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Halim Hong & Quek: Law Firm in KL Malaysia, Legal Services Kuala Lumpur

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Empower Faq | HHQ | Law Firm in KL Malaysia

Authentication by the Emb y of the People's Republic of China (Emb y) Q: Why do we need to have do ents authenticated by the Emb y? A: In accordance with international practice and the consular, the purpose of authentication is to ensure that notarial deeds issued in one country can be acknowledged by relevant authorities in another country. If a deed is authenticated by the Emb y, then such authenticated deeds shall have its due legal effect and the authenticity of the seal or signature on the deeds shall not be doubted. Q: What is the procedure for the authentication of do ents by the Emb y in Malaysia and how long does the whole process usually takes? A: Based on the common industrial practice in handling the authentication of do ents together with our previous experience and information obtained from the relevant authorities: 3 to 7 working days, subject to the length and complexity of the contents of the do ents for translation of the do ents by a Certified Court Interpreter/Translator (if the do ent to be authenticated is not in Chinese or English language). 1 to 2 working days for notarisation of the do ents by Notary Public. 1 to 2 working days for authentication of the do ents by the Consular Division, Ministry of Foreign Affairs in Malaysia. 4 working days upon submission and subject to all required do ents being provided for authentication of the do ents by the Emb y. Total: 9 to 15 working days (approx.) Notes: The above procedures and time period apply to authentication by the Emb y only. The requirements for the authentication of do ents may vary country by country. Some judicial do ent or government issued do ent such as court decree, birth certificate, death certificate, marriage certificate, and single status affidavit does not need to be notarized. A certified copy of this kind of do ent should be obtained and submitted directly to Ministry of Foreign Affairs of Malaysia for legalization. Q: What are the do ents required for the application of authentication by the Emb y? A : Complete and sign the Application Form of Consular Legalization of the Emb y/Consulate of the People's Republic of China. A photocopy of the photo/information page of the applicant's p port. A photocopy of the permanent resident card, study permit or work permit, if the applicant is not a Malaysian citizen. If an applicant has entrusted someone else to submit the application on his/her behalf, the original and a photocopy of both the entrusted person's and the applicant's p port or IC (For non-Malaysia citizen, a permanent resident card or study/work permit) should be provided. *For special cases, authorization letter from the applicant should be provided, i.e. Entrusted person should provide letter of authorization from his agency and his/her p port or IC with photos in order to submit the application. If the do ent is of a company or an organization, a photocopy of the p port or ID (and a permanent resident card or study/work permit, if applicable) of the company's legal representative, an official company do ent that can prove the person's legal representative status, business license and change of company name (if applicable) should be submitted. The original and photocopy of the do ents to be authenticated after been legalized and authenticated by the Notary Public and Malaysia Ministry of Foreign Affairs or its authentication authorities. Other do ents which the Emb y or Consulate General considers as necessary. Notes: The do ent with more than one page must be properly bound as a volume to avoid any substitution. Sealing wax, eyelet and paging seal should be applied to ensure the integrity of the do ents. For more information on the authentication of do ents by the Emb y of the People's Republic of China, please visit Issues relating to e-commerce transactions Q: Can I set up online business without incorporating my business? A : No. If you set up online business without registration, any purchase and selling activity related to your products will be considered illegal and you are unable to claim your rights in case of fraud and corruption because your business has no shelter. Q: How do I set up my online business? A: You need to register your business with Suruhanjaya Syarikat Malaysia (SSM) whether as sole proprietor, partnership or company. You will be required to fill up registration form containing relevant information including the business name, commencement date of business, principal place of business, address of the branch (if any), information of owner and partners, type of business carried out. For business names other than the name contained in your NRIC, you may need to get prior approval from Registrar of Business. You may visit any SSM branches to register your business. Q: I have purchased online goods with overseas traders and found that the goods are faulty. Can I claim from the overseas trader? A: Yes, you may file your claim with the Tribunal for Consumer Claims Malaysia (TCCM) provided your complaints fall under the scope of Consumer Protection Act which among others, includes claim for misleading and false misrepresentation, safety of goods, unfair contract terms and guarantees for supply of goods. The CPA has effect on any contract terms which applies the law of another country. Q: What is the scope of the tribunal? A: The tribunal has jurisdiction in respect of any claim not more than RM25,000 filed within 3 years of the dispute but the tribunal has no jurisdiction on the following claims: [a] claims arising from personal injury or deaths; [b] claims for recovery of land or interest in land; [c] claims where title of the land is disputed; [d] dispute concerning entitlement of person under will; [e] goodwill or any chose in action (rights under an ignment]; [f] trade secret or intellectual property. Q: What if my amount of claim exceeds RM25,000? A: You may file your claim in the Tribunal if parties enter into agreement in writing that the Tribunal shall have jurisdiction to hear the claim. The agreement is to be made before filing of a claim in the Tribunal. If claim has been filed before you enter into such agreement, you may still enter into such agreement before the Tribunal records any agreed settlement. You must be prepared to abandon the amount of claim in excess of the limit of RM25,000. The award by the Tribunal in any event would not exceed the limit of RM25,000. Q: How do I file a claim in the Tribunal? A: You may file a claim in the Tribunal by filing Form 1. The form is available free of charge from all tribunal branches or you can from e-Tribunal portal at Q: Can I be represented by lawyers? A: No lawyers are allowed to represent either of the parties but you may have your family members or friends to ist you. Q: What happens after I have filed my claim in the Tribunal? A: You have to serve your claim on the trader and both parties are required to attend a hearing of the claim on the date fixed by the Tribunal. You may visit the Minister of Domestic, Trade, Cooperatives and Consumerism website at for further details. Q: What can the traders do upon receiving my claim? A: The trader may contact you to either explain the dispute or to propose settlement. If there is no settlement, the trader would file his defence within 14 days after been served with your claim. A format of a defence is in Form 2 which can be ed at Q: What happens when I attend my case at the tribunal? A: You would gather all relevant information and your witness who supports your case to testify during the hearing. The parties would be required to present the facts of the case. After hearing the case, the tribunal will issue an award based on essment of the facts and the law involved. Parties are to comply with the awards, otherwise it becomes a criminal offence under the Consumer Protection Act. You may also make a complaint of any non-compliance of an award with the Enforcement Division of Ministry of Domestic, Trade, Cooperatives and Consmerism. Right to transfer an employee by an employer Q: Does my employer have a right to transfer me from one department to another department or from one post to another post within an organization? A : Yes, generally the right to transfer an employee from one to another department or from one post to another post is the prerogative of the management. Nevertheless, an employer has to be careful when exercising its right to transfer an employee. The power to transfer is subject to the following restrictions: There is nothing to the contrary in the terms of employment The management has acted bona fide and in the interest of its business The management is not actuated by any indirect motive or any kind of mala fide The transfer is not made for the purpose of har ing and victimizing the employee. The transfer does not involve a change in the conditions of service. Q: Must there be an express term of the right to transfer in a contract of service? A: No. The right to transfer is an implied right of an employer. Q: How do I show that the transfer is contrary to the terms of employment? A: Cir stances vary on facts of each case. Common examples include transfer of a job function to another job function, such as from managerial to executive position, a change of reporting personnel where instead of reporting to the chief executive officer, you are now required to report to the sales manager, a transfer from a company in service industry to another organization in different industry which you will not be suited. Q: Can I refuse to be transferred if I can show that the transfer is contrary to the terms of employee or bad faith on the employer? A: Yes, an employee may refuse to be transferred if he/she is able to show that (1) the transfer is contrary to the terms of employment or (2) the transfer is not made in good faith. Q: Can the employer dismiss me if I refuse to be transferred in the above case? A: As long as you can prove the transfer falls under any of the cir stances above and you were dismissed as a result of that, the dismissal would amount to unfair dismissal without just cause and excuse. Q: Can an employer transfer me to another organization? A: An employer has to be careful when exercising its right to transfer an employee to another organization. This is especially so if the transferee company is not within the essential unity of group enterprise, for example, where it has no inter-dependence or community of financial control, functional integrality, unity of management and control as well as community of manpower, including: There was no common senior management There was no evidence that employees within the group were transferrable from one company to another within the group There was no evidence of functional integrity (functional inter-dependence of the nature that one company cannot exist conveniently and reasonable without the other company and were inter-dependent). There was no inter-dependence or community of financial control between the companies and no evidence of mixing-up of capital or distribution of capital amongst the Group; and The Employer and the transferee were involved in different industries and there was no unity of purpose between the companies in the Group. In such cir stances, consent of the employee is required for the transfer. Q: Can my employer dismiss me for my refusal to be transferred to another organization which has no link to the employer company? A: No, if your employer dismisses you as a result of your refusal to be transferred to another entity which has no link to the employer, that would amount to dismissal without just cause and excuse. Q: What should I do in the event I was dismissed on the above reason? A: File your representation to the office of Director General of Industrial Relations (DGIR) under Section 20(1) of the Industrial Relations Act 1967 within 60 days from the date of dismissal. You may refer to our Legal Template section under Empower for the representation form. For more information, you may contact us at [email protected]. Divorce Proceedings and Related Claims Q: Can I file for divorce in Malaysia? A: Yes, provided that your marriage is registered or deemed to be registered in Malaysia. Q: What is the difference between joint divorce petition and single petition? A: In a joint divorce petition, both parties mutually agree to dissolve their marriage with agreed arrangements pertaining to matters relevant in the family such as children, ets and maintenance payments. There is no requirement to obtain a tribunal certificate before filing of a joint petition. Whereas single petition refers to a petition where parties have not mutually agreed to dissolve their marriage and/or there is no agreement as to the terms of dissolution of marriage. Prior to filing of a single petition, both parties are required to undergo a conciliatory process. Q: Where do I go for conciliatory process? A: The conciliatory process is conducted by a conciliatory body, usually the marriage tribunal under the purview of the National Registration Department. Q: Which marriage tribunal do I refer my case to? A: Parties usually refer to the marriage tribunal in the area they are residing. Q: What if the parties are living separately in different areas? A: They are required to refer to the marriage tribunal for the area where the parties have last resided together. Q: Must both parties attend the conciliatory process? A: Yes, it is compulsory for both parties to attend the conciliatory process unless a Court order for dispensation from attendance is obtained. Q: How long is the conciliatory process? A: More than 6 months from the date of reference to the marriage tribunal. Q: What do I get from the conciliatory process? A: If at the end of the conciliatory process, the tribunal is unable to resolve the issue between the parties or persuade parties to reconcile their marriage, a certificate shall be issued by the tribunal. The party who wishes to file single petition may then produce the certificate when filing the single petition in Court. Q: What happens to my children? A: You may ask for sole custody, care and control of your children. If the Court is of the view that it is in the best interest of the children that you have sole custody, care and control of the children, the Court may allow you to have sole custody with order of access to children be given to the other parent on terms stipulated by the Court, unless parties have consent to the arrangement on access. Q: Must I file for a divorce petition before I can claim for custody of my children? A: No, you may file an application for custody of your children, irrespective of whether or not you have filed your petition for divorce. Q: Can I claim for my children's maintenance? A: Yes, especially if you are not financially independent. The Court will usually order a maintenance sum based on the means and needs of the parties. Q: How long can I claim payment from the other party for maintenance of my children? A: The responsibility of parents to pay maintenance for children ends once the children attains the age of 18. Q: Can I ask for maintenance as well? A: Yes, especially if you not financially independent. The Court will usually order a maintenance sum based on the means and needs of the parties. The Court will take into consideration of the degree of responsibility of each party which contributes to the breakdown of the marriage. Your husband is only liable to pay the spousal maintenance until your re-marriage or if you live in ery with any other person. Q: What would happened to our matrimonial ets? A: In granting decree nisi, the Court will order division of the matrimonial ets both jointly and solely owned by the parties based on their respective direct and indirect contribution towards acquiring the ets. Q: When am I considered divorced? A: You shall be considered divorced once the decree nisi is made absolute, approximately 3 months from the date of the decree nisi. Foreign workers from Immigration Law Perspective Q: What are the main applicable legislations regulating employment relationship in respect of foreign nationals working in Malaysia? A: The main applicable legislations are, inter alia, as follows: Employment Act 1955 (Act 265) 雇用法1955 （Act265） Industrial Relations Act 1967 (Act 177) 产业关系法1967 （Act177） Workmen's Compensation Act 1952 (Act 273) 工人赔偿法1952 （Act273） Immigration Act 1959/63 (Act 155)移民法 1959/63 （Act155） Employment (Restriction) Act 1968 (Act 353); and 雇用（限制）法1968 （Act353） Employment (Restriction) (Employment Permit) Regulations 1969 雇用（限制）(就业许可证）条规1969 Q: What are the procedures or approval required for foreign nationals to work in Malaysia? A: There are two stages in an application for Employment Permit/P , namely: (1) application for a post and (2) application for employment p . Stage 1: Application for a Post The first stage is for a company to submit its application for expatriate posts. There are six authorized bodies or agencies appointed by the Malaysian Government to evaluate and approve the expatriate posts and they are:- 马来西亚产业发展部Malaysian Industrial Development Authority (MIDA) Expatriate post in the private sector in the fields of manufacturing company which is involved in expansion plans, manufacturing related services, hotel and tourism industry and research and development sector. 多媒体发展部Multimedia Development Corporation (MDeC) Expatriate post and skilled foreign worker in information technology based companies with Multimedia Super Corridor (MSC) status. 公共服务部门Public Service Department (PSD) Doctors and nurses working in government hospitals or clinics, lecturers and tutors employed in government institutions of Higher Education (IPTA), contract posts in public services and recruitment process jobs offered by the Public Service Commission (SPA) or government related agencies. 马来西亚中央银行Central Bank of Malaysia (BNM) Expatriate posts in the banking, finance and insurance sectors 证劵委员会Securities Commission (SC) Expatriate posts in securities and share market; and 外籍员工职务申请委员会Expatriate Committee (EC) Expatriate posts in private and public sectors other than those under MIDA, MDeC, PSD, BNM and SC's jurisdiction. Q: What happens if a company employs a non-citizen without valid employment p or permit? A: An employer may not employ a non-citizen unless the non-citizen is issued with a valid employment permit. Any person who fails to comply shall be guilty of an offence and upon conviction can be liable to a fine not exceeding RM5,000 or to imprisonment for a term not exceeding one year or both. (Section 5 and 18(1) of Employment (Restriction) Act 1968). Any person who employs one or more persons not in possession of a valid P shall be guilty of an offence and upon conviction be liable to a fine between RM10,000 to RM50,000 or imprisonment for a term not exceeding 12 months or to both. (Section 55B(1), Immigration Act 1959/63). Where an employer employs more than 5 of such employees, the employer shall on conviction be liable to imprisonment for a term not exceeding 6 months but not exceeding 5 years. The employer shall also be liable to whipping of not more than 6 s. (Section 55B(3), Immigration Act 1959/63). Where a body corporate commits the offence of employing illegal foreign workers, the member of the board of directors, manager, secretary or a person holding similar capacityat the time of the offence, shall be guilty of offence and be liable to the same punishment as the body corporate (Section 55(B)(5), Immigration Act 1959/63). Q: What does a company do upon obtaining approval from the above agencies? A: After you have received approval of the expatriate posts by the above approving agencies, a company proceeds to Stage 2 to submit an application to the Immigration Department for an employment p for the foreign national concerned. Once the Employment P has been issued and endorsed, the expatriate can be hired and employed.For more information relating to the application, you may refer to . Q: What is the different between employment p , temporary employment p and professional visit p ? A: Employment P . An employment p is issued to the expatriate to enable him to stay and work legally in Malaysia. Before the employment p can be issued, the employment of the foreign worker must be approved by the Expatriate Committee or the relevant regulatory agency. An employment p is valid for a period of not exceeding two years. Temporary Employment P . A temporary employment p is for unskilled or semI-skilled workers in the manufacturing, agriculture, construction and services fields. Professional Visit P . Issued to foreign nationals who remain employed by the company in the home country but are required by a Malaysian company to provide certain services. Q: Is an employer allowed to permit illegal immigrant to remain at their premises? A: No occupier (including an employer) shall permit any illegal immigrant to enter or remain at any premises. Upon conviction, the occupier shall be liable to a fine of not less than RM5,000 but not more than RM30,000 or imprisonment for a term not exceeding 12 months or to both for each illegal immigrant found at the premises (Section 55E(2), Immigration Act 1959/63). Where an employee has been convicted of the same offence previously, the employer shall be liable to a fine of not less than RM10,000 but not more than RM60,000 or to imprisonment of 2 years or to both for each illegal immigrant found at the premises. Where the offender is a body corporate, a member of the board of directors, a manager, a secretary or any person holding office of a manager or secretary when the offence was committed, shall be guilty of an offence and be liable to the same punishment as the body corporate (Section 55E(6), Immigration Act 1959/63). Q: If an employer is found to employ or harbor any person not in possession of valid p and the employer has to remove them, who bears for the cost for such removal? A: The employer who employs or harbors the illegal workers will have to bear all expenses for removing the illegal non-citizens. The employer shall also be required to reimburse the Government of all expenses incurred in detention and maintenance of that person pending deportation.

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