Company Secretary in Malaysia | B Plus Consulting

Company Secretary

ABOUT COMPANY SECRETARY UNDER COMPANIES ACT 2016

The secretary of a company must be a natural person of full age who has his principal or only place of residence in Malaysia. He must be a member of a prescribed body or is licensed by the Registrar of Companies. The company must also appoint an approved company auditor conduct and prepare the account, audit and tax as well.
The use of word Secretary in the name of this specialization is a bit misleading for one who is new to the concept. A Company Secretary is a professional whose role in a corporate set up in that of an adviser for legal matters. He or She is a very important member of the Company’s Management to handle all paperwork’s, statutory documents and procedural matters that running of the company involves. A Company Secretary has been recognized by corporate law as one of the officers of the Company. The knowledge that he or she acquires during training makes them versatile enough to carry out functions in various areas like Finance, Accounts, Legal Administrations and Personnel Division.
In large and medium size business organizations, a company secretary role includes incorporation of the Company, processing applications for management appointments, remunerations, inter-corporate investment and loans, handling public issues including listing of shares and debentures, conducting both board and general meeting, maintenance of records, registers and minutes of the meetings. In short, it would suffice to say that all legal and procedural matters as per the Companies Act and all other applicable laws fall under the duties of a Company Secretary.
A company secretary of today is a company officer who is endorsed with heavier responsibilities and a greater power, duties which demand for ethical behavior from company secretaries at all times.

COMPANY DIRECTOR’S RIGHTS TO TERMINATE THE COMPANY SECRETARY SERVICES

Usually a company who is dissatisfied with the level and quality of its company secretarial services reserves the right to resign its company secretary and appoint a new company secretary to replace the existing secretary of the company. This happens when there is difficulty for the Board and its shareholders or employees to communicate with the company secretary. The company secretary is an important person to provide company documents and lodge documents to the registrar and certify statutory documents in accordance with the provisions of the Companies Act 2016 that have replaced the Companies Act 1965.
The Board is given the option of appointing a new company secretary at any time if it deems necessary . Here you can appoint our Company Secretary once your company is fully established or terminates the existing company secretary by appointing our company secretary. Please visit our Secretarial Firm or our Registered Office to get further advice.

SECTION 235: REQUIREMENT FOR COMPANY SECRETARY

(1) A company shall have at least one company secretary who shall-
1. (a) A true person;
2. (b) Up to eighteen years of age; and
3. (c) a citizen or permanent resident of Malaysia,
which shall ordinarily settle in Malaysia by having a prime place of residence in Malaysia.
(2) A secretary shall-
1. (a) a member of a body specified in the Fourth Schedule; or
2. (b) a person licensed by the Companies Commission of Malaysia under section 20G of the Companies Commission of Malaysia Act 2001.
(3) For the purpose of paragraph (2) (a), the Minister may appoint any professional body or any other body by notification in the Gazette and may impose such terms and conditions as he thinks fit.
(4) The company and every director who contravenes this section commits an offense.

SECTION 236: APPOINTMENT OF A COMPANY SECRETARY

The Board of Directors shall appoint a company secretary and determine the terms and conditions of the appointment. The appointment of the first company secretary shall be made within thirty days from the date of the incorporation of the company. No person shall be appointed as a company secretary unless he / she agrees in writing to be appointed as a company secretary. He is the secretary of a qualified company under section 235 (2) and he is not a person to be disqualified under section 238 The Company and every person who contravenes this section commits an offense.

SECTION 237: RESIGNATION OF A COMPANY SECRETARY

Subject to the constitution or term of appointment, the company secretary may resign by giving notice to the Company’s Board of Directors.
If no director is contactable at the last known residential address, the company secretary may, notwithstanding subsection 235 (1), notify the Registrar of facts of his intention to resign.
The company secretary shall cease to be the company secretary at the expiration of thirty days from the date of the notice being lodged under subsection (1) or the period specified in the constitution or terms of appointment, as the case may be or when it expires thirty days from the date of notice to the Registrar under subsection (2).
Nothing in subsections (1) and (2) may release the company secretary from liability for any act or omission done before the secretary vacates his office.

SECTION 238: DISQUALIFICATION TO ACT AS A SECRETARY

A person shall be disqualified from acting as a company secretary if: –
1. It is an undisclosed banker
2. He is convicted either within Malaysia or outside Malaysia for any offense referred to in section 198
3. He ceased to be the holder of a certificate of practice issued by the Registrar of Companies under section 241.
4. Notwithstanding subsection (1), if the Registrar is of the opinion that a person fails to act with an honest or improper use while discharging his duties as a company secretary, the Registrar of the Company may require that person to indicate the reason why his practicing certificate should not be disqualified from acting as a company secretary.
5. If a person continues to act as a company secretary of a company after he is disqualified from being in this section without the consent of the Court, the secretary and every director knowingly authorizing that person to act in that capacity commits an offense.

SECTION 239: REMOVAL OF THE COMPANY SECRETARY FROM OFFICE

The Board may remove a secretary from his office in accordance with the terms of appointment or the constitution.

SECTION 240: OFFICE OF COMPANY SECRETARY SHALL NOT BE LEFT VACANT

The office of the secretary of a company shall not left vacant for more than thirty days at any one time.

SECTION 241: REQUIREMENT FOR THE COMPANY SECRETARY TO REGISTER WITH REGISTRAR OF COMPANIES

(1) Any person qualified to act as a company secretary and who intends to act as a company secretary shall be registered under this section before it may act as a company secretary.
(2) The Registrar shall cause a register of secretaries to be kept and shall cause to be registered on the register in relation to the secretary of the company-
1. (a) The name of the company secretary;
2. (b) The residence address and business address of the company secretary;
3. (c) The particulars of eligibility referred to in subsection 235 (2); and
4. (d) Any other information as the Registrar may require.
(3) The Registrar, after registering the person, may-
1. (a) It is required to submit any evidence until the Registrar is satisfied with the qualifications set out under subsection 235 (2);
2. (b) Impose any other conditions as it deems fit.
(4) Where the requirement under subsection (3) is fulfilled, the Registrar shall-
1. (a) Noting the particulars in the secretary’s list; and
2. (b) Issue a practicing certificate in such form as the Registrar may determine.
(5) On or after the coming into operation of this Act, a person who becomes a company secretary and who is not registered under subsection (1) may continue to act as secretary for the company for a period of not more than twelve months or such longer period which may be allowed by the Registrar.
(6) Upon the expiration of the period referred to in subsection (5), a person who fails to comply with the requirement to register is deemed not registered under this section.
(7) The Minister shall have power to make regulations on any matter relating to any practicing certificate issued under this section.
(8) Any person who contravenes subsection (1) commits an offense.

SECTION 58: DUTY TO NOTIFY OF PARTICULARS AND CHANGE OF DIRECTORS, MANAGERS AND COMPANIES SECRETARY

(1) A company shall notify the Registrar within fourteen days from the date-
1. (a) Upon its incorporation, the particulars required to be specified under section 57;
2. (b) Any change of name, address of residence and other prescribed particulars of any director, manager or secretary or address of the service of any director;
3. (c) After a person ceases to be, or as a director of the company, the particulars required to be specified in the register required under section 57.
4. (d) After a person becomes a manager or company secretary, specifying the full name, address and other work, if any, the person; and
5. (e) After a person ceases to be a manager or company secretary.
(2) The Registrar shall determine the form, means and extent of information to be handed over under subsection (1)
(3) The notice of a person who is a director of the company shall-
1. (a) Contains a statement of the particulars of the new director as specified in paragraph 57 (1) (a); and
2. (b) Included with an agreement to act on that nature by that person.
(4) The company and every officer contemplating this section commits an offense and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit and, in the case of a continuing offense, to a further fine not exceeding five hundred ringgit for each day the offense continues after conviction.

SECTION 236: HOW TO REMOVE AND APPOINT COMPANY SECRETARY

Send a letter of resignation to your existing company secretary either by fax or by hand signed and approved by the company directors and provide the details of the new company secretary’s name, residential address and secretary licensed no.
The existing company secretary is required to release the company statutory documents such as the original file, statutory books and the company seal once its updated. The Board should hand over to the new secretary with an official letter informing the company secretary that the company wishes to appoint him to handle company secretarial matters.
For your information, one-month period given to the board of directors of the company to find and appoint a new company secretary from the date of resignation of the company secretary.
Submission of documents related to the appointment and resignation of secretary through form 49 can be made either by the existing company secretary or a newly appointed secretary.
A company secretary is an officer appointed by the Board of Directors through meetings of the Board of Directors and is empowered to appoint or dismiss a company secretary at any desired time.

DOCUMENTS TO BE LODGE FOR APPOINTMENT AND RESIGNATION OF COMPANY SECRETARY TO THE REGISTRAR OF COMPANIES

The Director may resign the company secretary by notifying him in writing under the company the letter head and send the resignation letter to the company’s secretary.
The existing company’s secretary must produce he/her resignation letter to enable the new company secretary to prepare the resolution and lodge to the registrar.
Here is a document required:–
1. Notice of appointment or resignation of company secretary.
2. Notice of change of registered address of the Company.
3. Resolution of the Board for appointment for resignation of company secretary and change of registered office address and resolution must be signed by the Board of Directors
4. Company statutory book, company seal and company’s original file must handed over to the new secretary.

PROFESSION AS A COMPANY SECRETARY

The responsibility of your company secretary is not as easy as you think and this is why your company secretary has the right to receive monthly remuneration in the form of a company secretary’s fees and it is entitled to charge professional charges for secretarial works.
The Company Secretary also reserves the right to resign at any time if it finds that the company does not operate in accordance with the law or company fails to cooperate to comply with the Companies Act 2016.
The company member shall give full responsibility to pay the company secretary services fees for the purpose to use company’s secretary’s license and payment must make when the invoice is issued.
The company also needs to respect the profession of the company secretary as he is an individual acting on behalf of the company with the Companies Commission of Malaysia and other requlated bodies.
Fees are imposed to ensure that the Company’s Company Firms continue to survive and payments made by the company will be used to finance the operating costs of the Firms and staff involved.

CODE OF ETHICS OF COMPANY SECRETARIES

In the performance of his duties, a company secretary should always observe the following codes:
Strive for professional competency and at all times exhibit a high degree of skill and proficiency in the performance of the duties of his office;
At all times, exercise the utmost good faith and act both responsibly and honestly with reasonable care and due diligence in the discharge of the duties of his office;
At all times, strive to assist the company towards its prescribed objectives based on the tenets of moral responsibility, efficiency, and effectiveness in administration;
Have a clear understanding of the aims and purpose of the company as well as the powers and restrictions as provided in the Memorandum and Articles of Association of the company;
Be knowledgeable of regulations and procedures for meetings, particularly quorum requirements, voting procedures and proxy provisions and be responsible for the proper administration of meetings;
Neither direct, for his own advantage, any business opportunity that the company is pursuing nor use or disclose to any party any confidential information obtained by reason of his office, for his own advantage or that of others;
Adopt an objective and positive attitude and provide full co-operation for common benefit when dealing with government authorities or regulatory bodies;
Disclose to the board of directors or an appropriate public officer any information within his knowledge that he honestly believes suggests that a fraud is being, or is likely to be, practiced by the company or by any of its directors or employees;
Assist and advise the directors to ensure that the company, at all times, maintains an effective system of internal control for the keeping of the necessary registers and accounting records;
At all times, be impartial in his dealings with shareholders, directors and, without fear or favor, use his best Endeavors to ensure that the directors and the company comply with the relevant legislation, contractual obligations and other relevant requirements;
Be present in person, or ensure that in his absence he is represented, at the company’s registered office on the days and at the hours that the office is accessible to the public;
Advise the board of directors so that no policy which is in conflict with the interest of the company’s stakeholders is adopted by the company;
Be aware of all reporting and other requirements imposed by the statute under which the company is incorporated;
Be present or represented at company meetings and not allow himself or his representative to be excluded or withdrawn from those meetings in a way that would prejudice his professional responsibilities as secretary of the company.