-
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.
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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]
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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.
