In enforcing breaches of our rules, we strive to ensure that our processes and actions are effective and timely, fair, independent and transparent. To this end, our enforcement approach encapsulates the following:-
In undertaking enforcement action, principles of natural justice and due process will be accorded where the parties subject to enforcement are accorded fair hearing i.e. they are given an opportunity to provide explanation and procure legal representation. Enforcement decisions for serious/material breaches will be made by the relevant regulatory committees of Bursa Malaysia comprising Market Participants Committee (breaches of Business Rules), Listing Committee (breaches of Listing Requirements) and Appeals Committee (appeals against first instance decision of Market Participants Committee and Listing Committee). These regulatory committees are independent as the members of these committees essentially consist of independent external parties/industry experts with diverse practitioner experience in various areas of the capital market.
In deciding the appropriate actions/penalties/sanctions to be imposed for a breach of our rules, a variety of factors are taken into consideration. These factors include nature and impact of the breach, antecedent character, background as well as conduct of the defaulting party, circumstances and manner under which the breach was committed, mitigating and aggravating factors and public interest/deterrent element of the proposed penalty. As such, depending on the assessment of these various factors in respect of the facts and circumstances of each individual case, the enforcement proceedings may differ (i.e. expedited enforcement proceedings or full enforcement proceedings) as well as the actions/sanctions imposed may also vary even for the same breach by different parties. Under the Listing Requirements, enforcement action can be initiated against directors who are found to have contravened specific obligations imposed on the directors or where there is a breach committed by the listed issuers and the said director is found to have caused, aided, abetted or permitted the commission of the breach by the listed issuer. In ascertaining whether the director has caused, aided, abetted or permitted the listed issuer’s breach, Bursa Malaysia will examine the culpability of each director including the discharge of the director’s fiduciary duties (i.e. duty of care, skill and diligence) to the listed issuer based on documentary evidence and representations made.
The types of sanctions that may be imposed by Bursa under its rules include the following:-
In this regard, we disseminate and share relevant key information pertaining to enforcement to the market with the view of enhancing the effectiveness of our enforcement actions. With greater transparency of our enforcement approach as well as decisions/actions, we hope that the market is aware and understands the enforcement actions taken by Bursa Malaysia. The transparency of enforcement is accomplished through, amongst others, publication of our public enforcement actions as well as posting of our key enforcement cases on Bursa Malaysia’s website.
In initiating and undertaking enforcement, where necessary Bursa Malaysia consults the Securities Commission to ensure effective regulation of the capital market. This is particularly pertinent when there is a contravention of both the rules of Bursa Malaysia and the law under the purview of the Securities Commission. In such circumstances, Bursa Malaysia will consult the Securities Commission as to the appropriateness of initiation of enforcement action by Bursa Malaysia.