Legal Updates for February 2023

New General Code of Practice of Personal Data Protection Issued under the Personal Data Protection Act 2010

Under the Personal Data Protection Act 2010 ("PDPA"), there are 13 specified classes of data users ("Specified Data Users") that are required to draw up binding Codes of Practice to set out data protection requirements that are tailored to their particular industries (e.g., Banking, Insurance, Education etc). However, there still remain a number of Specified Data Users that have yet to do so.

As such, the Personal Data Protection Commissioner ("Commissioner") recently issued the General Code of Practice of Personal Data Protection ("General COP"), which came into force on 15 December 2022, to apply to the classes of Specified Data Users that have yet to establish Data User Forums and to register their respective Codes of Practice with the Commissioner.

While the General COP is not binding upon other data users, it is recommended that other data users also refer to the individual provisions in the General COP, as it is reflective of the expectations of the Commissioner in relation to the minimum measures required to be implemented by data users pursuant to the PDPA.

This Update therefore seeks to provide a brief overview of the General COP and highlight key provisions set out in the General COP which data users should be aware of.

Personal Data Protection Act 2010 under the New Government: Updates to the Proposed Amendments in 2023

Since 2018, continuous efforts have been made by the Malaysian Government to review and update the Personal Data Protection Act 2010 (“PDPA”) in order to bring the PDPA in line with global data protection standards, and also to address issues arising from the emerging ways of using and processing personal data. However, the review process and the PDPA amendment bill have been delayed time and again, on account of the COVID-19 pandemic as well as multiple changes in the Government. 

With the installation of a new Government, the new Minister of Communications and Digital, Fahmi Fadzil, is now tasked with overseeing the proposed amendments to the PDPA. Therefore, this Update seeks to provide a quick insight into the latest information available on the status of the proposed amendments to the PDPA under the new Government.


Introduction of Sales Tax on Low Value Goods on Online Marketplaces

Changes are being made to the Sales Tax Act 2018 in phases to impose sales tax on low value goods. The changes are effected pursuant to the Sales Tax (Amendment) Act 2022 and the relevant regulations and orders issued thereunder (with provisions effective from 1 January 2023 and 1 April 2023 respectively). This is in line with the announcement made by the Ministry of Finance in Budget 2022 to ensure a level playing field and fair treatment between taxable goods manufactured in Malaysia and imported goods, as local manufacturers are already being charged a 5% or 10% sales tax.

Low value goods are goods from outside Malaysia which have a sale value of not more than RM500 and are brought into Malaysia by land, sea or air. Pursuant to the Guide on Sales Tax on Low Value Goods issued by the Royal Malaysian Customs Department, the low value goods tax is mainly intended to implement sales tax on low value goods sold through online marketplaces. Therefore, these changes will heavily impact e-commerce businesses where low value goods are sold through an online marketplace and imported into Malaysia in the prescribed manner.

In this Update we provide a brief summary of the low value goods tax and highlight the relevance for e-commerce businesses. 

Winding Up Court Directions Given to the Liquidator Affecting Substantive Rights of Parties are Now Appealable

The role of the liquidator is to realise the assets of the company and from the sale proceeds, pay off creditors of the company.  If a difficulty arises in the course of his administration of the winding up, the liquidator may apply to the winding up court for directions.

A decade ago, the Malaysian Federal Court (being the apex Court) held in Ooi Woon Chee & Anor v. Dato’ See Teow Chuan & Ors [2012] 2 MLJ 713 that such directions given by the winding up court to the liquidator were non-appealable on the ground that those directions were in the nature of advice only and were accordingly not a judgment or order.

Recently, the same issue (on the appealability of such directions) came up before the Federal Court in Tan Kim Chuan v. Tan Kim Tian & Ors and another appeal [2022] 6 MLJ 888, where the Federal Court clarified and qualified its abovesaid earlier decision made a decade ago, and held that such directions given by the winding up court to the liquidator are appealable only if those directions affect the substantive rights of the parties involved in the liquidation.

In this Update, we summarise the legal issues in this decision of the Federal Court and discuss its impact.