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HOUSING DEVELOPERS (CONTROL AND LICENSING) (AMENDMENT) ACT
2002
ACT A1142
In force from
1 December 2002 [PU(B) 353/2002]
Date of Royal Assent: 23 January 2002
Date of publication in the Gazette 31 January 2002
An Act to amend the Housing Developers (Control and Licensing)
Act 1966.
ENACTED by the Parliament
of Malaysia as follows:
1. Short title and commencement.
(1) This Act may be cited as the Housing Developers
(Control and Licensing) (Amendment) Act 2002.
(2) This Act comes into operation on a date to be appointed
by the Minister by notification in the Gazette.
2. Interpretation.
For the purpose of this Act, "appointed date" means the
date appointed by the Minister under subsection 1(2).
3. New Part I.
The Housing Developers (Control and Licensing) Act 1966
[Act 118], which is referred to as the "principal Act" in this Act,
is amended by inserting before section 1 the following heading:
"PART I
PRELIMINARY".
4. Amendment of section 1.
Subsection 1(1) of the principal Act is amended by substituting
for the word "Developers" the word "Development".
5. Reference to the principal Act.
Where, on and after the appointed date, a reference is
made in any written law to the "Housing Developers (Control and Licensing)
Act 1966", such reference shall be construed as a reference to the "Housing
Development (Control and Licensing) Act 1966".
6. Amendment of section 2.
Subsection 2(1) of the principal Act is deleted.
7. Amendment of section 3.
Section 3 of the principal Act is amended-
(a) in the definition of
"bank", by substituting for the words "Banking Act 1973 [Act 102]"
the words "Banking and Financial Institutions Act 1989
[Act 372]";
(b) by inserting after
the definition of "body of persons" the following definition:
'"certificate of fitness for occupation" means the
certificate of fitness for occupation given or granted under the Street,
Drainage and Building Act 1974 [Act 133] and any by-laws made
under that Act;';
(c) by inserting after
the definition of "Controller" the following definition:
'"Deputy Controller" means the Deputy Controller of
Housing appointed under section 4;';
(d) in the definition of
"finance company", by substituting for the words "Finance Companies Act
1969 [Act 6]" the words "Banking and Financial Institutions Act
1989";
(e) in the definition of
"housing accommodation", by inserting after the words "for business premises"
the words "but does not include an accommodation erected on any land designated
for or approved for commercial development";
(f) in the definition of
"licensed housing developer", by inserting after the words "housing development"
the words "and includes the holder of any power of attorney of such housing
developer duly created under the Powers of Attorney Act 1949
[Act 424]";
(g) by inserting after
the definition of "licensed housing developer" the following definition:
'"local authority" includes any person or body of
persons appointed or authorized under any written law to exercise and
perform the powers and duties which are conferred and imposed on a local
authority under any written law;';
(h) by substituting for
the definition of "prescribed" the following definition:
'"prescribed" means prescribed by regulations made
under this Act, and where no mode is mentioned means prescribed from
time to time by order published in the Gazette;';
(i) by substituting for
the definition of "purchaser" the following definition:
'"purchaser" means any person who purchases housing
accommodation or who has any dealing with a licensed housing developer
in respect of the acquisition of housing accommodation;'; and
(j) by inserting after
the definition of "purchaser" the following definitions:
'"stakeholder" means any solicitor holding moneys
as stakeholder for payment to a housing developer pursuant to sale and
purchase agreements in respect of a housing development which the housing
developer is engaged in, carries on or undertakes or causes to be undertaken;
"Tribunal" means the Tribunal for Homebuyer Claims
established under section 16B.'.
8. Amendment of section 4.
The principal Act is amended by substituting for section
4 the following section:
"4. Appointment of Controller, Deputy Controllers,
Inspectors and other officers and servants.
(1) For the purpose of this Act, the Minister may appoint
a Controller of Housing and such number of Deputy Controllers of Housing,
Inspectors of Housing and other officers and servants as the Minister
may deem fit from amongst members of the public service.
(2) The Controller and Deputy Controllers shall have
and may exercise any of the powers conferred on an Inspector by or under
this Act.
(3) The Controller may, in writing, delegate all or
any of his powers or functions under this Act, except his power of delegation,
to any Deputy Controller, Inspector, officer or servant appointed under
subsection (1).
(4) Without prejudice to subsection (2), the Controller
may, in writing, delegate any of his powers and functions under this Act
in respect of the investigation of offences under this Act and the enforcement
of this Act to any public officer or officer of a local authority.
(5) Any delegation under subsection (3) or (4) may be
revoked at any time by the Controller and does not prohibit the Controller
from himself exercising the powers or performing the functions so delegated.".
9. New Part II.
The principal Act is amended by inserting before section
5 the following heading:
"PART II
LICENSING OF HOUSING DEVELOPERS".
10. Amendment of section 5.
Section 5 of the principal Act is amended-
(a) in subsection (4) by
deleting the words ", subject to section 6,";
(b) by inserting after
subsection (4) the following subsections:
"(4A) No application for a licence under this section
shall be considered unless the prescribed fees have been paid to the
Controller.
(4B) There shall be charged and paid to the Controller
on the grant of a licence and at such intervals after such grant during
the period of validity of the licence such fees as may be prescribed.";
and
(c) in subsection (5),
by substituting for the word "aforesaid" the words "imposed under subsection
(4)".
11. Amendment of section 6.
Section 6 of the principal Act is amended-
(a) in subsection (1)-
(i) in paragraph (a), by inserting after the
words "two hundred and fifty thousand ringgit" the words "and makes
a deposit with the Controller of not less than two hundred thousand
ringgit in cash or in such other form as the Minister may determine";
(ii) in paragraph (b)-
(A) by substituting for the word "one" the word
"two";
(B) by deleting the word "and" appearing at the
end of the paragraph; and
(iii) in paragraph (c), by deleting the word
"and" appearing at the end of the paragraph;
(iv) in paragraph (d)-
(A) by inserting after the word "secretary" the
words "of the applicant";
(B) by inserting after the word "treasurer" the
words "of the applicant"; and
(C) by substituting for the full stop appearing
at the end of the paragraph a semicolon; and
(v) by inserting after paragraph (d) the following
paragraphs:
"(e) unless, at the
time the application is made, the applicant or any member or partner
of the applicant, if the applicant is a body of persons or firm, or
a director, manager or secretary of the applicant, if the applicant
is a company, has not, due to a conviction for an offence under this
Act, been sentenced to a fine exceeding ten thousand ringgit or to
imprisonment (other than imprisonment in default of a fine not exceeding
ten thousand ringgit);
(f) unless, at the
time the application is made, a person who had been a director of
or had been directly concerned in the management of the business of
a licensed housing developer which has been wound up by a court is
not a director or is not directly concerned in the management of the
business of the applicant; and
(g) if the registration
of the applicant's architect or engineer has been cancelled and has
not been reinstated under the Architects Act 1967 [Act 117]
or the Registration of Engineers Act 1967 [Act 138] at the
time the application is made."; and
(b) by inserting after
subsection (1) the following subsection:
"(1A) For the purposes of paragraphs (1)(d),
(e) and (f), if the applicant is a company, the expression
"applicant" shall include the holding company of the applicant, or a
subsidiary of the applicant or a subsidiary of the holding company of
the applicant.".
12. New section 6A.
The principal Act is amended by inserting after section
6 the following section:
"6A. Controller to keep deposit.
Subject to any direction of the Minister, the Controller
shall keep the deposit made under paragraphs 6(1)(a) and (b)
until the expiry of the defect liability period of the housing development.
6B. Controller may forfeit deposit.
If any licensed holding developer-
(a) is carrying on his
business, in the opinion of the Controller, in a manner detrimental
to the interest of the purchasers or to any member of the public;
(b) has insufficient
assets to cover his liabilities;
(c) is contravening any
of the provisions of this Act; or
(d) has ceased to carry
on housing development in West Malaysia,
the Controller may, after having given the licensed
developer an opportunity to submit reasons within a specified time on
why the deposit under paragraph 6(l)(a) or (b) should not
be forfeited, forfeit the whole or a part of the deposit.".
13. New Part III.
The principal Act is amended by inserting before section
7 the following heading:
"PART III
DUTIES OF A LICENSED HOUSING DEVELOPER".
14. Amendment of section 7.
Section 7 of the principal Act is amended-
(a) in paragraph (b),
by inserting after the words "a copy of" the words "his licence, advertisement
and sale permit and a copy of";
(b) in paragraph (e),
by substituting for the word "three" the word "six";
(c) in paragraph (f)
by substituting for the words "in the prescribed form; and" the words
", in such form and containing such information as the Controller may
from time to time determine, on the progress of the housing development
which the housing developer is engaged in, carries on or undertakes or
causes to be undertaken;";
(d) in paragraph (g)-
(i) by inserting after the words "to the purchasers"
the words "at any stage of the housing development before the issuance
of the certificate of fitness for occupation"; and
(ii) by substituting for the full stop appearing at
the end of the paragraph a semicolon; and
(e) by inserting after
paragraph (g) the following paragraphs:
"(h) inform the Controller
of the handing over of vacant possession of the housing accommodation
in the housing development to the purchasers and submit a certified
true copy of his architect's certificate certifying that the construction
of the housing accommodation has been duly completed and that water
and electricity supplies are ready for connection to the housing accommodation;
(i) inform the Controller
if the appropriate authority has refused to accept the submission of
any document relating to the issuance of certificates of fitness for
occupation and submit the refusal letter from the appropriate authority
to the Controller;
(j) ensure that the development
of the housing accommodation has been carried out in accordance with
any requirements prescribed under any law regulating buildings and has
exercised all such diligence as may be required for the issuance of
certificates of fitness for occupation and for the issuance and transfer
of the titles to the housing accommodation to the purchasers; and
(k) inform the Controller
of the progress in the issuance of separate or strata titles for the
housing accommodation and the transfer of such titles to the purchasers.".
15. Amendment of section 7A.
Section 7A of the principal Act is amended-
(a) in subsection
(5)-
(i) by substituting for the words "paragraph 6(b)"
the words "paragraph (6)(b)"; and
(ii) by inserting after the words "Housing Development
Account" the words "and all moneys held by the stakeholder";
(b) in subsection (6),
by inserting after the words "Housing Development Account" wherever appearing
the words "and moneys held by the stakeholder";
(c) in subsection (7),
by inserting after the words "Housing Development Account" the words "and
moneys held by the stakeholder";
(d) in subsection (8),
by substituting for the words "section 36 of the Banking Act 1973" the
words "the provisions of the Banking and Financial Institutions Act 1989
and the Islamic Banking Act 1983";
(e) in subsection (9),
by inserting after the words "before the completion of the housing development"
the words "and the issuance of certificates of fitness for occupation";
and
(f) in subsection (10)-
(i) by substituting for the word "ten" the word "fifty";
and
(ii) by substituting for the word "one" the word "five".
16. New section 7B.
The principal Act is amended by inserting after section
7A the following section:
"7B. Licensed housing developer for the purpose
of sections 8, 8A, 11 and 12.
For the purpose of sections 8, 8A, 11 and 12, "licensed
housing developer" includes any housing developer whose licence has expired.".
17. Amendment of section 8.
Subsection 8(1) of the principal Act is amended by substituting
for the words "dispose of or reconstruct his business" the words "transfer,
assign, dispose of or reconstruct his business or management".
18. New section 8A.
The principal Act is amended by inserting after section
8 the following section:
"8A. Statutory termination of sale and purchase
agreements.
(1) Notwithstanding anything contained in any agreement,
a licensed housing developer may apply to the Minister for approval to
terminate all the sale and purchase agreements entered into in respect
of a housing development or any phase of a housing development which the
housing developer is engaged in, carries on or undertakes or causes to
be undertaken if-
(a) six months after
the execution of the sale and purchase agreements, development of the
housing accommodation in that housing development or phase has not commenced;
and
(b) at least seventy-five
per cent of all the purchasers who have entered into the sale and purchase
agreements have agreed with the housing developer in writing to terminate
the sale and purchase agreements.
(2) Any application made under subsection (1) shall
be supported by-
(a) the written consent
of the licensed housing developer and of each of the purchasers who
have agreed to terminate the sale and purchase agreements and such consent
shall have been duly executed by the licensed housing developer and
the purchaser, as the case may be, and witnessed by his solicitors or
a Commissioner for Oaths not earlier than one month before the date
of the application; and
(b) such other documents
or evidence as the Minister may require or as may be determined including
such evidence which may satisfy the Minister that the licensed housing
developer is financially capable of refunding to the purchasers and
their financiers all the moneys paid by them to the licensed housing
developer if the Minister approves such application.
(3) For the purpose of this section, joint purchasers
irrespective of any number in a sale and purchase agreement shall be considered
as one purchaser.
(4) Upon receipt of an application under subsection
(1), the Minister may grant or refuse the application for approval.
(5) In granting the approval under subsection (4) the
Minister may impose such conditions as he may deem fit and proper.
(6) The decision of the Minister shall be final and
shall not be questioned in any court and it shall be binding on the licensed
housing developer and all the purchasers and no injunction shall be granted
to restrain any person from carrying out the decision of the Minister.
(7) All the sale and purchase agreements in respect
of the housing development or the phase of a housing development which
is the subject of an approval under subsection (4) including those of
the remaining purchasers who have not agreed to the termination shall
be deemed to have been duly terminated.
(8) The licensed housing developer shall, within fourteen
days from the date of receipt of the Minister's approval, inform all the
purchasers in writing of the Minister's decision.
(9) The licensed housing developer shall refund all
moneys received by the licensed housing developer from the respective
purchasers free of any interest within the period stated in the Minister's
approval.
(10) Upon receipt of the refund under subsection (9),
the purchasers shall immediately cause all encumbrances on the land to
be removed and the cost and expenses for such removal shall be borne by
and may be claimed as a civil debt from the housing developer.
(11) Any person who fails to comply with any of the
provisions of this section shall be guilty of an offence and shall, on
conviction, be liable to a fine not exceeding fifty thousand ringgit and
to a further fine not exceeding five thousand ringgit for every day during
which the offence continues after conviction.".
19. New Part IV.
The principal Act is amended by inserting before section
10 the following heading:
"PART IV
INVESTIGATION AND ENFORCEMENT".
20. Amendment of section 10.
Section 10 of the principal Act is amended-
(a) in subsection (1),
by inserting after the word "investigate" the words "the commission of
any offence under this Act or investigate"; and
(b) by deleting subsection
(3).
21. New sections 10A, 10B, 10C, 10D, 10E, 10F,
10G, 10H, 10I and 10J.
The principal Act is amended by inserting after section
10 the following sections:
"10A. Powers of entry, search and seizure.
(1) If it appears to a Magistrate, upon written information
on oath and after such inquiry as he considers necessary, that there is
reasonable cause to believe that any premises have been used or are about
to be used for, or there is in or on any premises evidence necessary to
establish, the commission of an offence under this Act, the Magistrate
may issue a warrant authorizing an Inspector to whom it is directed, at
any reasonable time by day or night and with or without assistance-
(a) enter any premises
and there search for, seize and detain any property, book or other document;
(b) inspect, make copies
of, or take extracts from, any book or other document so seized and
detained;
(c) take possession of,
and remove from the premises, any property, book or other document so
seized and detained;
(d) search any person
who is in, or on, such premises, and for the purpose of such search
detain such person and remove him to such place as may be necessary
to facilitate such search, and seize and detain any property, book or
other document found on such person;
(e) break open, examine,
and search, any article, container or receptacle; or stop, detain or
search any conveyance.
(2) An Inspector authorized under subsection (1) may,
if it is necessary so to do-
(a) break open any outer
or inner door of such premises and enter such premises and every part
of such premises;
(b) remove by force any
obstruction to such entry, search, seizure, detention or removal; or
(c) detain all or any
persons found on any premises, or in any conveyance, searched under
subsection (1) until such premises or conveyance have been searched.
(3) If an Inspector has reasonable cause to suspect
by reason of delay in obtaining a search warrant under subsection (1)
that-
(a) the investigation
would be adversely affected; or
(b) evidence of the commission
of an offence is likely to be tampered with, removed, damage or destroyed,
he may enter the premises and exercise in, and in respect
of the premises, all the powers referred to in subsections (1) and (2)
in as full and ample a manner as if he were authorized to do so by a warrant
under subsection (1).
(4) A list of all things seized in the course of a search
made under this section and of the places in which they are respectively
found shall be prepared by the Inspector conducting the search and signed
by him.
(5) The occupant of the premises entered under subsection
(1), or some person on his behalf, shall in every instance be permitted
to attend during the search, and a copy of the list prepared and signed
under subsection (4) shall immediately be delivered to such occupant or
person.
(6) An Inspector shall, unless otherwise ordered by
any court-
(a) on the close of investigations
or any proceedings arising therefrom; or
(b) with the prior written
consent of the Controller for the Inspector to act on his behalf for
this purpose at any time before the close of investigations,
release any property, book or other document seized,
detained or removed by him or any other Inspector, to such person as he
determines to be lawfully entitled to the property, book or other document
if he is satisfied that it is not required for the purpose of any prosecution
or proceedings under this Act, or for the purpose of any prosecution under
any other written law.
(7) A record in writing shall be made by the Inspector
effecting any release of any property, book or other document under subsection
(6) in respect of such release specifying therein in detail the circumstances
of, and the reason for, such release.
(8) Where the Inspector is unable to determine the person
who is lawfully entitled to the property, book or other document or where
there is more than one claimant to such property, book or other document,
the Inspector shall report the matter to a Magistrate who shall then deal
with the property, book or other document as provided for in subsections
413(2), (3) and (4) and sections 414, 415 and 416 of the Criminal Procedure
Code [Act 593].
10B. Search of person.
(1) An Inspector may search any person whom he has reason
to believe has on his person any property, book or other document, or
other article necessary, in his opinion, for the purpose of an investigation
into any offence under this Act, and for the purpose of such search may
detain such person for such period as may be necessary to have the search
carried out, which shall not in any case exceed twenty-four hours without
the authorization of a Magistrate, and may remove him in custody to such
place as may be necessary to facilitate such search.
(2) An Inspector making a search of a person under subsection
(1) may seize, detain, or take possession of any property, book or other
document, or article, found upon such person for the purpose of the investigation
being carried out by him.
(3) No female person shall be searched under this section
or under section 1OA except by another female person and with strict regard
for decency.
10C. Obstruction to exercise of powers by an
Inspector.
No person shall-
(a) refuse any Inspector
exercising his powers under section 10A or 10B access to any premises
or any part of such premises, or fail to submit to the search of his
person;
(b) assault, obstruct,
hinder or delay such Inspector in effecting any entrance which he is
entitled to effect;
(c) fail to comply with
any lawful demands of any Inspector in the execution of his duties under
section 10A or 10B;
(d) refuse to give to
an Inspector any information which may reasonably be required of him
and which he has it in his power to give;
(e) fail to produce to,
or conceal or attempt to conceal from, an Inspector, any property, book,
other document, or article in relation to which an Inspector has reasonable
grounds for suspecting that an offence has been or is being committed
under this Act;
(f) rescue or endeavour
to rescue any thing which has been duly seized;
(g) furnish to the Inspector
as true any information which he knows or has reason to believe to be
false; or
(h) before or after any
seizure, break or otherwise destroy any thing to prevent the seizure
or the securing of the thing.
10D. Requirement to provide translation.
(1) Where an Inspector finds, seizes, detains, or takes
possession of any book or other document in the exercise of any power
under this Act, and such book or other document or any part of it is in
a language other than the national language or the English language, or
in any sign or code, the Inspector may orally or in writing require the
person who had the possession, custody or control of such book or other
document, to furnish to the Inspector a translation in the national language
of such book or other document within such period as, in the opinion of
the Inspector, would be reasonable having regard to the length of the
book or other document, or other circumstances relating to it.
(2) No person shall knowingly furnish a translation
under subsection (1) which is not an accurate, faithful and true translation,
or knowingly make a translation under that subsection which is not accurate,
faithful and true.
10E. Power to examine persons.
(1) Where an Inspector suspects any person to have committed
an offence under this Act, he may, if in his opinion it is reasonably
necessary to do so for the purposes of investigating into such offence-
(a) order any person
orally or in writing to attend before the Inspector for the purpose
of being examined orally by the Inspector in relation to any matter
which may, in the opinion of the Inspector, assist in the investigation
into the offence;
(b) order any person
orally or in writing to produce before the Controller or the Inspector
books, other documents, property, articles, or things which may, in
the opinion of the Controller or the Inspector, assist in the investigation
into the offence; or
(c) by written notice
require any person to furnish a statement in writing made on oath or
affirmation setting out in the notice all such information which may
be required under the notice, being information which, in the opinion
of the Controller, would be of assistance in the investigation into
the offence.
(2) A person to whom an order under paragraph (l)(a)
or (b), or a written notice under paragraph (l)(c), has
been given shall comply with the terms of such order or written notice,
as the case may be, and, in particular-
(a) a person to whom
an order under paragraph (1)(a) has been given shall attend in
accordance with the terms of the order to be examined, and shall continue
to so attend from day to day as directed by the Inspector until the
examination is completed, and shall during such examination disclose
all information which is within his knowledge, or which is available
to him, or which is capable of being obtained by him, in respect of
the matter in relation to which he is being examined, whether or not
any question is put to him with regard thereto, and where any question
is put to him he shall answer the question truthfully and to the best
of his knowledge and belief, and shall not refuse to answer any question
on the ground that it tends to incriminate him;
(b) a person to whom
an order has been given under paragraph (1)(b) shall not conceal,
hide, destroy, alter, remove from or send out of Malaysia, or deal with,
expend, or dispose of, any book, other document, property, article,
or thing specified in the order, or alter or deface any entry in any
such book or other document, or cause such act to be done, or assist
or conspire to do the act; and
(c) a person to whom
a written notice has been given under paragraph (1)(c) shall,
in his statement made on oath or affirmation, furnish and disclose truthfully
all information required under the notice which is within his knowledge,
or which is available to him, or which is capable of being obtained
by him, and shall not fail to furnish or disclose the information on
the ground that it tends to incriminate him.
(3) A person to whom an order or a notice is given under
subsection (1) shall comply with such order or notice and with the provisions
of subsection (2) in relation to the order or notice, notwithstanding
the provisions of any written law, whether enacted before or after the
commencement of this Act, or of any oath, undertaking or requirement of
secrecy, to the contrary, or of any obligation under any contract, agreement
of arrangement, whether express or implied, to the contrary.
(4) Where any person discloses any information or produces
any property, book, other document, article, or thing, pursuant to subsections
(1) and (2), neither the first-mentioned person, nor any other person
on whose behalf or direction or as whose agent or employee the first-mentioned
person may be acting, shall, on account of such disclosure or production,
be liable to any prosecution for any offence under or by virtue of any
law, or to any proceeding or claim in any form or of any description by
any person under or by virtue of any agreement or arrangement, or otherwise.
(5) An Inspector may seize, take possession of and retain
for such duration as he deems necessary, any property, book, other document,
article or thing produced before him in the course of an investigation
under subsection (1), or search the person who is being examined by him
under paragraph (1)(a), or who produces anything to him under paragraph
(1)(b), for ascertaining whether anything relevant to the investigation
is concealed, upon such person or is otherwise upon such person.
(6) An examination under paragraph (1)(a) shall
be reduced into writing by the Inspector and shall be read to and signed
by the person being examined, and where such person refuses to sign the
record, the Inspector shall endorse on the record under his hand the fact
of such refusal and the reasons for such refusal, if any, stated by the
person examined.
(7) The record of an examination under paragraph (1)(a),
or a written statement on oath or affirmation made pursuant to paragraph
(1)(c), or any property, book, other document, article or thing
produced under paragraph (1)(b) or in the course of an examination
under paragraph (1)(a) or under a written statement on oath or
affirmation made pursuant to paragraph (1)(c), shall, notwithstanding
any written law or rule of law to the contrary, be admissible in evidence
in any proceedings in any court-
(a) for, or in relation
to, an offence under this Act; or
(b) for, or in relation
to, any other matter under this Act,
regardless whether such proceedings are against the
person who was examined, or who produced the property, book, other document,
article or thing, or who made the written statement on oath or affirmation,
or against any other person.
10F. Specific persons in respect of whom powers
of investigation may be exercised.
The powers of investigation conferred by this Act on
an Inspector, may be exercised by him against-
(a) any past or present
business associate; or
(b) any person who is
or was concerned in the control or management, in whole or in part of
the affairs,
of the person suspected to have committed an offence
under this Act.
10G. Assistance to police or other public officer.
The Controller may on his own initiative, or on the
request of an Inspector-
(a) supply to a police
officer or any other public officer a copy of any book or other document
seized, detained or taken possession of under section 10A or 10B, or
of any record of examination under paragraph 10E(l)(a), or of
any written statement on oath or affirmation made under paragraph 10E(l)(c),
or of any book or other document produced under paragraph 10E(l)(b),
or otherwise in the course of any examination under paragraph 10E(l)(a),
or under any written statement on oath or affirmation made pursuant
to paragraph 10E(l)(c), and such police officer or other public
officer may make such use of such copy of such record, statement, book
or other document as may be necessary or expedient in relation to the
exercise of his powers, the performance of his functions, or the discharge
of his duties, in respect of any person; or
(b) allow a police officer
or any other public officer to have access to and inspect any property,
book, other document, article or thing which had been produced before,
or seized, detained or taken possession of, by an Inspector under this
Act, and such police or other public officer may make such use of any
knowledge gained by such access or inspection as may be necessary or
expedient in relation to the exercise of his powers, the performance
of his functions, or the discharge of his duties, in respect of any
person.
10H. Protection of informers.
(1) Except as provided in subsection (3), no witness
in any civil or criminal proceedings shall be obliged or permitted to
disclose the name or address of any informer or the substance and nature
of the information received from him or to state any matter which may
lead to his discovery.
(2) If any books, documents, records or papers which
are in evidence or are liable to inspection in any civil or criminal proceedings
contain any entry in which any informer is named or described or which
might lead to his discovery, the court shall cause all such passages to
be concealed from view or to be obliterated so far only as may be necessary
to protect the informer from discovery.
(3) If on trial for any offence under this Act the court
after full inquiry into the case believes that the informer willfully
made in his complaint a material statement which he knew or believed to
be false or did not believe to be true, or if in any other proceeding
the court is of the opinion that justice cannot be fully done between
the parties to the proceeding without the discovery of the informer, it
shall be lawful for the court to require the production of the original
complaint, if in writing, and permit enquiry, and require full disclosure,
concerning the informer.
10I. Authority to act.
An Inspector when acting under this Part shall on demand
declare his office and produce to the person against whom he is acting
such written authorization as the Controller may direct to be carried
by such Inspector.
10J.
Limitation on the powers of an Inspector.
No Inspector shall be entitled to exercise any of the
powers under this Part without prior written authorization from the Controller.".
22. New Part V.
The principal Act is amended by inserting before section
11 the following heading:
"PART V
POWERS OF MINISTER".
23. Amendment of section 11.
Section 11 of the principal Act is amended-
(a) in subsection (1) by
inserting after paragraph (c) the following paragraph:
"(ca) certify that the
licensed housing developer has abandoned the housing development;";
(b) by inserting after
subsection (1) the following subsection:
"(1A) In giving his direction or decision under paragraph
(1)(a), (b), (c) or (e), the Minister may specify
that any cost and expense reasonably incurred by such persons as may
be specified by the Minister in carrying out such direction or decision
of the Minister shall be paid from the Housing Development Account of
the housing development or from the moneys due to the Account."; and
(c) in subsection (2),
by inserting after the words "housing developer" the words "and the purchasers".
24. New sections 13A and 13B.
The principal Act is amended by inserting after section
13 the following section:
"13A. Controller to report the conduct of an
architect or engineer.
Where the Controller is satisfied that the conduct of
an architect or engineer of a housing developer has prejudiced the interest
of the purchaser of the licensed housing developer, the Controller may
report such conduct of the architect or engineer to his respective professional
body.
13B. Transfer or assignment of a licence.
No licence or any right to the licence issued to a housing
developer under this Act shall be transferred or assigned and any such
transfer or assignment shall be void.".
25. New Part VI.
The principal Act is amended by inserting after section
16 the following Part:
"PART VI
TRIBUNAL FOR HOMEBUYER CLAIMS
16A. Meaning of "homebuyer".
For the purpose of this Part, "homebuyer" means a purchaser
and includes a person who has subsequently purchased a housing accommodation
from the first purchaser of the housing accommodation.
16B. Establishment of Tribunal for Homebuyer
Claims.
A tribunal to be known as the "Tribunal for Homebuyer
Claims" is established.
16C. Membership of Tribunal.
(1) The Tribunal shall consist of the following members:
(a) a Chairman and a
Deputy Chairman to be appointed by the Minister from amongst members
of the Judicial and Legal Service; and
(b) not less than five
other members to be appointed by the Minister from amongst persons who
are members of the Judicial and Legal Service or advocates and solicitors
of the High Court in Malaya and have practised for not less than seven
years.
(2) The members referred to in paragraph (1)(b)-
(a) shall hold office
for a term not exceeding three years; and
(b) shall be eligible
for reappointment upon the expiry of his term of office but shall not
be appointed for more than three consecutive terms.
16D. Temporary exercise of functions of Chairman.
Where the Chairman is for any reason unable to perform
his functions or during any period of vacancy in the office of the Chairman,
the Deputy Chairman shall perform the functions of the Chairman.
16E. Vacation of office.
The office of a member of the Tribunal shall become
vacant-
(a) upon the death of
the member;
(b) upon the member resigning
from such office by giving three months' written notice to the Minister;
(c) upon the expiry of
his term of office; or
(d) upon the member ceasing
to be a member of the Judicial and Legal Service or an advocate and
solicitor of the High Court in Malaya.
16F. Revocation of appointment.
The Minister may revoke the appointment of a member
of the Tribunal appointed under paragraph 16C(1)(b)-
(a) if his conduct, whether
in connection with his duties as a member of the Tribunal or otherwise,
has been such as to bring discredit to the Tribunal;
(b) if he has become
incapable of properly carrying out his duties as a member of the Tribunal;
(c) if there has been
proved against him, or he has been convicted on, a charge in respect
of-
(i) an offence involving fraud, dishonesty or moral
turpitude;
(ii) an offence under a law relating to corruption;
(iii) an offence under this Act; or
(iv) any other offence punishable with imprisonment
for more than two years;
(d) if he is adjudicated
a bankrupt;
(e) if he has been found
or declared to be of unsound mind or has otherwise become incapable
of managing his affairs; or
(f) if he absents himself
from three consecutive sittings of the Tribunal without leave of the
Chairman.
16G. Resignation.
A member of the Tribunal appointed under paragraph 16C(1)(b)
may at any time resign his office by giving three months' written notice
to the Minister.
16H. Filling of vacancy.
Where a member ceases to be a member of the Tribunal,
the Minister may appoint another person to fill the vacancy.
16I. Remuneration.
(1) The members of the Tribunal appointed under paragraph
16C(1)(a) shall be paid such fixed allowances and other allowances
as the Minister may determine.
(2) The members of the Tribunal appointed under paragraph
16C(1)(b) shall be paid-
(a) a daily sitting allowance
during the sitting of the Tribunal; and
(b) such lodging, travelling
and subsistence allowances,
as the Minister may determine.
(3) The remuneration provided for in subsections (1)
and
(2) shall be charged on the Consolidated Fund.
16J. Secretary to Tribunal and other officers.
(1) There shall be appointed a Secretary to the Tribunal
and such number of officers as may be necessary for carrying out the functions
of the Tribunal.
(2) The Chairman shall have general control of the officers
of the Tribunal.
(3) For the purposes of this Act, the Secretary to the
Tribunal shall be deemed to be an officer of the Tribunal.
16K. Sittings of Tribunal.
(1) The jurisdiction of the Tribunal shall be exercised
by any of the following persons sitting alone:
(a) the Chairman of the
Tribunal;
(b) the Deputy Chairman
of the Tribunal; or
(c) any member of the
Tribunal determined by the Chairman.
(2) The Tribunal may sit in one or more sittings on
such day and at such time and place as the Chairman may determine.
(3) If the person presiding over any proceedings in
respect of a claim dies or becomes incapacitated, or is for any other
reason unable to complete or dispose of the proceedings, the claim shall
be heard afresh by another member of the Tribunal, unless the parties
agree that the claim be continued by another member of the Tribunal.
(4) Where the term of appointment of any member of the
Tribunal under this section expires during the pendency of any proceedings
in respect of a claim, the term of his appointment shall be deemed to
be extended until the final disposal of the claim.
16L. Commencement of proceedings.
A homebuyer may lodge with the Tribunal a claim in the
prescribed form together with the prescribed fee claiming for any loss
suffered or any matter concerning his interests as a homebuyer under this
Act.
16M. Jurisdiction of Tribunal.
(1) Subject to sections 16N and 16O, the Tribunal shall
have jurisdiction to determine a claim lodged under section 16L where
the total amount in respect of which an award of the Tribunal is sought
does not exceed twenty-five thousand ringgit.
(2) Subject to subsection (1), a respondent to a claim
may raise a debt or liquidated demand as-
(a) a defence; or
(b) a counter-claim.
(3) Where a respondent raises a debt or liquidated demand
under subsection (2) and the debt or demand is proved the Tribunal shall-
(a) give effect to the
defence; or
(b) hear and determine
the counter-claim notwithstanding that the original claim is withdrawn,
abandoned or struck out.
(4) Any claim lodged with the Tribunal may include loss
or damage of a consequential nature.
16N. Limitation of jurisdiction.
(1) Except as expressly provided under this Act, the
Tribunal shall have no jurisdiction in respect of any claim-
(a) for the recovery
of land, or any estate or interest in land; and
(b) in which there is
a dispute concerning-
(i) the entitlement of any person under a will or
settlement, or on intestacy (including partial intestacy);
(ii) goodwill;
(iii) any chose in action; or
(iv) any trade secret or other intellectual property
right.
(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.
(3) Notwithstanding subsection (2) no claim shall be
affected or defeated on the ground that no sale and purchase agreement
has been entered into between the homebuyer 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.
(4) Nothing in this section shall be deemed to authorize
the Tribunal to deal with a claim arising from personal injury or death.
(5) For the purposes of subsection (1), "land" does
not include fixtures.
16O. Extension of jurisdiction by agreement.
(1) Notwithstanding that the amount or value of the
subject-matter claimed or in issue exceeds twenty-five thousand ringgit,
the Tribunal shall have jurisdiction to hear and determine the claim if
the parties have entered into an agreement in writing that the Tribunal
shall have jurisdiction to hear and determine the claim.
(2) An agreement may be made under subsection (1)-
(a) before a claim is
lodged under section 16L; or
(b) where a claim has
been lodged under section 16L, at any time before the Tribunal has recorded
an agreed settlement in respect of the claim under subsection 16T(3)
or has determined the claim under section 16y, as the case may be.
16P. Abandonment to bring claim within jurisdiction.
(1) A claimant may abandon so much of a claim as exceeds
twenty-five thousand ringgit in order to bring the claim within the jurisdiction
of the Tribunal.
(2) Where a part of a claim has been abandoned under
subsection (1), the Tribunal's record of an agreed settlement under subsection
16T(3) or the Tribunal's award under section 16Y, as the case may be,
in relation to the claim shall operate to discharge the person-
(a) who is a party to
that agreed settlement; or
(b) against whom the
claim is brought and the subsequent award is made,
from liability in respect of the amount so abandoned.
16Q.Cause of action not to be split.
Claims may not be split, nor more than one claim brought,
in respect of the same matter against the same party for the purpose of
bringing it within the jurisdiction of the Tribunal.
16R. Exclusion of jurisdiction of court.
(1) Where a claim is lodged with the Tribunal and the
claim is within the Tribunal's jurisdiction, the issues in dispute in
that claim, whether as shown in the initial claim or as emerging in the
course of the hearing, shall not be the subject of proceedings between
the same parties in any court unless-
(a) the proceedings before
the court were commenced before the claim was lodged with the Tribunal;
or
(b) the claim before
the Tribunal is withdrawn, abandoned or struck out.
(2) Where paragraph (1)(a) applies, the issues
in dispute in the claim to which those proceedings relate, whether as
shown in the initial claim or emerging in the course of the hearing, shall
not be the subject of proceedings between the same parties before the
Tribunal unless the claim before the court is withdrawn, abandoned or
struck out.
16S. Notice of claim and hearing.
Upon a claim being lodged under section 16L, the Secretary
to the Tribunal shall give notice of the details of the day, time and
place of hearing in the prescribed form to the claimant and the respondent.
16T. Negotiation for settlement.
(1) The Tribunal shall, as regards every claim within
its jurisdiction, assess whether, in all the circumstances, it is appropriate
for the Tribunal to assist the parties to negotiate an agreed settlement
in relation to the claim.
(2) Without limiting the generality of subsection (1),
in making an assessment the Tribunal shall have regard to any factors
that, in the opinion of the Tribunal, are likely to impair the ability
of either or both of the parties to negotiate an agreed settlement.
(3) Where the parties reach an agreed settlement, the
Tribunal shall approve and record the settlement and the settlement shall
then take effect as if it were an award of the Tribunal.
(4) Where-
(a) it appears to the
Tribunal that it would not be appropriate for it to assist the parties
to negotiate an agreed settlement in relation to the claim; or
(b) the parties are unable
to reach an agreed settlement in relation to the claim,
the Tribunal shall proceed to determine the dispute.
16U. Right to appear at hearings.
(1) At the hearing of a claim every party shall be entitled
to attend and be heard.
(2) No party shall be represented by an advocate and
solicitor at a hearing unless in the opinion of the Tribunal the matter
in question involves complex issues of law and one party will suffer severe
financial hardship if he is not represented by an advocate and solicitor;
but if one party is subsequently allowed to be represented by an advocate
and solicitor then the other party shall also be so entitled.
(3) Subject to subsection (2) but notwithstanding section
37 of the Legal Profession Act 1976 [Act 166]-
(a) a corporation or
an unincorporated body of persons may be represented by a full-time
paid employee of the corporation or body;
(b) a minor or any other
person under a disability may be represented by his next friend or guardian
ad item.
(4) Where a party is represented as permitted under
subsection (3), the Tribunal may impose such conditions as it considers
necessary to ensure that the other party to the proceedings is not substantially
disadvantaged.
16V. Proceedings to be public.
All proceedings before the Tribunal shall be open to
the public.
16W. Evidence.
(1) The Tribunal may-
(a) procure and receive
all such evidence on oath or affirmation, whether written or oral, and
examine all such persons as witnesses, as the Tribunal thinks necessary
to procure, receive or examine;
(b) require the production
before it of books, papers, documents, records and things;
(c) administer such oath,
affirmation or statutory declaration as the case may require;
(d) seek and receive
such other evidence and make such other inquiries as it thinks fit;
(e) summon the parties
to the proceedings or any other person to attend before it to give evidence
or to produce any document, records or other thing in his possession
or otherwise to assist the Tribunal in its deliberations;
(f) receive expert evidence;
and
(g) generally direct
and do all such things as may be necessary or expedient for the expeditious
determination of the claim.
(2) A summons issued under this section shall be served
and enforced as if it were a summons issued by a subordinate court.
16X. Tribunal may act in absence of party.
The Tribunal may hear and determine the claim before
it notwithstanding the absence of any party to the proceedings if it is
proved to the satisfaction of the Tribunal that a notice of the hearing
has been duly served on the absent party.
16Y. Awards of the Tribunal.
(1) The Tribunal shall make its award without delay
and, where practicable, within sixty days from the first day the hearing
before the Tribunal commences.
(2) An award of the Tribunal under subsection (1) may
require one or more of the following:
(a) that a party to the
proceedings pay money to any other party;
(b) that the price or
other consideration paid by the homebuyer or any other person be refunded
to the homebuyer or that person;
(c) that a party comply
with the sale and purchase agreement;
(d) that money be awarded
to compensate for any loss or damage suffered by the claimant;
(e) that the contract
be varied or set aside, wholly or in part;
(f) that costs to or
against any party be paid;
(g) that interest be
paid on any sum or monetary award at a rate not exceeding eight per
centum per annum, unless it has been otherwise agreed between the parties;
(h) that the claim is
dismissed.
(3) Nothing in paragraph (2)(d) or (e)
shall be deemed to empower the Tribunal to award any damages for any non-pecuniary
loss or damage.
16Z. Reference to a Judge of the High Court
on a question of law.
(1) Before the Tribunal makes an award under section
16Y, it may, in its discretion, refer to a Judge of the High Court a question
of law-
(a) which arose in the
course of the proceedings;
(b) which, in the opinion
of the Tribunal, is of sufficient importance to merit such reference;
and
(c) the determination
of which by the Tribunal raises, in the opinion of the Tribunal, sufficient
doubt to merit such reference.
(2) If the Tribunal refers any question of law under
subsection (1) for the decision of a Judge of the High Court, it shall
make its award in conformity with such decision.
(3) A Federal Counsel authorized by the Attorney General
for the purpose may appear on behalf of the Tribunal in any proceedings
before a Judge of the High Court under this section.
16AA. Reasons for decision.
The Tribunal shall in all proceedings give its reasons
for its award in the proceedings.
16AB. Orders and settlement to be recorded in
writing.
The Tribunal shall make or cause to be made a written
record of the terms of-
(a) every agreed settlement
reached by the parties under subsection 16T(3); and
(b) every award made
by it under section 16Y.
16AC. Decisions of Tribunal to be final.
(1) Every agreed settlement recorded by the Tribunal
under subsection 16T (3) and every award made by the Tribunal under section
16Y-
(a) shall be final and
binding on all parties to the proceedings; and
(b) shall be deemed to
be an order of a Magistrate's Court and be enforced accordingly by any
party to the proceedings;
(2) For the purpose of paragraph (1)(b), the
Secretary to the Tribunal shall send a copy of the award made by the Tribunal
to the Magistrate's Court having jurisdiction in the place to which the
award relates or in the place where the award was made and the Court shall
cause the copy to be recorded.
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.
16AE. Procedure where no provision is made.
Subject to this Act and to any regulations, the Tribunal
shall adopt such procedure as it thinks fit and proper.
16AF. Want of form.
No proceedings of the Tribunal or award or other document
of the Tribunal shall be set aside or quashed for want of form.
16AG. Disposal of documents, etc.
(1) The Tribunal may, at the conclusion of the proceedings
before it, order that any document, record, material or other property
produced during the proceedings be delivered to the rightful owner or
be disposed of in such manner as it thinks fit.
(2) Where no person has taken delivery of the document,
record, material or other property referred to in subsection (1) after
a period of six months, the ownership in the document, record, material
or other property shall be deemed to have passed to and become vested
in the Government.
16AH. Act or omission done in good faith.
No action or suit shall be instituted or maintained
in any court against-
(a) the Tribunal;
(b) a member of the Tribunal;
or
(c) a person authorized
to act for or on behalf of the Tribunal,
for any act or omission done in good faith in the performance
of its or his functions and the exercise of its or his powers under this
Act.
16AI. Regulations in respect of the Tribunal.
(1) The Minister may make such regulations as may be
necessary or expedient in respect of the Tribunal.
(2) Without prejudice to the generality of subsection
(1), regulations may be made for-
(a) prescribing the responsibilities
of members of the Tribunal;
(b) prescribing the procedure
of the Tribunal;
(c) prescribing the forms
to be used in proceedings under this Part;
(d) prescribing and imposing
fees and providing for the manner for collecting and disbursing such
fees;
(e) prescribing anything
required to be prescribed under this Part.".
26. New Part VII.
The principal Act is amended by inserting before section
17 the following heading:
"PART VII
MISCELLANEOUS".
27. Amendment of section 18.
Section 18 of the principal Act is amended-
(a) by substituting for
the word "ten" the word "fifty"; and
(b) by substituting for
the word "one" the word "five".
28. Amendment of section 19.
Section 19 of the principal Act is amended-
(a) by deleting paragraph
(b);
(b) by substituting for
the word "ten" the word "fifty"; and
(c) by substituting for
the words "a further fine of' the words "a further fine not exceeding".
29. Amendment of section 20.
Section 20 of the principal Act is amended by substituting
for the word "ten" the word "fifty".
30. Amendment of section 21.
Section 21 of the principal Act is amended by substituting
for the word "ten" the word "fifty".
31. Amendment of section 22.
Subsection 22(1) of the principal Act is amended by substituting
for the word "ten" the word "fifty".
32. New sections 22A, 22B and 22C.
(1) The principal Act is amended by inserting after section
22 the following sections:
"22A. Public servants and public officers.
The Controller, every Deputy Controller, every Inspector
and all members and officers of the Tribunal shall be deemed to be public
servants for the purposes of the Penal Code [Act 574], and to be
public officers for the purposes of the Criminal Procedure Code or any
other written law which the Minister may from time to time prescribe.
22B. Application of Public Authorities Protection
Act 1948.
The Public Authorities Protection Act 1948 [Act 198]
shall apply to any action, suit, prosecution or proceedings against the
Minister, Controller, any Deputy Controller, any Inspector, the Tribunal
or any member or officer of the Tribunal in respect of any act, neglect
or default done or committed by him in such capacity.
22C. Right to initiate and maintain actions.
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 as inserted into the principal
Act by subsection (1).
33. New section 23A.
The principal Act is amended by inserting after section
23 the following section:
"23A. Power to compound.
(1) The Controller may compound any offence against
this Act or any regulations made under this Act which has been prescribed
under paragraph 24(2)(i) to be a compoundable offence by collecting
from the person reasonably suspected of having committed the offence a
sum of money not exceeding the maximum fine prescribed for that offence.
(2) Where an offence has been compounded under subsection
(1), no prosecution shall thereafter be instituted in respect of the compounded
offence.
(3) Any moneys paid to the Controller under this section
shall be paid into and form part of the Consolidated Fund.".
34. Amendment of section 24.
Subsection 24(2) of the principal Act is amended-
(a) by substituting for
paragraph (f) the following paragraph:
"(f) prescribe the fees
which are payable under this Act;";
(b) by deleting the word
"and" at the end of paragraph (g);
(c) by substituting for
the full stop at the end of paragraph (h) a semicolon; and
(d) by inserting after
paragraph (h) the following paragraphs:
"(i) prescribe offences
which may be compounded and the forms to be used in and the method and
the procedure for compounding such offences; and
(j) provide for any matter
which under this Act is required or permitted to be prescribed or which
is necessary or expedient to be prescribed to give effect to this Act.".
35. Savings and transitional.
(1) The provisions of the principal Act as amended by
this Act, except Part VI and sections 22, 23 and 24 in so far as they relate
to an offence under section 16AD of this Act, shall not apply to any housing
development engaged in, carried on, undertaken or caused to be undertaken
under the principal Act by-
(a) a society registered
or incorporated under any written law relating to co-operative societies;
or
(b) any body or agency
established and incorporated by statute and under the control of the Federal
Government or the Government of any State,
as the case may be, if housing accommodation had been
offered for sale.
(2) For the purpose of subsection (1), the term "licensed
housing developer" in Part VI of the principal Act shall be deemed to include
a society, body or agency referred to in that subsection.
(3) Any such society, body or agency as is referred to
in paragraphs (1)(a) and (b) engaged in, carrying on, undertaking
or causing to be undertaken any housing development where housing accommodation
had not been offered for sale before the appointed date shall, not later
than six months from the appointed date, apply to the Controller for a licence
under the principal Act.
(4) Pending the decision by the Controller on the application
for a licence made under subsection (3), the applicant shall be deemed to
be licensed under this Act.
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