AGC: Compounding Serba Dinamik is adequate form of punishment

The ongoing winding up process by creditors of Serba Dinamik Holdings Bhd has to take into consideration the impact on employees and shareholders of the company, according to the Attorney General’s Chambers (AGC).

In a statement that touched on private sector civil action, the AGC said compounding the offences was an adequate form of punishment for the alleged offences committed.

“This would then allow Serba Dinamik to focus on rectifying errors and effecting immediate compliance with regulations of Bursa Malaysia and the Securities Commission (SC), as Serba Dinamik had clearly done so in the past without fault,” it said.

“Serba Dinamik is facing winding up petitions from creditors, which jeopardise the livelihood of its employees and the interest of shareholders and other creditors.

“In these circumstances, the AGC finds that compounding the offences is an adequate form of punishment for the alleged offences.”

The AGC said that in light of the evidence in support of the charges and to avoid a long and protracted trial, it was of the view that public interest would be better served by compounding the offences allegedly committed by Serba Dinamik and its executives.

“By compounding the offences, the need for punitive action against Serba Dinamik is immediately achieved without going through a lengthy trial.

“Thereafter, Serba Dinamik can redirect resources and time to coordinate with the authorities to comply with the requirements of the law,” it said in the statement.

The AGC was of the view that the criminal proceedings against Serba Dinamik ought not to be pursued due to the economic consequences of doing so. The impact of the charges on Serba Dinamik is disproportionate with the severity of the alleged offences committed.

In the statement, the AGC said it was mindful of the standard of proof required of the prosecution to prove the charges based on the evidence available and was strongly of the view that compounding the offences allegedly committed by Serba Dinamik and its executives was the most appropriate action to take under the circumstances.

“Accordingly, on April 7, 2022, the AGC gave its consent to compound the said offences to the SC. The SC, pursuant to section 373 of (Capital Markets and Services Act 2007 [Act 671]) Act 671, accordingly compounded these offences.

“In this regard, the SC had decided to impose a maximum compound on Serba Dinamik and its executives, respectively,” it said.

On the April 13, 2022, the AGC said the notice of compound was issued to Serba Dinamik and its four executives respectively and the total amount of compound to be paid is Rm16mil, which they had paid on May 9, 2022.

In explaining the chronology in coming to the decision to compound the directors of Serba Dinamik, the AGC said that in December 2021, the SC presented its findings in relation to an investigation into the alleged contraventions of the provisions of the Capital Markets and Services Act 2007 [Act 671] by Serba Dinamik and its four executives to the AGC.

“The SC recommended that Serba Dinamik and the said four executives be prosecuted for the alleged contraventions.

“The AGC noted that the evidence against Serba Dinamik and its four executives was circumstantial in nature and required the application of the deeming provisions of section 367(1) of Act 671 which deem these executives to have committed the offences based on their capacity as directors or officers of the company.

“The SC convinced the AGC that prosecution was a necessary course of action for this case. Thereafter, the AGC gave its consent to prosecute to the SC. Serba Dinamik and its executives was consequently charged in court on Dec 28, 2021,” it said.

The AGC said that on the March 21, 2022, it received a representation letter dated March 17, 2022 from Serba Dinamik requesting that the AGC reconsider the charges against it and its four executives.

“Serba Dinamik further proposed that the offences be compounded. The said letter from Serba Dinamik was forwarded to the SC for its immediate attention.

“Thereafter, the AGC discussed the said representation letter with investigating officers from the SC. The matter was also discussed by the Attorney General with the SC’S chairman,” said the AGC.

“Subsequently, upon the request from the AGC, the SC submitted its investigation paper to the AGC.

“After perusing the said investigation paper and considering the said representation letter by Serba Dinamik, the AGC agreed with the proposal to compound the offences alleged to have been committed by Serba Dinamik and its executives, taking into account, among others, the circumstantial nature of available evidence against Serba Dinamik and the reliance on section 367(1) of Act 671.

“Furthermore, Serba Dinamik and the said executives were willing to accept the maximum amount of compound imposable by the SC,” said the AGC.