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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. |
