Malaysia operates a dual banking system, namely a conventional banking system operating in tandem with an Islamic banking system. Islamic. The Central Bank of Malaysia is the Malaysian central bank. Established on 26 January as Central Bank of Malaya (Bank Negara Tanah Melayu), its main . A banker’s duty of secrecy in Malaysia is statutory as it is clearly provided Act (“BAFIA”) (currently replaced by section (1) of the FSA.
|Published (Last):||16 May 2005|
|PDF File Size:||12.9 Mb|
|ePub File Size:||8.59 Mb|
|Price:||Free* [*Free Regsitration Required]|
This article will only focus and discuss the relevant provisions of the FSA. It will not include any analysis on the Islamic Financial Institution Act A bafis owes a duty of secrecy to its malayxia at all times, including a duty to keep information concerning its customers’ affairs confidential. This duty is also contractual in nature and is to be implied by a banker and customer relationship.
Section 1 of the FSA stipulates that no person who has access to any document or information relating to the affairs or account of any customer of a financial institution, including the financial institution or any person who is or has been a director, officer or agent of the financial institution, shall disclose to another person any document or information relating to affairs or account of any customer of the financial institution.
Tournier v National Provincial and Union Bank of England is a landmark case which laid down and defined the scope of a banker’s duty of secrecy and confidentiality to its customer.
Banking & Financial Institutions Act (BAFIA)
In this case, the Bank had disclosed to the Plaintiff’s employer about the Plaintiff’s information which he had obtained from the drawer of a cheque made in favour of the Plaintiff.
After receiving the information from the Bank, the Plaintiff’s employer did not renew the Plaintiff’s contract of employment. The Plaintiff then commenced an action for breach of confidentiality. Their Lordships held that the right of a customer to have his affairs kept confidential is a legal right, which is not absolute but qualified.
Banking regulation in Malaysia: overview | Practical Law
It was further held that the duty of secrecy is not only confined to the actual state of the customer’s account but it also extends to information derived from the account itself. In other words, a banker’s duty to maintain secrecy and confidence not only encompasses information and facts that he learns from the state of the customer’s account but includes and extends to all information gained from other sources than the customer’s actual account by virtue of the banking relationship.
The next concern is whether an ex-employee of a bank is also bound by the duty of secrecy. The answer is simply, yes. According to section 1 which is read together with section 3 of the FSA, the duty of confidentiality encompasses a person who is not just a bank officer but even a third party.
Section 3 of the FSA states that a person who has any information or document which to his knowledge has been disclosed in contravention of section 1 of the FSA is prohibited from disclosing the same to any other person. The duty of secrecy continues even after the termination of the banker and customer relationship.
As a result, in the event that a banker breaches his duty of secrecy, the customer may be entitled to claim for damages, if he has suffered losses. When a customer successfully sues a banker for breach of duty of secrecy, the amount of damages which he is entitled to recover depends on whether he is able to establish the actual extent of the damages he had suffered as a result of the disclosure.
In the case of Tan Eng Seong v Malayan Banking Bhd, the Plaintiff who was the Bank’s employee had left and orally closed his bank account with the Bank without giving any written instruction.
The Bank did not close bafiq account as there was no written authorisation from the Plaintiff.
Lying dormant, the service charge and interest on the account accumulated to RM The Bank’s credit officer subsequently informed the Plaintiff’s brother and upon knowing, the Plaintiff commenced an action for breach of confidentiality.
The Court held that the Plaintiff failed to close his account as the required written instruction was not given. The alleged statement made by the Bank’s credit officer was not defamatory.
In other words, it is sufficient to state that the Plaintiff could even succeed based on an implied duty of confidentiality between him and the bank. The Court allowed the civil action and granted the nominal damages of RM15 to the Plaintiff. The author opines that the principles from the abovementioned cases must be interpreted in the context of the statutory regime. As the duty of confidentiality is contractual between the banker and the customer, the remedy would be an action for breach of contract and possibly an action for defamation.
Under section 4 of the FSA, any person who is found guilty of breaching his duty of secrecy to a customer, shall be liable to imprisonment for a term not exceeding 5 years or to a fine not exceeding RM10 million or both.
This imposes a criminal penalty. Despite aforesaid, there are qualifications which entitle the Bank to divulge and disclose the information: To protect the Bank’s interest where the Bank initiates action to recover monies owed by the customer and the notice of demand and pleading tendered to the court contain the details of the debt.
It is only by the abovementioned qualifications or exceptions that such information may be disclosed legally to a third party. The bank can raise the applicable qualification s or exception s as a defence against any claim made by its customers. In a nutshell, the author opines that such right of secrecy and confidentiality of a customer has been diluted by the abovementioned exceptions.
The content of this article is intended to provide a general guide to the subject matter.
Specialist advice should be sought about your specific circumstances. If directed by the court order or compulsion by law; 2.
To protect the Bank’s interest where the Bank initiates action to recover monies owed by the customer mallaysia the notice of demand and pleading tendered to the court contain the details of the debt; 3. Disclosure for public interest; 4. If consent is given by the customer either mapaysia or expressly; 5. The exceptions provided under the statute are the following: Do you have a Question or Comment? Interested in the next Webinar on this Topic?
Click here to register your Interest. Events from this Firm. More from this Firm. More from this Author.
Banking regulation in Malaysia: overview
Crowdfunding is solicitation of small amounts funds from multiple investors through a web-based platform or social networking site for a specific project, malaysua venture or social cause. India has witnessed an unprecedented growth in the domain of investment funds, at a global level. ASIC says that it will adopt a much tougher and more aggressive mallaysia in its monitoring and enforcement of compliance.
ASIC has published the exact levies payable by regulated entities in under the new industry funding arrangements. Insight Plus – November Worldwide Europe European Union U.
Energy and Natural Resources. Food, Drugs, Healthcare, Life Sciences. Media, Telecoms, IT, Entertainment. Real Estate and Construction. Countries In Asia Pacific.