), with any variation thereof under subsection (4), shall be conclusive evidence that the amount specified therein is a civil debt due from the person against whom it is issued to the licensed institution specified in the certificate.
(6)
A notification of a certificate under subsection (2), and of any variation or revocation of it under subsection (4), shall be published in the Gazette as soon as practicable after it has been issued, varied or revoked, as the case may be.
(7)
With effect from the date of the publication in the Gazette of a notification under subsection (6) of a certificate under subsection (2), the person against whom it is issued shall not sell, dispose, charge, pledge, transfer or otherwise deal in, or dissipate, or remove from or send out of Malaysia, any monies, assets, or other properties whatsoever, belonging to him without the prior written approval of the Bank—
(a)
until the expiry of the period provided under subsection (3) for the institution of proceedings in a Sessions Court for the enforcement of the certificate; or
(b)
where proceedings are instituted in a Sessions Court under subsection (3) within the period provided therein, until the Court otherwise orders.
(8)
The prohibitions imposed under subsection (7) upon the person against whom a certificate under subsection (2) is issued, shall also apply to any person having custody, control or possession of, or holding in trust, any monies, assets, or other properties whatsoever belonging to the person against whom a certificate is issued.
(9)
Where proceedings have been commenced by the Bank under subsection (2) and a certificate under that subsection has not yet been issued, the institution which sustained the loss or damage referred to in subsection (1) may, after giving written notice to the Bank, institute proceedings in a court in respect of such loss or damage, and where such proceedings have been so instituted in a court, the proceeding under subsection (2) shall immediately thereupon be discontinued and the provisions of this section shall, thereafter, cease to apply in relation to such loss or damage.
(10)
Where a certificate has been issued under subsection (2), the institution in whose favour it has been issued, may, instead of enforcing the certificate under subsection (3), institute (after giving written notice to the Bank of its intention to do so), within the period set out in subsection (3), or such further period as the court may allow, proceedings in a court in respect of the loss or damage referred to in subsection (1), whereupon—
(a)
such certificate shall cease to be enforceable or to have any effect whatsoever, but without prejudice to the notification of its issue published in the Gazette under subsection (6), and the prohibition under subsections (7) and (8) in relation thereto;
(b)
any proceedings under subsection (4) which may then be pending shall be discontinued; and
(c)
the court in which such proceedings are instituted may, if it deems just and proper to do so, make an order for revocation of the notification of the issue of the certificate under subsection (2) published in the Gazette under subsection (6), and immediately thereupon the prohibitions under subsections (7) and (8) shall cease to have effect.
(11)
An order of the court under subsection (10) (c) for the revocation of a notification in the Gazette of the issue of a certificate under subsection (2), shall be published in the Gazette as soon as practicable after it has been made.