Firm Profile > Raja, Darryl & Loh > Kuala Lumpur, Malaysia

Raja, Darryl & Loh
Level 26, Menara Hong Leong
6, Jalan Damanlela, Bukit Damansara
KUALA LUMPUR
50490
Malaysia

Dispute resolution Tier 1

Strong across arbitration, adjudication and litigation, Raja, Darryl & Loh's dispute resolution is best known for its strength in handling medical negligence, construction, media and tax matters. Practice head Murugaiah Rajasekaran has experience across general corporate, commercial and civil litigation; Wei Mun Chang and Hon Leng Choon focus on construction disputes, and Raja Eileen Soraya Raja Aman is a name to note for defense of medical negligence and malpractice claims and media law. Arbitration specialist Huey Miin Ooi counts oil and gas, power generation and manufacturing among his sector specialisms while litigator Sai Yeang Ng has particular banking and finance expertise.

Practice head(s):

Murugaiah Rajasekaran

Other key lawyers:

Chang Wei Mun; Choon Hon Leng; Raja Eileen Soraya; Ooi Huey Miin; Ng Sai Yeang

Key clients

Medical Protection Society of the United Kingdom

ExxonMobil Exploration and Production Malaysia Inc

S P Setia Group

Petron Malaysia Group

United Overseas Bank (Malaysia) Berhad

The Edge Communications Sdn Bhd

Agro Bank

Maxis

Heineken

Dominant Opto Technologies Sdn Bhd

Antitrust and competition Tier 2

The team at Raja, Darryl & Loh is instructed by both domestic and international clients to advise on competition law compliance. Practice head Chew Phye Keat advises clients, which include prominent companies in the automotive, pharmaceuticals and telecoms sectors, on non-contentious competition law matters.

Intellectual property Tier 2

The intellectual property team at Raja, Darryl & Loh has experience across protection, enforcement, commercialization and management of rights, and has recently been particularly active in contentious trademark matters. Chew Phye Keat handles corporate and commercial intellectual property matters, while Yvonne Ong focuses on prosecution and enforcement. Dispute resolution partner Hon Leng Choon has IP litigation experience.

Practice head(s):

Phye Keat Chew ; Yvonne Ong

Other key lawyers:

Key clients

JT International SA

Microsoft Corporation

Bridgestone Corporation

Infineon Technologies AG

Giorgio Armani SpA

Axiata Group Berhad

DiGi Telecommunications

Ajinomoto

Duopharma Biotech Berhad

Celcom Axiata Berhad

Labour and employment Tier 2

The employment team at Raja, Darryl & Loh handles a range of advisory and contentious matters with particular experience in defending unfair dismissal, retrenchment and constructive dismissal cases at the Industrial Court. Practice head Ravindra Kumar Rengasamy advises clients on redundancy and retrenchment, contractual matters as well in litigation.

Practice head(s):

Ravindra Kumar Rengasamy

Key clients

Perbadanan Perwira Harta Malaysia

Columbia Asia Sdn Bhd

Rohde & Schwarz (M) Sdn Bhd

Finance Accreditation Agency

Ipsos Sdn Bhd

Bentley Systems (M) Sdn Bhd

Royal Bank of Canada Group

Petrofac Group

Western Union Group

ADT Services/Tyco Fire Security & Services Group

Baker Hughes Group

Volvo Cars Group

Real estate and construction Tier 2

Raja, Darryl & Loh combines its corporate, commercial and construction expertise to advise clients on the sale and purchase of real estate as well as on construction projects, with particular experience in the hospitality and affordable housing sectors. The group has continued to add to its client roster with recent instructions from Perbadanan PR1MA Malaysia, Damansara Realty and China Construction Engineering (SEA) Malaysia. Key names to note include construction practice head Wei Mun Chang and Hon Leng Choon who has experience advising on all stages of projects, from pre-contract negotiations to dispute resolution.

Practice head(s):

Wei Mun Chang

Other key lawyers:

Key clients

Petron Malaysia Refining & Marketing Bhd

Marriott International Group

PR1MA (Perbadanan PR1MA Malaysia)

Damansara Realty (Johor) Sdn Bhd

SP Setia Group

YTL Group

UEM Sunrise Berhad

FGV Plantations (M) Sdn Bhd

China Construction Engineering (SEA) Malaysia Sdn Bhd

Tax Tier 2

Raja, Darryl & Loh's tax practice group is highlighted for its tax litigation expertise. It has recently been particularly active in assisting clients with issues arising from the transition from Goods and Services Tax to Sales and Services Tax. Practice head Vijey Krishnan has a strong reputation for his representation of clients in the Courts and before the tax authorities, and is frequently assisted by senior associate William Wong.

Practice head(s):

Vijey Krishnan

Other key lawyers:

Key clients

Petroliam Nasional Berhad

Heineken Malaysia Bhd

Halliburton

Digi Telecommunications Sdn Bhd

JTI Group

Shell Group Malaysia

Intel Malaysia

Dialog Group Berhad

Western Union Group

ExxonMobil

TMT Tier 2

The technology, multimedia and telecoms practice at Raja, Darryl & Loh assists its client roster — which ranges from large corporates to start ups — on a range of matters spanning commercial matters, including relating to IT and e-commerce, artificial intelligence applications and telecoms, to regulatory considerations under Communications & Multimedia Act 1998 and the Personal Data Protection Act 2010. The group has also been increasingly active in handling referrals for the review of the terms of use of mobile applications and privacy policies of multinationals in Malaysia. Practice head Tong Lai Ling benefits from a breadth of contractual expertise, particularly in technology and e-commerce.

Practice head(s):

Tong Lai Ling

Testimonials

Combines knowledge of IT industry services, terminology and process with a good understanding of my company’s risk appetite and advise accordingly.

Tong Lai Ling ability to understand fast and provide good feedback and prompt responses.

Key clients

Silverlake Group

Sime Darby Berhad

Talian Gerak Alih Sdn Bhd

Digi Telecommunications

Banking and finance Tier 3

Raja, Darryl & Loh’s cross-departmental team has experience advising on a range of contentious and non-contentious banking and finance matters. On the transactional side, it assists its financial institution clients with conventional and Islamic retail and corporate financing. The team is also developing its fintech practice with experience advising on compliance matters relating to digital micro-financing and payment solutions. Names to note include Sai Yeang Ng, Kok Seng Chong and Mei Mei Chong for disputes and aviation financing and financial technology advice respectively.

Corporate and M&A Tier 3

The corporate and commercial team at Raja, Darryl & Loh counts a range of domestic and large international clients among its client roster, and has experience advising on Malaysian aspects of high-profile cross-border transactions. It has a breadth of experience across a range of sectors and has recently been particularly active in the technology, telecoms, pharmaceuticals and healthcare industries. Managing partner Chew Phye Keat heads up the team and has particular IT sector expertise. Chu Wei Tai is a key name to note for global M&A mandates.

Practice head(s):

Other key lawyers:

Tai Chu Wei

Key clients

Silverlake Group (Silverlake Axis Ltd)

D&O Green Technologies Berhad

Hotel Royal Limited, Singapore

Cloudaron Group Berhad

Eli Lilly and Company

Bayer AG

MAA Group Berhad

Chemical Company of Malaysia Berhad

Affin Investment Bank Berhad

Heineken Malaysia Berhad

Digi.Com Berhad

Projects and energy Tier 3

The construction and energy group at Raja, Darryl & Loh has particular experience advising on rail sector projects having been instructed to advise on high profile projects for the light rail transit three (LRT3), the mass rapid transit 2 (MRT2) line in the Klang Valley and on the KL monorail fleet expansion project. The group is also developing a niche in advising oil and gas sector clients on liabilities arising from fires. Practice head Wei Mun Chang focuses on public transport projects while Choon Hon Leng has experience in housing development projects. Joshua Chong

Practice head(s):

Wei Mun Chang;

Other key lawyers:

Key clients

Prasarana Malaysia Berhad

CRCC CREC CCC Consortium Sdn Bhd

Mass Rapid Transit Corporation Sdn Bhd

SP Setia Group

YTL Construction Sdn Bhd

Mycron Steel CRC Sdn Bhd

Pengerang Refining Company Sdn Bhd

UEM Sunrise Sdn Bhd

Raja, Darryl & Loh, a full-service legal firm in Malaysia, was established in 1964 and is one of the larger law firms in the country. With a network of legal and other professional firms in other jurisdictions, the firm has the capacity to procure international professional assistance and referrals for its clients.

Clients range from conglomerates, multinationals, public listed companies, banks and other financial institutions, fund and asset management companies and corporations in a broad spectrum of industries to high-networth individuals.

The firm’s lawyers comprise practitioners who have been trained in Malaysia as well as abroad, including other common law jurisdictions such as Australia, New Zealand and Singapore. Many are barristers who have been admitted to the Bar of England and Wales. They are proficient in many languages – English, Malay, Tamil, Mandarin and various Chinese dialects.

Some partners are members of the Panels of Arbitrators, Adjudicators and Mediators of the Asian International Arbitration Centre.

Most of the partners of the firm have been recognised over many years by legal publications as leading practitioners in their respective areas of expertise.

Banking, corporate, commercial law, construction, foreign investment, intellectual property, medical law & healthcare, mergers & acquisitions and real estate may be said to constitute the core practice areas. Whether in regard to dispute resolution, issuing legal opinions or drafting, vetting and negotiation of documents, these areas of law have been part of the bedrock of the firm’s practice for decades.

In addition to the above, the firm includes in its domain quite a number of other areas which may be considered specialist, notably: aviation, competition, energy, e-commerce, financial technology, insolvency, labour & employment, personal data protection, technology, multimedia & telecommunications, tax and unit trusts & investment funds. Over the years, the respective partners have built up experienced teams, gaining a solid reputation for quality work.

At the heart of it all, over and above the areas of expertise, the firm believes that its strength, the thing that may well make it stand out from the crowd, is its emphasis on professionalism and integrity, coupled with its practical, innovative and holistic approach to help clients achieve the results they require.

Department Name Email Telephone
Dispute Resolution Dato' M Rajasekaran raja@rdl.com.my 603 2632 9857
AntiTrust & Competition, Intellectual Property, Technology, Multimedia & Telecommunications Chew Phye Keat chewphyekeat@rdl.com.my 603 2632 9873
Unit Trusts & Investment Funds, Insurance Christopher Foo christopherfoo@rdl.com.my 603 2632 9883
Dispute Resolution, Banking & Finance Ng Sai Yeang nsy@rdl.com.my 603 2632 9877
Labour & Employment, Dispute Resolution, Wills, Probate & Administration Ravindra Kumar Rengasamy ravindrakumar@rdl.com.my 603 2632 9863
Media law, Medical law & Healthcare, Dispute Resolution Raja Eileen Soraya Bt Raja Aman eileensoraya@rdl.com.my 603 2632 9890
Tax, Foreign Investment Vijey M Krishnan mkvijey@rdl.com.my 603 2632 9868
Insolvency & Restructuring, Dispute Resolution, Banking & Finance Mark La Brooy marklabrooy@rdl.com.my 603 2632 9865
Technology, Multimedia & Telecommunications, Personal Data Protection & Privacy, E-Commerce Tong Lai Ling tonglailing@rdl.com.my 603 2632 9878
Capital Markets, Corporate & M&A Tai Chu Wei taichuiwei@rdl.com.my 603 2632 9891
Corporate & M/A, Medical Law & Healthcare, Foreign Investment,Banking & Finance Joyce Teh Yen Yen joyceteh@rdl.com.my 603 2632 9882
Arbitration, Dispute Resolution, Real Estate & Construction, Projects & Energy Choon Hon Leng honleng@rdl.com.my 603 2632 9888
Aviation, Capital Markets, Foreign Investment Chong Kok Seng kokseng@rdl.com.my 603 2632 9889
Intellectual property Yvonne Ong yvonneong@rdl.com.my 603 2632 9886
Financial Technology, E-Commerce, Banking & Finance, Money Services Business Chong Mei Mei chongmeimei@rdl.com.my 603 2632 9887
Arbitration, Dispute Resolution Ooi Huey Miin hueymiin@rdl.com.my 603 2632 9893
Banking & Finance, Real Estate Wong Quan Sean qswong@rdl.com.my 603 2632 9869
Arbitration, Real Estate & Construction, Projects & Energy Hor Shirley horshirley@rdl.com.my 603 2632 9880
Labour & Employment, Dispute Resolution, Wills, Probate & Administration Tham Li Vyen livyen@rdl.com.my 603 2632 9875
Arbitration, Real Estate & Construction, Projects & Energy Joshua Chong joshuachong@rdl.com.my 603 2632 9876
Intellectual Property Leong Ooi Ling leongooiling@rdl.com.my 603 26329903
Tax William Wong williamwong@rdl.com.my 603 26329905
Photo Name Position Profile
Mr Phye Keat Chew  photo Mr Phye Keat Chew Management Partner; Head of Corporate and Commercial; Competition law.
Ms Charlaine Adrienne Chin  photo Ms Charlaine Adrienne Chin Partner; Dispute Resolution; Medico-Legal
Mr Joshua Wan Ken Chong  photo Mr Joshua Wan Ken Chong Partner; Dispute Resolution; Construction & Energy
Ms Mei Mei Chong  photo Ms Mei Mei Chong Partner; Fintech;Real Estate
Mr Kok Seng Chong  photo Mr Kok Seng Chong Partner; Aviation, Banking & Finance, Mergers & Acquisitions
Mr Hon Leng Choon  photo Mr Hon Leng Choon Partner; Dispute resolution
Mr Christopher Kah Foong Foo  photo Mr Christopher Kah Foong Foo Partner; Head of Unit Trusts & Investment Funds; Insurance.
Ms Shirley Hor  photo Ms Shirley Hor Partner; Dispute Resolution:Construction & Energy
Mr Vijey Krishnan  photo Mr Vijey Krishnan Partner; Tax
Mr Mark La Brooy  photo Mr Mark La Brooy Partner, Dispute Resolution;Insolvency
Ms Ooi Ling Leong  photo Ms Ooi Ling Leong Partner – Intellectual Property
Dato Rajasekaran Murugaiah  photo Dato Rajasekaran Murugaiah Management Partner; Commercial and civil litigation.
Ms Sai Yeang Ng  photo Ms Sai Yeang Ng Partner, Dispute Resolution, Banking & Finance;Insolvency
Ms Yvonne Ong  photo Ms Yvonne Ong Partner; Head of Intellectual Property & Technology
Mr Huey Miin Ooi  photo Mr Huey Miin Ooi Partner; Dispute Resolution; Construction; Arbitration
Ms Raja Eileen Soraya Raja Aman  photo Ms Raja Eileen Soraya Raja Aman Partner; Dispute Resolution; Media Law
Mr Ravindra Kumar Rengasamy  photo Mr Ravindra Kumar Rengasamy Partner; Dispute Resolution;Head of Employment and Industrial Relations.
Mr Chu Wei Tai  photo Mr Chu Wei Tai Partner; Capital Markets; Mergers & Acquisitions
Ms Joyce Yen Yen Teh  photo Ms Joyce Yen Yen Teh Partner; Corporate; Mergers & Acquisitions; Healthcare
Ms Li Vyen Tham  photo Ms Li Vyen Tham Partner; Dispute Resolution; Employment & Industrial Relations
Ms Lai Ling Tong  photo Ms Lai Ling Tong Partner; Head of Technology, Multimedia & Communications
 William Wong photo William Wong Partner – Tax
Ms Quan Sean Wong  photo Ms Quan Sean Wong Partner; Corporate & Commercial; Real Estate
Number of lawyers : 74
English
Bahasa Malaysia
Mandarin
Tamil
Contacts : Dato' M Rajasekaran (raja@rdl.com.my)
Contacts : Chew Phye Keat (chewphyekeat@rdl.com.my)
Contacts : Ng Sai Yeang (nsy@rdl.com.my)

Doing Business in Malaysia

INTRODUCTION

Located south of Thailand and north of Indonesia, Malaysia comprises Peninsular Malaysia (sometimes called the Malay Peninsula) and the 2 states of Sarawak and Sabah on the island of Borneo.  Peninsular Malaysia (formerly called Malaya) had been colonised by the British and became independent in 1957.  In 1963, Sarawak and Sabah joined Malaya and Malaysia was born. (Strictly speaking, Singapore also joined in 1963, but seceded in 1965.)  Malaysia consists of 13 states and 3 federal territories – Kuala Lumpur (the commercial capital), Putrajaya (the administrative capital) and Labuan (an island off Sabah), which is a tax haven.  As at 2018, Malaysia’s population is 32,400,000.

Government

The system of government is parliamentary democracy with a constitutional monarch.  The head of state is the “Yang di-Pertuan Agong” – this is a largely ceremonial position, the head of government being the Prime Minister who comes to power through a general election held at least once every 5 years.

As part of the government’s fight against corruption, the Malaysian Anti-Corruption Commission Act 2009 has been amended to introduce Section 17A which will come into force on 1st June 2020.   Among other things, this obligates commercial organisations to ensure that they have adequate procedures in place for the prevention of corrupt acts by their employees and service providers, failing which the companies and their directors/top management may be liable to fines/imprisonment.

The Legal System

The Court hierarchy consists of the Magistrates’ Courts, Sessions Courts, High Courts, the Court of Appeal and the Federal Court. Civil law is applicable to everyone, but there is a separate Islamic law system in regard to certain areas of life (such as family and inheritance) that only applies to Muslim individuals.  Malaysia being essentially a common law country, the Courts are often guided by caselaw from other Commonwealth countries.

The Malay language, or “Bahasa Malaysia”, is the official language of Malaysia, used in administration and communication by the government. However, English is widely used in the urban areas and in business throughout the country.  (Indeed, although officially, Bahasa Malaysia is to be used as the medium in the Courts, in practice, in the High Court, Court of Appeal and Federal Court, proceedings are often conducted in English.)  Other languages used include Mandarin, various Chinese dialects and Tamil.

Business Indices

The World Bank’s Doing Business Guide 2020 has ranked Malaysia in 12th place.

AT Kearney’s Global Services Location Index (GSLI), a ranking of 50 countries based on their potential and ability to deliver business services to global companies, has since inception in 2004 identified locations that can best provide information technology, business process outsourcing and voice services based on countries’ financial attractiveness, people skills, availability and business environment.  The 2019 edition of the GSLI included a new digital resonance category to capture the effects of digital transformation, especially automation and cybersecurity, on the global services landscape.  It is noteworthy that Malaysia has been in the top 3 of the GSLI since 2004.

The Global Innovation Index measures the innovation performance of some 130 countries, using over 80 indicators including political environment, education, infrastructure and business sophistication. In 2019, Malaysia ranked 35th, being categorised as an “Upper Middle income” country based on its gross national income per capita.

Membership in ASEAN

Malaysia is a member state of ASEAN – the Association of South-East Asian Nations – which has established the ASEAN Free Trade Area (AFTA) among its members, to inter alia attract foreign direct investments and expand intra-ASEAN trade and investments.

Among AFTA’S benefits is the “Common Effective Preferential Tariff” system which promotes the free flow of goods among members with the gradual reduction and elimination of tariffs within ASEAN.  Free trade agreements have also been signed by ASEAN with some Asia-Pacific countries.

Foreign Investment

Restrictions on foreign investment have been progressively reduced for sectors such as business services, departmental and specialty stores, healthcare, technology and tourism.   However, there are still limits placed on foreign ownership in sectors such as insurance and banks.

Exchange Controls

Generally speaking, Malaysian residents are able to freely transfer foreign currency to non-residents to settle payments.  Likewise, the transfer of Ringgit Malaysia (“RM”) from residents to non-residents to pay for goods and/or service is permitted; however, this must be done using the non-resident’s external account opened with any bank in Malaysia.

Private companies limited by shares are able to repatriate their dividends out of Malaysia, with notification to Bank Negara (the Central Bank of Malaysia).

Common business vehicles

Common business vehicles used by foreign investors in Malaysia are:

(a)   locally incorporated companies;

(b)   branches of foreign companies;

(c)   unincorporated joint ventures.

A foreign investor desiring to do business would typically opt to incorporate a private company limited by shares since the company would be a separate legal entity, shielding shareholders from liability for the debts of the company.

Accounting Practices

The accounting profession in Malaysia is regulated by the Malaysian Institute of Accountants (MIA).   MIA sets the by-laws and auditing standards for the accountancy profession which are in line with the standards issued by the International Federation of Accountants and the International Auditing and Assurance Standards Board.  Accounting standards are issued by the Malaysian Accounting Standards Board (MASB) as empowered by the Financial Reporting Act 1997. The MASB’s standards are generally consistent with the International Financial Reporting Standards issued by the International Accounting Standards Board.

Employment Laws

There is a considerable body of laws for the protection of employees in Malaysia.  For example, aside from statutory benefits for employees in the lower-income bracket, the Industrial Relations Act 1967 provides that an employee (regardless of his salary) who alleges that he has been dismissed without “just cause or excuse” may refer to the relevant authority to seek reinstatement.  Proceedings are conducted in the Industrial Court.

Statutory Employment Benefits

The Employment Act 1955 (“EA”) lays down mandatory employees’ benefits and rights in Peninsular Malaysia and the Federal Territory of Labuan (labour law in Sabah and Sarawak is governed by separate state laws). The EA applies to the following:

  • Malaysian/foreign employees each earning RM2,000 or less monthly; and
  • employees in certain classes, such as labourers (including supervisors), drivers, mechanics, seafarers and domestic servants.

The employment benefits available under the EA include:

  • paid annual leave;
  • paid annual sick leave (non-hospitalisation);
  • paid hospitalisation leave;
  • paid maternity leave;
  • regulated overtime pay; and
  • maximum work hours.

Employees who do not fall under the EA can enforce their employment rights under common law.

Minimum wages

The law on minimum wages in Malaysia, revised effective 1st February 2020, applies to all employees except domestic servants.

The Minimum Wages Order 2020 (“MWO”) categorises the minimum wages according to the mode of pay (monthly/daily/hourly) and the place of employment, the prescribed minimum wages for employees working in any of the urban locations named in the MWO being higher than for those working in other locations.

Foreign employees

Foreign employees (i.e. who are not citizens nor permanent residents of Malaysia) are classified as “foreign workers” and “expatriates”.  Employment passes (ie work permits) are required to be held by foreign employees.

Employers may only employ foreign workers for certain approved sectors, namely, manufacturing, plantation, agriculture, construction, mining and quarrying and the services sector, whereas expatriates may be employed in all sectors, subject to certain conditions.

At present, a company that wishes to hire expatriates must submit a projection to the Expatriates Services Division (“ESD”) of the Malaysian Immigration Department as to the number of expatriates it intends to hire for the year.  This projection should be based on:

  • the number of potential expatriates the company has identified as well as existing expatriates already hired; and
  • its annual business plan and/or project requirements.

The employment passes for expatriates are:

  • the employment pass which permits a maximum 5-year term of employment for an expatriate earning at least RM10,000 monthly;
  • the employment pass which permits a maximum 2-year term of employment for an expatriate earning between RM5,000 and RM9,999 monthly.

Expatriates who are employed on a temporary basis should obtain Professional Visit Passes – valid for 12 months (non-renewable).

The minimum educational qualification and experience required for applying for the relevant passes are:

  • a degree, with 3 years of relevant experience;
  • a diploma, with 5 years of relevant experience; or
  • a technical certificate or equivalent, with 7 years of relevant experience.

Subject to any minimum share capital requirement that may be imposed in respect of a specific sector, the present policy appears to be that a wholly foreign-owned Malaysian incorporated company applying to employ an expatriate must have a minimum share capital of RM500,000.

Contributions to the Employees’ Provident Fund

Pursuant to the Employees’ Provident Fund Act 1991, employers in the private sector must make monthly contributions (from their own funds and also by deducting a portion of the employees’ salaries) to the Employees’ Provident Fund (“EPF”) for the benefit of employees who are Malaysian citizens or permanent residents, regardless of their salaries. In regard to non-permanent residents, although EPF contributions are not mandatory, they may opt to receive and contribute to their EPF by providing written notice to both the EPF Board and their employers.

The amounts of contributions vary according to the employee’s age, salary and citizenship.

Social Security Contribution

Employers must make monthly contributions (from their own funds and also by deducting a portion of the employees’ salaries) to the Employees’ Social Security Organization for the benefit of employees (other than those excluded by law) who are Malaysian citizens or permanent residents, capped at a monthly salary of RM4,000, in accordance with the rates set out in the Employees’ Social Security Act 1969.

Employment insurance system

Further, employees (other than those excluded by law) in the private sector receive the benefit of mandatory contributions by their employers (and from their own salaries) to an employment insurance fund pursuant to the Employment Insurance System Act 2017.

Retirement age

The minimum retirement age in Malaysia is 60 years old.

TAX

Income Tax

Income tax is the primary form of direct taxation in Malaysia. The scope of income tax is essentially territorial, tax being chargeable upon the income of any person accruing in or derived from Malaysia.  The rate for companies is 24%, charged on the net chargeable income (i.e. gross income deducted by allowable deductions/expenses).

Taxpayers must assess themselves to tax. A rigorous tax audit and investigation system complements the self-assessment system.

Companies are required to pay tax in advance by way of an estimate of tax; penalties apply for underestimation.

A separate form of income tax on upstream petroleum activities applies in the form of Petroleum Income Tax.

Personal Income Tax

The number of days the individual is present in Malaysia determines whether he/she is resident in Malaysia for personal income tax purposes. The concepts of nationality and domicile are irrelevant.

Resident individuals are taxed at graduated rates on income with a Malaysian source, after deduction of personal reliefs, the highest rate being 30% for chargeable income above RM2,000,000.  Non-resident individuals are taxed at a flat rate of 30% and are not eligible for personal reliefs.

Double Tax Treaties

Malaysia has executed Double Tax Agreements with some 75 countries with another 25 under negotiation.

Withholding Tax

Withholding tax applies in certain cases, particularly in relation to:

(a)   special classes of income;

(b)   contract payments; and

(c)   interest and royalty income.

Broadly speaking, gross income of non-residents falling within any of the above is deemed to be derived from Malaysia if responsibility for the payment lies with a resident or if the payment is charged as an outgoing or expense in the accounts of a business carried on in Malaysia.

Special Classes of Income

The following income of non-residents is caught under section 4A of the Income Tax Act, 1967 (“ITA”):

(a)   amounts paid in consideration of services rendered by the person or his employee in connection with the use of property or rights belonging to, or the installation or operation of any plant, machinery or other apparatus purchased from, such person;

(b)   amounts paid in consideration of any advice given, or assistance or services rendered in connection with the management or administration of any scientific, industrial or commercial undertaking, venture, project or scheme; or

(c)   rent or other payments made under any agreement or arrangement for the use of any moveable property.

The Inland Revenue has interpreted section 4A extremely widely to cover any type of service (whether technical or non-technical).  The tax here is the final tax, the rate being a flat 10% of the gross payment.

Services that are performed and rendered outside Malaysia are exempted.

Contract Payments

Contract payments made to non-residents in respect of services under a contract are subject to withholding tax at the rate of 10%. Where a non-resident has employees in Malaysia involved in the contract, a further 3% withholding tax is to be deducted. The withholding tax is not the final tax. On submission of the relevant return, the non-resident can claim a refund of any tax overpaid by withholding.

Interest and Royalty Income

Income of a non-resident consisting of interest (other than interest on an approved loan or a long term loan or interest paid or credited by any person carrying on banking business in Malaysia) derived from Malaysia is taxed at 15% of the gross amount. Income of a non-resident consisting of royalty derived from Malaysia is taxed at 10% of the gross amount.

Base Erosion and Profit Shifting (BEPS)

A special team established to address BEPS issues has been actively and aggressively assessing multi-nationals and has taken an interest in the e-commerce industry. There are plans to amend the ITA to cover the taxation of digital economy and e-commerce activities based on BEPS recommendations.

Capital Gains Tax

Malaysia has a limited form of capital gains tax: gains from the disposal of real properties and shares in real property companies are subject to real property capital gains tax. The following rates apply:

 

 

Disposal by a company incorporated in Malaysia or trustee of a trust

 

 

From 30% – 10% for disposals within the first 3 years after acquisition to disposals in the 6th year and thereafter.

 

 

Disposal by a non-citizen or non- permanent resident, or an executor of the estate of a non-citizen or non-permanent resident, or a company not incorporated in Malaysia

 

 

From 30% – 10% for disposals within the first 5 years to disposals in the 6th year and thereafter.

 

 

Disposals by others

 

 

From 30% – 5% for disposals within the first 3 years to disposals in the 6th year and thereafter.

 

 

 

Stamp Duty

Stamp duty is chargeable on instruments. Generally, stamp duty is fixed (i.e. RM10) or at ad valorem, applying, e.g. to a conveyance of property, loan and security transactions and contracts for services at rates of 0.1% to 0.4% of the value of the transaction. .

Sales Tax and Service Tax

Sales tax is charged and levied on all taxable goods:

(a)   manufactured in Malaysia by a registered manufacturer and sold, used or disposed by him; or

(b)   imported into Malaysia by any person.

The sales tax rate ranges from 5% to 10%, depending on the goods.

Service tax is charged on:

(a)   any taxable service provided in Malaysia by a registered person in carrying on his business; or

(b)   any imported taxable service.

Only service providers that provide taxable services with turnover exceeding RM500,000 in a 12-month period and food and beverage related businesses with turnover exceeding RM1,500,000 in a 12-month period are required to be registered for service tax.

Further, service tax is charged on any digital service provided by a foreign registered person. Any foreigner providing any digital service to a consumer must be registered if the total value of all digital services provided in a 12-month period exceeds RM500,000.

The service tax rate (other than for credit card or charge card services) is 6% of the value of the taxable service.

Sales and service tax is a single-tier type of tax that can have a multiplying effect across the supply chain.

Customs Duty and Excise Duty

Customs duty is payable on goods imported into or exported from Malaysia.  Excise duty is payable on certain goods imported into Malaysia.

Tax Incentives

Malaysian has a complex labyrinth of tax incentives including double deductions, capital investment based allowances and tax holidays. Specialised and tailor-made incentives for large scale and strategic investment are also available.

Intellectual property protection

The work of regulating and supervising matters relating to intellectual property (“IP) and IP laws, including the enforcement of IP laws and the protection of IP rights, is the responsibility of the Intellectual Property Corporation of Malaysia (“MyIPO”), a statutory body established under the Intellectual Property Corporation of Malaysia Act 2002.

The IP rights capable of protection in Malaysia are:

  • copyright;
  • trademarks;
  • patents;
  • industrial designs;
  • trade secrets and confidential information.

Copyright

The creator of any literary work, music, film, broadcast, artistic work and/or sound recording is entitled to protect his work in Malaysia under the Copyright Act 1987 (“CA”) and/or common law.  If he is a citizen or permanent resident of Malaysia, he may register his copyright by submitting a notification under the Copyright (Voluntary Notification) Regulations 2012.  If the Director General of MyIPO approves the submission, he will inform the copyright owner in writing that the notification of copyright has been entered into the Register of Copyright. A certified extract from the said Register or an affidavit or a statutory declaration prepared in accordance with section 42 of the CA shall serve as prima facie evidence in a Malaysian Court of copyright over the work.

As Malaysia is a contracting state to the Berne Convention for the Protection of Literary and Artistic Works 1886, a work first published in another contracting state or where the author of the work is a national of another contracting state must be given the same protection in Malaysia which that other state gives its own nationals.

Trademarks

Trademarks are protected in Malaysia:

  • pursuant to the Trademarks Act 2019 (“TMA”) through registration with the Trademark Registry, under the MyIPO; or
  • under common law, by using the mark in business (“unregistered trademarks”).

A trademark registration is good for 10 years, but can be renewed by applying 6 months before expiry.  Although unregistered trademarks may be protected to an extent under common law, organisations are advised to register their trademarks for maximum protection. Under the TMA, certain causes of action for infringement can only be initiated if the trademark is registered.

Malaysia is a member of the World Intellectual Property Organisation (“WIPO”) and has recently acceded to the Madrid Protocol. This means that a foreign investor intending to do business in Malaysia, and whose existing trademarks have been registered in a territory which is also a signatory to the Madrid Protocol, can file an international trademark protection application with WIPO designating Malaysia as an additional territory of protection and thereby protect its trademarks in Malaysia.

Patents

Inventions are protected in Malaysia through the Patents Act 1983 and its subsidiary regulations, provided that they do not fall within the list of non-patentable inventions provided in the Act.  A patent is protected for 20 years from the filing date of the application, subject to payment of the yearly annuity fees. A utility innovation is protected for 10 years from the filing date, subject to payment of the yearly annuity fees and may be extended for 2 further period of 5 years each, provided the owner can prove that the innovation is still in commercial use in Malaysia.

Malaysia is a contracting state to the Patent Cooperation Treaty, a unified procedure for filing patent applications to protect inventions in each of its contracting states.

Industrial Designs

Industrial designs are protected in Malaysia through the Industrial Designs Act 1996 and its subsidiary regulations.  Once registered, the industrial design can be protected up to 25 years, subject to extension fees being paid every 5 years

Trade secrets and confidential information

Trade secrets and other confidential information are protected under common law, not statute

Personal Data protection

The Law

The Personal Data Protection Act 2010 (the “PDPA”) governs “persons” (ie individuals or other entities):

  • established in Malaysia; and
  • not established in Malaysia, but which use equipment in Malaysia for processing personal data otherwise than for the purposes of transit through Malaysia.

In a nutshell, the PDPA regulates the “processing” (which includes collecting, recording, holding, storing, disclosing and destroying) of an individual’s personal data in commercial transactions by any “data user” – being a person who processes any personal data or has control over or authorises the processing of any personal data, but does not include a data processor who processes personal data solely on behalf of the data user and not for his own purpose.  The PDPA does not apply to any personal data processed outside Malaysia unless it is intended to be further processed in Malaysia.

Under the PDPA, data users must comply with the following “Data Protection Principles”:

General Principle:

      • process an individual’s personal data only with his consent and if the processing is “necessary” and for a lawful purpose directly related to an activity of the data user;

Notice and Choice Principle:

      • inform individuals in writing as soon as practicable, in both English and Malay, that their personal data is being processed (providing a description), the purposes for which their personal data is being collected and processed and other matters listed in the PDPA;

Disclosure Principle:

      • save with the data user’s consent, not to disclose the personal data for any purpose other than (i) that for which the personal data was to be disclosed at the time of collection or (ii) a purpose directly to (i), or to any party other than one in a specified class;

Security Principle:

      • take practical steps to protect personal data being processed from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction and ensure that any data processor it engages provides sufficient guarantees in respect of the technical and organisational security measures governing the processing to be carried out;

Retention Principle:

      • not keep any personal data longer than necessary to fulfill the purpose for which it was processed and take all reasonable steps to ensure that personal data which is no longer required is destroyed or permanently deleted;

Data Integrity Principle:

      • ensure that all personal data is accurate, complete, not misleading and kept up-to-date, by having regard to the purpose, including any directly related purpose, for which the personal data was collected and further processed;

Access Principle:

      • ensure that individuals are given access to their personal data and would be able to correct/update it except where compliance with a request to such access or correction is refused under the PDPA.

Registration of data users

Certain classes of data users, including banking/financial institutions, communications and insurance, are required to register under the PDPA.

Cross-border transfer of data

A data user may only transfer an individual’s personal data outside of Malaysia with the individual’s consent or in certain limited situations.

 

Date: 10th February 2020