-
On December 18, 2003 we allowed the
appeals by the appellants. And upon agreement of the parties we
made no order as to costs. In giving our short oral judgment we
stated that we were unanimous in our decision. We expressed our
view that the Tribunal has the jurisdiction to entertain and to
adjudicate upon claims lodged with it notwithstanding that the
sale and purchase agreements were entered into before December
1, 2002. And accordingly the issue of retrospectivity of s 16AD
vis-à-vis an award given by the Tribunal should not
arise. We also stated that we would give our reasons later. We
do so now.
-
These appeals arose from the
decision of the court below granting the respondents, inter
alia, an order of certiorari to quash the awards
handed down by the Tribunal in respect of several claims lodged
by the claimants/homebuyers, a declaration that the said awards
given were invalid, ultra vires, null and void and of no
consequence, that the Tribunal had no jurisdiction to hear and
determine the claims lodged by the claimants/homebuyers thereof
and an order prohibiting the Tribunal from hearing such claims.
-
Since the issue of jurisdiction of
the Tribunal in relation to sale and purchase agreements entered
into before December 1, 2002 was common to all the appeals it
was therefore agreed that we should hear them together.
-
We emphasize here that the issue of
jurisdiction of the Tribunal is being questioned only in
relation to sale and purchase agreements entered into by the
claimants/homebuyers before December 1, 2002, a date crucial,
since that was when the Tribunal began to function vide gazette
notification PU(B) 353/2002 (the appointed date).
-
Now, it was not in dispute that the
claimants/homebuyers lodged their claims with the Tribunal for
liquidated damages in connection with the late delivery of homes
purchased by them from the respective respondents, being the
licensed housing developers.
-
As background, the Tribunal came
into existence with the passing of the Housing Developers
(Control and Licensing) (Amendment) Act 2002 (the Amending Act).
The principal statute is the Housing Developers (Control and
Licensing) Act 1966 (the Principal Act). And for clarity the
sections referred to in this judgment are sections of the
Principal Act as amended.
-
Prior to the orders rendered by the
court below the Tribunal heard claims which were brought before
it irrespective of the dates of the sale and purchase
agreements. However the respondents herein held a view
otherwise. Several applications were therefore filed by way of
notice of motion for judicial review.
-
With the agreement of all parties
the learned judge in the court below heard one application with
binding effect on the others. And on September 4, 2003 the
learned judge rendered judgment wherein he granted the relief
sought for by the respondents with the net effect that the
Tribunal was for all intents and purposes rendered incapable to
hear claims based on sale and purchase agreements entered into
before the appointed date.[a]
-
The gist of the decision of the
learned judge is that in the absence of any express provision to
the contrary, the Amending Act has no retrospective effect on
sale and purchase agreements entered into before the appointed
date. He held that to do so would be an infringement of Article
7 of the Federal Constitution in view of the provision whereby
penalty could be imposed for any failure to comply with an award
handed down by the Tribunal. Indeed the learned judge considered
that any failure to comply with an award granted by the Tribunal
would merely be an extension of the breach upon which the award
was given. The learned judge was also of the view that to allow
retrospective effect of the jurisdiction of the Tribunal would
result in the substantive rights of the respondents being
affected to their prejudice.
-
Before us the learned attorney
general argued, inter alia, that the Tribunal has the
jurisdiction to hear and determine claims based on a sale and
purchase agreement entered into prior to the appointed date. He
referred to s 16N(2) thereof. And he contended that s 16R admits
the possibility of a retrospective application of the said
section. He went on to point out that assent to the Amending Act
was given on January 23, 2002 followed by the publication on
January 31, 2002 but it only came into force on December 1, 2002
together with the Regulations providing for the procedure to be
observed by the Tribunal. That according to him indicates the
intention of applying s 16N(2) retrospectively.
-
The reference by the learned judge
to s 32(2) of the Amending Act which extended the application of
the new s 22C in the Principal Act as being a 20 specific
indication of retrospective intention as opposed to the absence
of similar provision in s l6N(2) thereof was noted by the
learned attorney general as erroneous in view of the limited
purpose of that section.
-
For the respondents it was submitted
that s 16N(2) has no application to the notion of
retrospectivity. That section simply serves to limit the
jurisdiction of the Tribunal where it has jurisdiction by virtue
of s 16M. And it was further submitted that if it was the
intention of Parliament to allow retrospective effect, it would
have done so by inserting a similar provision to that of the new
s 22C of the Principal Act.
-
Learned counsel for the respondents
gave the reasons why this court must not construe the
jurisdiction of the Tribunal as having retrospective effect.
-
Firstly it was contended that
to do so would effectively be allowing a criminal provision
enacted into the Principal Act vide the Amending Act to have
retrospective effect in the absence of any specific enabling
provision. Learned counsel of course was referring to the
provision whereby there would be a penalty imposed for
failing to comply with an award granted by the Tribunal.
-
Secondly the fact that a
criminal provision was incorporated should indicate that
there was no intention to legislate with retrospective
effect bearing in mind the strong presumption against
statutes with criminal consequence to operate
retrospectively.
-
The diametrically opposed
contentions of the parties before us demand close scrutiny of
the relevant provisions brought about by the Amending Act. And
having done so we agree that whilst there is no provision
expressly specifying the jurisdiction of the Tribunal in respect
of sale and purchase agreements entered into before the
appointed date, we do not think such fact should be taken as
affirming the argument of the respondents. To do so would be
contrary to a settled principle of law that statutes must be
read as a whole. (See: Kesultanan Pahang v Sathask Realty Sdn
Bhd [1998] 2 AMR 1361; [1998] 2 MLJ 513). And literal
interpretation of a statute is not applicable in all cases.
There are circumstances where the nature and purpose of a
particular legislation must be considered when construing its
various provisions so as not to defeat the intention of
Parliament. (See: Akberdin Abdul Kader v Majlis Peguam
Malaysia [2003] 4 AMR 3813; [2003] 1 MLJ 1; SEA Housing
Coporation Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31).
-
In the instant case we are of the
view that the Principal Act as amended by the Amending Act is a
piece of social legislation and hence its provisions should be
given liberal and purposive interpretation. In the case of
Kesatuan Kebangsaan Wartawan Malaysia v Syarikat Pemandangan
Sinar Sdn Bhd [2001] 4 AMR 3813; [2001] 3 MLJ 705 the
Federal Court speaking through His Lordship Steve Shim CJ (Sabah
and Sarawak) on the Industrial Relations Act 1967 said this at
pp 3821-3822 (AMR); p 710 (MLJ):
Quite clearly, the IRA is a
piece of social legislation whose primary aim is to
promote social justice, industrial peace and harmony
in the country. As such, the approach to
interpretation must be liberal in order to achieve
the object aimed at by Parliament. This had been
described by Lord Diplock as the "purposive
approach", an approach followed by Lord Denning in
Nathan v Bamet London Borough Council [1978]
1 WLR 220, who reiterated that in all cases
involving the interpretation of statutes, we should
adopt a construction that would promote the general
legislative purpose underlying the provision. We
accept that to be the correct approach.
-
A similar view was also expressed by
the Federal Court in the case of Hoh Kiang Ngan v Mahkamah
Perusahaan Malaysia [1996] 3 AMR 3693; [1995] 3 MLJ 369
where it was said at pp 3722-3723 (AMR); p 387 (MLJ):
Now, it is well settled that
the Act is a piece of beneficent social legislation
by which Parliament intends the prevention and
speedy resolution of disputes between employers and
their workmen. In accordance with well settled
canons of construction, such legislation must
receive a liberal and not a restricted or rigid
interpretation. If authority is required for this
proposition, it is to be found in the decision of
the Court of Appeal in Syarikat Kenderaan Melayu
Kelaman Bhd v Transport Workers' Union [1996] 2
AMR 1601; [1995] 2 MLJ 317. The three interconnected
definitions which were cited by Salleh Abas LP in
his judgment in Inchcape as well as s 20
(under which the instant respondent's case was
referred to the Industrial Court) appear in a
statute requiring liberal interpretation and for
that reason should themselves be liberally
interpreted.
[per Gopal Sri Ram JCA]
-
Applying therefore the liberal and
purposive approach to the statutory provisions that deal with
the jurisdiction of the Tribunal we find that the argument
advanced for the respondents is premised on at least two
assumptions.
-
Firstly, that the date in a
sale and purchase agreement is material in determining the
jurisdiction of the Tribunal.
-
Secondly, any award given for a
breach of a sale and purchase agreement entered into prior
to the appointed date, particularly where the breach was
before that date, would tantamount to allowing criminal law
to operate retrospectively since it is now punishable, being
an offence for any failure to comply with or satisfy such
award.
This argument of course relates
to the legal principle that criminal law cannot be made to
operate retrospectively unless specifically stipulated.
(See: Dalip Bhagwan Singh v PP [1997] 4 AMR 4029;
[1998] 1 MLJ 1).
-
With respect, we find the first
assumption to be without any basis. There is nothing in the
provisions establishing the Tribunal or related thereto which
can be said to support it. In our view while s 16M sets out the
general jurisdiction of the Tribunal, it is s 16N and in
particular subsection 16N(2) thereof that provides the perimeter
of the jurisdiction of the Tribunal. Section 16N(2) reads:
16N.Limitation of jurisdiction
(1)
Except as expressly ....
(2)
The jurisdiction of the
Tribunal shall be limited to a claim
that is based on a cause of action
arising from the sale and purchase
agreement entered into between the
homebuyer and the licensed housing
developer which is brought by a
homebuyer not later than twelve months
from the date of issuance of the
certificate of fitness for occupation
for the housing accommodation or the
expiry date of the defects liability
period as set out in the sale and
purchase agreement.
-
Subsection 16N(2) does not stipulate
a cut off point by reference to date of agreement vis-à-vis
jurisdiction. All that is required of the Tribunal in assuming
jurisdiction to hear a claim presented before it is to verify
whether it is within the ambit of subsection 16N(2), that is to
say:
-
whether the claim is based "on
a cause of action arising from the sale and purchase
agreement entered into between the homebuyer and the
licensed housing developer"; and
-
whether the claim is "brought
by a homebuyer not later than twelve months from the date of
issuance of the certificate of fitness for occupation for
the housing accommodation or the expiry date of the defects
liability period as set out in the sale and purchase
agreement."
-
We do not think there should be any
additional or prerequisite term to be read into the provision.
To do so would tantamount to adding what is not in the statute.
And that should not be done since judges are not legislators.
That was echoed in NKM Holdings Sdn Bhd v Pan Malaysia Wood
Bhd [1987] 2 MLJ 39 with these words:
It must always be borne in mind that we
are judges, not legislators. The constitutional
function of the courts is not only to interpret but
also to enforce the laws enacted by Parliament. In
enforcing the law we must be the first to obey it.
It should be noted that the power of a court to
proceed in a particular course of administering
justice, was one of substance and not merely of
form. The duty of the court, and its only duty, is
to expound the language of the Act in accordance
with the settled rules of construction. The court
has nothing to do with the policy of any Act which
it may be called upon to interpret.
[per George Seah SCJ at
p 39]
-
In fact the need for a sale and
purchase agreement as a condition-precedent in filing a claim
has also been waived by subsection 16N(3) thereof which states
that
[N]otwithstanding subsection
(2) no claim shall be affected or defeated on the
ground that no sale and purchase agreement has been
entered into between the home buyer and the licensed
housing developer at the time when the cause of
action accrues if there exists a previous dealing
between the homebuyer and the licensed housing
developer in respect of the acquisition of the
housing accommodation.
-
To limit therefore the jurisdiction
of the Tribunal to claims based on sale and purchase agreements
entered into after the appointed date would tantamount to
restricting the jurisdiction of the Tribunal which Parliament
never intended to do so. It is absurd in our view to say that
Parliament proceeded to legislate for the establishment of the
Tribunal well aware that it would only begin to serve its
purpose a few years later since it would be inconceivable for
claims to arise on breaches of sale and purchase agreements
entered into as recent as the appointed date. Meanwhile the
claims of homebuyers based on breaches of sale and purchase
agreements entered into prior to the appointed date would
continue to languish under the present set up. Surely that must
have been the very mischief which Parliament intended to address
when it legislated for the establishment of the Tribunal. As
stated earlier, being a piece of social legislation a liberal
and purposive approach should be adopted when construing the
legislative provisions governing the threshold jurisdiction of
the Tribunal.
-
In respect of the second assumption,
such approach came about in view of s 16AD. It reads:
16AD.Criminal penalty for
failure to comply
(1)
Any person who fails to
comply with an award made by the
Tribunal within the period specified
therein commits an offence and shall on
conviction be liable to a fine not
exceeding five thousand ringgit or to
imprisonment for a term not exceeding
two years or to both.
(2)
In the case of a
continuing offence, the offender shall,
in addition to the penalties under
subsection (1), be liable to a fine not
exceeding one thousand ringgit for each
day or part of a day during which the
offence continues after conviction.
-
However, that section should be read
in its proper perspective and should be given a purposive
interpretation as well. At any rate nothing stipulated therein
could be understood to mean that a breach of a sale and purchase
agreement between a homebuyer and a licensed housing developer
is a crime per se. A breach only gives a home buyer the right to
claim against a licensed housing developer. Ana prior to the
establishment of the tribunal such claim could only be filed in
the civil court. In fact a claim that is not within the ambit of
ss 16M and 16N remains outside the jurisdiction of the Tribunal
though s 160 is an exception.
-
Accordingly in our opinion s 16AD
only comes into play when there is a failure on the part or a
licensed. Housing developer to comply with an award given by the
Tribunal. In other words the criminal aspect of the provision
only arises when there is a failure to abide by an award of the
Tribunal and not due to a breach of a sale and purchase
agreement upon which a claim is made. It is in fact equivalent
to an execution proceeding as generally understood in the civil
court. Thus we are not persuaded by the argument that section
16AD has made an award handed down by the Tribunal synonymous to
a breach of a sale and purchase agreement. A breach is a cause
giving rise to a claim while an award is a relief.
-
Put in another way, s 16AD does not
penalize a licensed housing developer for a breach
simpliciter of a sale and purchase agreement. The penalty
comes into play only when there is a failure to comply with or
satisfy an award handed down by the Tribunal after adjudicating
a claim based on a breach of a sale and purchase agreement
irrespective of its date. That in our view is a fair, liberal
and purposive interpretation of the section. And since the
Tribunal only began to function from the appointed date the
question of an award handed down before that date and the
application of s 16AD for failure to comply does not arise.
-
We are conscious of the
counter-argument that without a breach in the first place there
is no question of an award being given by the Tribunal and
without an award there is no issue of penalty arising. And if a
breach occurred before the appointed date that would effectively
be criminalizing an act retrospectively.
-
With respect, a distinction should
be drawn between a breach of the sale and purchase agreement and
an award rendered arising from such breach. As we have stated
earlier on it is not the breach of the sale and purchase
agreement that has been criminalized. Rather it is the failure
to comply with or satisfy any award given by the Tribunal in
connection with any claim made pursuant to such breach. At any
rate s 16AD does not empower the Tribunal to impose any penalty.
It only provides for a defaulter to be subject to prosecution
which invariably is the task of another authority in a separate
criminal proceeding. And on being prosecuted a defaulter is at
liberty to raise in defence the inapplicability of the section
to him. Such approach was successful in the case of
Energoprojek (M) Holdings v PP [1998] 5 MLJ 401.
Accordingly, we do not think s 16AD is intended to take away any
substantive right of any person. Neither is it meant to affect
or limit the jurisdiction of the Tribunal in any manner
howsoever.
-
The reference to s 22C thereof by
way of comparison to indicate the intention of Parliament is
irrelevant in our opinion. That provision is only an enabling
section in relation to another matter and is not related to the
issue of jurisdiction of the Tribunal. Section 22C provides:
22C.Right to initiate and
maintain actions
(1)
Notwithstanding anything
contained in any written law or any rule
of law, a homebuyer as defined in
section 16A shall be entitled on his own
volition and in his own name to
initiate, commence, institute and
maintain in any court or tribunal any
action, suit or proceeding against a
housing developer or any other person in
respect of any matter arising out of the
sale and purchase agreement entered into
between the purchaser and that housing
developer unless a contrary intention is
expressed in any agreement, assignment
or charge between the homebuyer and his
financier in which case the prior
written consent of his financier must
first be obtained before he exercises
any of his rights under this section.
(2)
Every agreement,
assignment or charge lawfully entered
into between a purchaser and his
financier before the appointed date
shall be subject to, and the parties
thereto shall be entitled to the
benefits of, the new section 22C of the
principal Act 1966 as inserted into the
principal Act by subsection (1).
-
It was also the contention of
learned counsel for the respondents that in view of the penalty
attached with the establishment of the Tribunal to allow it
therefore to hear a claim based on a sale and purchase agreement
entered into before the appointed date would affect and
prejudice the substantive rights of the respondents.
-
In our view such argument is focused
on the presence of the penalty for default in complying with an
award handed down by the Tribunal. And for the reasons we have
given hereinabove, in particular, on the penalty vis-à-vis
the award issue, we do not think it has any merit.
-
It is to be noted that the
establishment of the Tribunal is in effect a creation of another
forum intended for speedy disposal at a minimum cost of
prescribed claim up to the limit of RM25.000 by a homebuyer
against a licensed housing developer for breach of a sale and
purchase agreement entered into by the parties. There is
therefore no question of the rights of anyone being eroded or
removed as was envisaged in The Colonial Sugar Refining
Company Ltd v lrving [1905] AC 369, PC. (See also: Lim
Phin Khian v Kho Su Ming [1996] 1 AMR 281; [1996] 1 MLJ 1.)
-
And although it may be argued that
the imposition of penalty has a prejudicial effect, such a
preposition may be true if it is the breach of a sale and
purchase agreement that has been criminalized. But here it is
not the case.
-
As regards the other points raised
in the course of the argument we have considered them but in
view of our conclusion herein there is no necessity for us to
expressly deal with each one of them. It would not alter our
conclusion in any event.
-
Accordingly for the foregoing
reasons we allowed the appeals.
-
My learned brothers have read this
judgment in draft and agree with its contents.
Akberdin Abdul Kader v Majlis Peguam
Malaysia [2003] 1 AMR 5; [2003] 1 MLJ 1, CA; Colonial Sugar Refining
Company Ltd, The v lrving [1905] AC 369, PC; Dalip Bhagwan Singh v
PP [1997] 4 AMR 4029; [1998] 1 MLJ 1, FC; Energoprojek (M) Holdings
v PP [1998] 5 MLJ 401, HC; Hoh Kiang Ngan v Mahkamah Perusahaan
Malaysia [1996] 3 AMR 3639; [1995] 3 MLJ 369, FC; Kesatuan
Kebangsaan Wartawan Malaysia v Syarikat Pemandangan Sinar Sdn Bhd
[2001] 4 AMR 3813; [2001] 3 MLJ 705, FC; Kesultanan Pahang v Sathask
Realty Sdn Bhd [1998] 2 AMR 1561; [1998] 2 MLJ 513, FC; Lim Phin
Khian v Kho Su Ming [1996] I AMR 281; [1996] 1 MLJ 1, SC; NKM
Holding Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39, SC; SEA
Housing Coporation Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31, FC
Housing Developers (Control and
Licensing) Act 1966: s.16M, s.16N, s.16O, s.16R, 1s.6AD, s.22C
Abdul Gani Patail, Azhar Mohamad and Umi
Kalthum Abd Majid (AG's Chambers) for appellants
