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THE Securities Commission (SC) has, in a statement, said it would be in touch with a senior civil servant following an affirmation by him, publicly, that he had authorised his sibling to purchase quoted shares in companies listed on Bursa Malaysia using his central depository system (CDS) account, shares he claimed were later transferred to his sibling.
Matters that falls under the conduct of SC include the following:
i) Misconduct of corporates, individuals and markets that are licensed, registered or authorised by the SC
ii) Unlicensed capital market activities including illegal schemes or scams
iii) Market misconduct including market manipulation and insider trading.
The definition of an insider under the Capital Markets and Services Act 2007 (CMSA) is wide, including any person who comes into possession of material non-public information relating to securities.
As far as the law is concerned, so long as a person is in possession of “information” and that person knows that the said information is not generally available – which, upon becoming generally available, would have a material effect on the price or the value of securities – that person becomes an insider, regardless of whether he or she is a director or officer of the company.
Even though the SC plays an important role in regulating the market to prevent manipulation and misconduct, the definitional vagueness of market manipulation continuously poses a challenge to any enforcement action.
In the SC’s Guidelines on Market Conduct and Business Practices for Stockbroking companies and Licensed Representatives, updated in November 2014, 11 core principles were issued.
One of which is conflict of interests, where it states that a licensed person must manage conflict of interests fairly, both between itself and its customers, and between a customer and another customer.
Stockbroking companies and their representatives must also comply with undertaking and perform customer due diligence.
If the purchase of the shares had undertaken after January 31, 2017, where section 56(1) of the act provides that the company may issue a notice in writing to any member of the company to provide confirmation whether the member holds any voting shares as beneficial owner or as trustee, then they are required to disclose the identity and particulars of the beneficiary.
The Companies Commission of Malaysia thus would have to conduct an investigation to determine whether such disclosures were made.
Nevertheless, over the years, the SC has initiated civil and enforcement action against the following individuals for insider trading, where all the perpetrators were alleged to have allowed another person who is not the beneficial owner of their CDS account.
In actions taken against Wong Shin Yih and Teh Bee Lee individually on May 13, 2020, the SC charged that both had breached section 354(1)(a) of the Capital Markets and Services Act 2007 read together with section 29A of the Securities Industry (Central Depositories) Act 1991, by allowing another person who is not the beneficial owner of their CDS accounts to dispose shares through their accounts.