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www.ipsofactoJ.com/appeal/index.htm [2008] Part 3 Case 5 [FCM] |
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Judgment
Nik Hashim FCJ
The appellant, the Board of Engineers, Malaysia, a statutory body established pursuant to s. 3 of the Registration of Engineers Act 1967 (the Act) appeals to the Federal Court against the decision of the Court of Appeal given on 17 February 2004, whereby the Court of Appeal dismissed the appellant's appeal with costs against the decision of the High Court which allowed Leong Pui Kun's, the respondent's application for orders of certiorari and mandamus to quash the appellant's decision dated 13 July 2000 cancelling the respondent's registration as a professional engineer and to direct the appellant to reinstate the respondent as a professional engineer registered with the appellant respectively.
FACTUAL BACKGROUND
The facts are that on 16 September 1995 a 32-metre span of partly constructed steel truss linkway bridge at the Matshushita Television Co Sdn Bhd factory in Shah Alam, collapsed whereby one person was killed and five persons were injured (the incident). Soon after the incident, the Director of the Selangor Public Works Department set up a 4-member Technical Sub-Committee to investigate into the incident. Dr. Judin Abdul Karim, Head of Structural Studies and Analysis Group (Public Works Department) was one of them. The others were: Ir. Abu Bakar Mohd. Amin, Director PWD Selangor as Technical Sub-committee chairman, Dr. Gue See Sew and Mr. Yahya Ariffin. The findings were set out in the Technical Sub-Committee Report (TSC report) (pp 866-918 of the appeal record). The findings of TSC report indicates, inter alia, under design of the linkway bridge to support the given loads during construction, ineffective lateral restraints and weaknesses in the current system of construction supervision and enforcement as the root causes of the collapse (see p 870 of the appeal record).
The appellant set up a 3-member Ad Hoc Committee (Ir. Wan Mohamed bin Ismail, Ir. Prof. Ishak bin Abdul Rahman and Ir. Dr. Khoo Ping Sen) (the AHC) with regard to the incident and the role of the registered engineer involved, i.e., the respondent. The actions taken by the AHC are as detailed in their report and included three meetings, on 26 September 1996, 10 October 1996 and 22 July 1997. The meeting on 10 October 1996 was attended by the respondent in person. The AHC set out its recommendations in a report (the AHC report) (pp 1040-1108 of the appeal record) to the appellant for the appellant to conduct a hearing under s. 15 of the Act. The conclusions and recommendations of the AHC are found at pp 1048-1049 of the appeal record. Before the AHC, the respondent clearly acknowledged the deficiencies in the design of the linkway bridge and supervision of the construction works and the AHC report at pp 1048-1049 states:
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3.6 |
The Investigating Committee's report had highlighted the deficiency of the design in terms of the effective length, lateral buckling, slenderness of the beam, etc. |
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3.7 |
Ir. Leong P.K. explained that the whole project costed about RM35m. The Linkway cost was about 1% of the total cost. The Linkway design was prepared by Abu Bakar Alias, a Graduate Engineer. Under normal circumstances, Ir. Leong himself will check the design and the design will again be counterchecked by 2 engineers from Kajima Design Asia. However, in this particular case, somebody must have missed this part of the design and resulted in the collapse. He stated that the overloading is critical and agreed with the comment that if the Linkway was properly designed, the overloading would not affect it and cause the collapse. |
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4.1 |
The members noted that the design for the Linkway Bridge was given to a Graduate Engineer with less than 1 year design experience. Ir. Leong informed that he has been in practice for over 10 years and it is unfortunate such a mistake had slipped through. Although he did not prepare the design but as director in charge of the project, he has to sign the plans and take responsibility. The important thing is that the engineer who signs and submits the plans must have checked the plans himself or must have had the plans checked by a competent person. |
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4.2 |
The members noted that there were lack of experienced people supervising the works and that the consulting engineer, Ir. Leong or his representative did not play a very active role in the construction stage and the supervision of the works. |
Refer also to the minutes of meeting on 10 October 1996 wherein the respondent acknowledged the matters mentioned to the AHC (see pp 1068-1072 of the appeal record).
The appellant sent a written notice dated 11 November 1998 to the respondent informing him that he was required to answer to five charges as listed in the appellant's grounds of decision which shall be reproduced later. Charge 1 relates to design. Charges 2 to 4 relate to checking and supervision of the construction works while Charge 5 relates to submission of structural plans before the commencement of works.
The respondent vide his solicitors' letter of 7 December 1998 responded to the charges at pp 852-857 of the appeal record.
Thereafter, upon request by the respondent, a copy of the TSC report was given to the respondent, see p 864 of the appeal record.
The appellant fixed 9 August 1999 as the date of hearing of the five charges against the respondent. At the hearing the respondent was given opportunity to be heard orally and he was represented by counsel. The appellant heard the respondent and his expert and other witnesses and also received written witnesses' statements tendered by the respondent. Please see the notes of proceedings prepared by the respondent's counsel at pp 959-1032 of the appeal record. From the notes of proceedings it can be seen that the respondent, his witnesses or his counsel had confirmed and admitted to two important facts [emphasis added]:
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(i) |
There was inadequate or under design of the bridge by the respondent. [Please see p 985 of the appeal record.]
[Refer to appeal record p 986:]
[Refer to appeal record p 991]
[Refer to appeal record p 992]
[Refer to appeal record p 993]
[Refer to appeal record p 999]
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(ii) |
The respondent did not adequately supervise the construction of his design nor take any or adequate steps to ensure the construction was supervised by qualified persons. [Refer to appeal record p 987]
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After 9 August 1999 hearing the respondent's counsel submitted written submissions and authorities to the appellant for consideration in relation to the five charges.
On 13 July 2000 the appellant then made its decision on the charges against the respondent and exercised its power under the Act to order cancellation of the registration of the respondent as registered engineer and the grounds of decision for the appellant's order are now reproduced as follows [emphasis added]:
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Statement Of Ground Of Decision Re: Ir. Leong Pui Kun Collapse of the Linkway Bridge At Matshushita Television Co Sdn Bhd on 16th September 1995
Ir. Leong's counsel's submissions on the fairness of the Board's proceedings and other preliminary matters
Ir. Leong's learned counsel's submission on the various charges brought against Ir. Leong.
Charge 1
Charge 2
Charges 3 And 4
Charge 5
Summary of the Board's findings
Verified by Sgd. ( Zaini Omar) President, Board Of Engineers Malaysia |
The appellant made its findings with regard to the respondent's design (para 26 of the decision) and supervision of the works (paras 30, 31, 32, 34 and 35 of the decision) before the appellant found the respondent guilty on the charges 1 to 4 and pursuant to s. 15(1) of the Act, ordered that the respondent's registration as a professional engineer be cancelled with effect from 13 July 2000.
Notice of the cancellation order was given to the respondent by a letter dated 9 October 2000 (see pp 1033-1034 of the appeal record).
It is to be noted that from the evidence, the decision to cancel the registration of the respondent was made on 13 July 2000 and not on 9 October 2000 as found by the learned High Court judge. The appellant however, admitted in its affidavit at p 498 of the appeal record that 11 April 2000 was mistakenly stated as the date of the decision.
On 27 October 2000 the respondent appealed (pp 1038-1039 of the appeal record) against the whole of the decision of the appellant to the appeal board as provided under the Act.
PROCEEDINGS IN THE HIGH COURT
Meanwhile the respondent filed an application for judicial review under O. 53 of the Rules of the High Court 1980vide Kuala Lumpur High Court case No. R2-25-28-2001 seeking an order of certiorari to quash the order of the appellant and an order of mandamus to direct the appellant to reinstate the respondent as a professional engineer under the Act.
On 27 September 2001 the learned High Court Judge (Faiza bin Tamby Chik, J) allowed the respondent's application with costs on the grounds that there had been a non-compliance with the Act and there had been breaches of natural justice and procedural fairness as well (see [2002] 4 AMR 4631).
PROCEEDINGS IN THE COURT OF APPEAL
Dissatisfied with the decision, the appellant appealed to the Court of Appeal. On 17 February 2004 upon hearing the parties, the Court of Appeal dismissed the appeal with costs and affirmed the decision of the High Court. The grounds of judgment of the Court of Appeal were prepared by Mokhtar Sidin JCA who noted that the grounds were agreed to by Vincent K.K. Ng J (later JCA) and while the other member Denis J.F. Ong JCA had since retired (see [2008] 2 CLJ 466). In his grounds of judgment, Mokhtar Sidin JCA reproduced substantial extracts from the High Court judgment, and he concluded at pp 535 and 536 of the report as follows:
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16. |
Having gone through the voluminous record of appeal it is clear to me that the learned judge had studied all the evidence produced before him whether by affidavits and documents made available and he came with a very comprehensive judgment. I have the opportunity of reading that judgment of his, of which the important passages I have cited above and it is clear to me that the learned judge took great pain in producing the judgment. The learned judge supported his decision with the evidence before him. The learned judge had also cited the relevant laws and the authorities to support his judgment. |
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It is clear to me that the learned judge had committed very limited error if at all. I could not find any merit in the submissions of the appellant/respondent in defaulting the judgment of the learned judge. Though the learned judge had repeated himself in respect of some of the evidence that appears to be his style of emphasizing the point. |
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For the above reasons, we could not find any merit in the appeal, and we dismissed the appeal with costs. The order of the learned judge is hereby affirmed. The deposit, if any, is to the account of taxed costs. [emphasis added] |
QUESTIONS OF LAW
On 6 November 2006 this court granted the appellant leave to appeal on the following questions:
whether the board members (the appellant) who make an order under s. 15(1) of the Act must comprise of the same board members (the appellant) who have directly heard oral evidence?
whether the Act requires the appellant to follow adversarial system of justice?
whether the appellant can act under s. 15(1) of the Act without a complaint or complainant?
was the learned High Court judge correct in concluding that the appellant's decision in the disciplinary proceedings against the respondent were tainted or rendered bad in view of the presence and/or participation of the board's secretary and/or its legal adviser at one or more meetings where the respondent's case was discussed.
PROCEEDINGS IN THE FEDERAL COURT
Before us, learned counsel for the respondent brought to our attention of the recent amendments to the Act, the Registration of Engineers (Amendment) Act 2007, which came into force on 1 April 2007 vide PU(B) 102/2007. The amendment introduced Part IIIA for the establishment of a Disciplinary Committee through ss. 14A, 14B and 14C. The sections have set out the composition and powers of the Disciplinary Committee and how its proceedings should be carried out. Section 15 as it existed then has been amended to remove all references to the appellant and to substitute the same with that of 'Disciplinary Committee'. Section 24B(2A) prohibits a member of the Investigation Committee from being a member of the Disciplinary Committee. Such being the case, learned counsel contends that the amendments have essentially answered all the questions framed by the appellant and therefore the issues raised have been rendered academic and hypothetical.
With respect, I do not agree. The above amendments are not expressed to have retrospective effect. The amendments came into effect on 1 April 2007 well after the date of hearing on 9 August 1999 and 13 July 2000 when the respondent's registration as a professional engineer was cancelled. As such, the amendments are not applicable to the present case (see Keith Sellar v Lee Kwang [1980] 1 LNS 36; [1980] 2 MLJ 191) and the case must therefore be resolved according to the provisions of the Act prevailing as at 9 August 1999.
With regard to the questions, I would answer them in numerical order rather than in the order of Questions (2), (4), (3) and (1) as submitted by the appellant.
QUESTION (1)
This question arose from the interpretation of s. 15 of the Act when the Court of Appeal affirmed the High Court judgment which held that the 2/3 of the appellant members must be the same persons who attended the hearing (9 August 1999) and the deliberation (11 April 2000) as well as the decision (13 July 2000). Section 15 states:
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15. |
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It is worthy of note that the quorum of 2/3 of the total number of members of the appellant is 12.
Learned counsel for the appellant submitted that:
The requirement for the 2/3 of the appellant members to be present is limited to the hearing under s. 15(2).
There is no requirement for the members of the appellant who make the order under s. 15(1) to be the same members who heard under s. 15(2).
Learned counsel further submitted that s. 15(2) had been complied with by the appellant by the presence of more than 2/3 of the total number of the appellant members during the hearing on 9 August 1999 when the respondent and his witnesses gave their evidence.
In response, learned counsel for the respondent reaffirmed the proposition of law laid down by the learned judge of the High Court that it is contrary to natural justice and procedural fairness for decision makers to be made up of different persons at different times and relied on Fulker v Fulker [1936] 3 All ER 636 in support. In that case, the Divisional Court set aside an order made by justices on the basis inter alia that the order could not be upheld because it was based on evidence which had never been heard viva voce by two of the justices. Langton J at p 640 remarked:
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It was most important that all the justices adjudicating upon the evidence on which they were to make their findings should hear that evidence and not have it communicated to them through the medium of justices' clerk's note. |
Another authority relied upon by the respondent was Mohan Rajadurai v Majlis Perubatan Malaysia [1998] 1 CLJ 903 where Abdul Kadir Sulaiman J (as he then was) at p 914 said:
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Under the circumstances it cannot be said that the decision made by the respondent is correct in law because notwithstanding that the proceedings were recorded on audio tapes for the benefit of those who were not present during certain days of the proceedings they would merely be listening to the recorded voices of those who took part throughout but they were precluded from having the opportunity of seeing for themselves the demeanour of each of the witnesses when giving their evidence. |
There is much merit in the appellant's submission. A purposive construction of s. 15 of the Act indicates that there is no qualification for the members who can decide under s. 15(1). The Act vests the power of making an order for cancellation or suspension of registration of engineers under the subsection on the appellant as a body corporate as opposed to specific individuals.
In Lim Ko v Board of Architects [1965] 1 LNS 96; [1966] 2 MLJ 80 the appellants Lim Ko and Wong Chee Leong had been found guilty of unprofessional conduct in that (a) Lim Ko had signed for the purposes of submitting for approval drawings made or under the supervision of Wong Chee Leong and (b) Wong Chee Leong had been a party to securing the signature of Lim Ko on the plans and had shared fees with him. An appeal to the High Court was dismissed ([1965] 1 LNS 96) and the appellants appealed to the Federal Court. On appeal it was argued, inter alia, that there were irregularities in the composition of the committee of inquiry which heard the complaint in this case in that they were differently constituted for the hearings and the chairman did not preside over the meeting. In dismissing the appeal Barakbah CJ (Malaya) (as he then was) remarked:
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It is a cardinal fact to remember that the board of architects is a domestic tribunal, whose proceedings are not subject to the same degree of close scrutiny for irregularities which, in the ordinary courts of law, may suffice to prove fatal to the validity of its decision. .... what is more important is not the form but the substance. |
H.T. Ong FJ in his separate judgment at p 94 said:
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.... It was argued that the so-called committee was differently constituted on the two occasions it met, that is to say, Mr. Eric Taylor on August 24 replaced an absentee member of the original body of five which sat on July 6. I do not think that there is any substance in this argument so long as this domestic tribunal in the conduct of its proceedings had not violated any principle of natural justice. I would repeat what had been said earlier, that the proceedings of domestic tribunals conducting an inquiry are by no means bound by the strict rules which apply to criminal trials. In this connection I would quote from the judgment of Tucker LJ in Russell v Duke of Norfolk:
[emphasis added] |
The case of Lim Ko was brought to the attention of the High Court and the Court of Appeal must have seen it in the judgment of the High Court. But unfortunately, the learned High Court judge had erroneously held that the Federal Court decision had no binding effect on him (see pp 318-322 of the appeal record). It is true that Lim Ko dealt with the disciplinary proceedings involving the profession of architects under the Architects Ordinance 1951 but it affirmed the principle that the proceedings of statutory tribunals conducting an inquiry are by no means bound by the strict rules which apply to criminal trials.
In addition to the above principle, the Federal Court in Lim Ko also regarded as relevant the fact that minutes of the board of inquiry had been circulated to all board members. (see p 94 of the report).
In the present case, more than 2/3 of the total number of appellant members attended the three occasions: 14 on 9 August 1999 hearing, 13 on 11 April 2000 deliberation and 15 on 13 July 2000 decision. And a substantial number, i.e., 12 of those who attended on the decision date had earlier attended during the oral hearing. The 12 appellant members who had attended the oral hearing on 9 August 1999 were the ones who made the decisions to find the respondent guilty of the four charges and to cancel his registration as a professional engineer. The 12 members were unanimous in their decisions (see pp 498-499 and 533 of the appeal record). It is thus clear that there was no violation of the principles of natural justice in this case in any substantial respect because the decisions against the respondent were in fact made by the appellant members who heard the evidence on 9 August 1999. Therefore, the appellant is right in its submission that the learned High Court judge misdirected himself in that he failed to give his proper consideration to these undisputed facts.
The complaint that Ir. Ahmad Zaidee Laidin had attended part of the hearing on 9 August 1999 and as such he had forfeited his right to participate in the subsequent deliberation and decision-making, is erroneous as Ir Ahmad Zaidee Laidin was entitled as a member of the appellant to participate in the deliberation and the decision-making. Moreover, he, as a appellant member, had full access to the tapes and notes of transcript and surely this was relevant to negate any prejudice to the respondent. More importantly, even without including him, the 2/3 quorum had been satisfied.
With regard to the cases of Fulker and Mohan Rajadurai cited earlier by the respondent, I do not think they are quite applicable. The legal proposition in the former only applies to the courts of law. It does not apply to statutory tribunals, such as in our case here. Whereas in Mohan Rajadurai, the legal proposition quoted above is contrary to the legal principles established by the Federal Court in Lim Ko, and as such, it should not be followed.
My answer to Question (1) is therefore in the negative.
QUESTION (2)
On Question (2), the appellant is right that both the Court of Appeal and the High Court were erroneous in holding that the rules of natural justice or procedural fairness required the hearing under s. 15(2) of the Act to be governed by the adversarial system of justice and follow procedure with features of criminal court proceedings and not by an inquisitorial or investigatory proceedings. These are some of the legal propositions which the High Court judge erroneously made in his judgment:
At p 112 of the appeal record:
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I am of the opinion that the disciplinary action is governed by the adversarial system of justice and that the principles of natural justice and procedural fairness are to equally apply. |
At p 109 of the appeal record:
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The applicant (the respondent) had very clearly in para 15 Encl. 5 of the applicant's affidavit stated that in the case of disciplinary hearing under the Malaysian System of Justice the process is an adversarial and not an inquisitorial and that the Board had conducted the hearing in an inquisitorial manner. I am of the opinion the concept "the Board's function at disciplinary hearing is investigatory in nature" and that "it is not adversarial or inquisitorial" is totally anathema in Malaysian legal jurisprudence and it smacks of powers given only in a police state. |
At pp 123-124 of the appeal record:
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It is fundamental that wrong is not presumed. The Latin maxim "injuria non praesumitur" sets out the point that just as in criminal matters guilt is never presumed, so in civil cases no one is presumed to have done a wrong or injurious act. It must be proved by him who complains of it. I think the respondent's (the appellant's) submission that it need not adduce any evidence at the hearing as there was no requirement for any form of procedure to be followed, runs contrary to this maxim. .... the respondent (the appellant) did not at any time give any explanation on the burden of proof, the standard of proof, and as to who was to bear the burden. .... it was wrong for the respondent (the appellant) to state that the "report and the charges stand by themselves" as for a charge to be established the Board must adduce evidence to prove the charge. The failure to do so will mean that the charges had not been proven beyond reasonable doubt, i.e., the Board has not got any benefit of presumption in law. |
At p 129 of the appeal record:
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.... the respondent (the appellant) had not proffered any evidence in support of the charges. |
Further, the learned judge also held that the respondent had an inalienable fundamental right to cross-examine the complainant which he read into s. 15(2) of the Act as the meaning of opportunity to be heard when he said at p 117 of the appeal record:
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Section 15(2)(b) clearly spells out that an opportunity to be heard must be given to the registered engineer against whom the Board intends to make the order. I am of the opinion that the opportunity to be heard would mean that the (engineer) had an inalienable fundamental right to question the person who has complained against him as a professional .... |
The above legal propositions of the learned judge are flawed. They are in direct contrast with a long line of established Supreme Court, Federal Court and Court of Appeal authorities that hold that every administrative body is the master of its own procedure and need not assume the trappings of a court. The rules of natural justice do not contain any inalienable fundamental right to cross-examination of a witness, including the complainant (see Disciplinary Tribunals by JRS Forbes 1990 pp 115-121; University of Ceylon v E F.W Fernando [1960] 1 WLR (PC) p 235). The rules of natural justice are variable and do not mean adversarial procedures of a court of law or analogous to a court of law.
In Lim Ko, Pike CJ (Borneo) said at p 85:
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Clearly the form and the substance of the enquiry must be looked at closely to see whether in any substantial respect there could be said to be a denial of natural justice. But it must not be looked at as would the proceedings of a court and cases which relate to the standards expected of courts of justice are not in my opinion in point in consideration the nature of an enquiry into a disciplinary breach by a member of a professional body by fellow members. |
At p 87 he continued:
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In considering the proceedings of a domestic tribunal of this sort a legalistic approach is not appropriate .... |
At p 94 H.T. Ong FJ said:
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I would repeat what had been said earlier, that the proceedings of domestic tribunals conducting an inquiry are by no means bound by the strict rules which apply to criminal trials. |
In Tan Hee Lock v Commissioner for Federal Capital [1973] 1 LNS 152, Gill FJ (as he then was) delivering the judgment of the then Federal Court said:
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It is clear from the authorities that natural justice does not mean that a person performing an administrative or ministerial act must follow the procedure of a court of law or adopt procedure analogous to that of a court of law. |
In the Federal Court case of Tanjong Jaga Sdn Bhd v Minister of Labour and Manpower [1987] 2 CLJ 119; [1987] CLJ (Rep) 368, Abdoolcader SCJ said:
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On the matter of natural justice and the right to a hearing, the fundamental proposition about the content of the audi alteram partem rule has been stated time and again: it is variable. The rules are not inflexible principles and may vary in their content in the circumstances of the case and in their ambit in the context of their application. |
In the Court of Appeal case of Ali Othman v Telekom Malaysia Bhd [2003] 3 CLJ 310, Gopal Sri Ram JCA, adopted the view expressed by L' Heureux-Duke' J in the Supreme Court of Canada in The Board of Education of the Indian Head School v Knight:
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It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adopted to their needs and fair. [emphasis added] |
In addition to the above, our courts have not laid down any principle that the rules of natural justice or procedural fairness contain any inalienable fundamental right. The Federal Court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105 has resisted the elevation of natural justice or procedural fairness to constitutional rights that cannot be excluded.
Indeed, I agree with the appellant that the judicial resistance against the imposition of formal court procedure or adversarial procedure was applied by the Federal Court in Lim Ko in the context of hearings of a disciplinary nature where the governing statute in that case, the Architects Ordinance 1951, was silent as to the procedure to be adopted and gave the board of architects a general discretion to regulate its own procedure, as in our case. Thus following the authority of Lim Ko, the appellant is entitled to conduct the hearing required under s. 15(2) of the Act in whatever way it deems appropriate provided that the method of proceedings it adopts is not in breach of any specific provision of the Act and does not result in a denial of natural justice to the engineer involved. In considering whether there is any denial of natural justice, the court is to look at the form and the substance of the hearing conducted by the appellant closely to see whether in any substantial respect there could be said to be a denial of natural justice, but the appellant's proceedings must not be looked at as would the proceedings of a court of law. What is more important is not the form but the substance. The procedural breach is insufficient to give an applicant a remedy in the court unless there is something of substance that had been lost resulting from the breach. The applicant must have suffered prejudice as a result of the breach of natural justice. (See Tanjong Jaga, supra). Therefore, the mode of procedure adopted by the appellant in the exercise of the general discretion given to the appellant under para 2(5) of the Schedule to the Act (".... the board shall determine its own procedure ....") substantially complied with the requirements of the rules of natural justice and hence no prejudice suffered in the circumstances of the present case.
It is thus clear from the foregoing authorities that the disciplinary proceedings under s. 15(2) of the Act are not adversarial proceedings. They are inquisitorial or investigatory proceedings and they are not inconsistent with the rules of natural justice (see Jones v Welsh Rugby Union (The Times, 6 January 1998)). In such proceedings, questions such as burden of proof, calling of witnesses or the need to explain the procedure do not arise in the same way in which they would in proceedings between parties in a suit, for such proceedings do not involve two opposing parties or adversaries before an independent adjudicator. In the instant case, the Act gave the appellant wide powers to regulate the engineering profession, and in doing so, to play an active role in initiating, prosecuting and making a decision in disciplinary proceedings and by virtue of para 2(5) of the Schedule to the Act these powers cannot be delegated. Therefore, the allegation of bias on the appellant's part just because the appellant had acted as accuser and prosecutor and judge is untenable.
Thus, my answer to Question (2) is in the negative.
QUESTION (3)
The Court of Appeal affirmed the High Court judgment which decided that the appellant had acted beyond its permissible lawful limits by deciding that it was empowered under s. 15 of the Act to make a decision or order against the respondent without producing a complainant at the hearing on 9 August 1999.
Clearly, the Act does not expressly require a complaint or complainant for the appellant to exercise its powers under s. 15 of the Act and that the appellant may act on its own volition without the need for a formal complaint to be lodged or a complainant to prosecute an errant engineer. Any requirement on complaint would limit the appellant's ability to regulate the engineering profession as stated in s. 4(1)(f) of the Act.
In Lim Ko, supra, the Federal Court had clearly recognized that the Board of Architects was not required to disclose any complaint or complainant to the architect concerned, nor was it required to produce the complainant at the hearing. Pike C.J (Borneo) said at p 86:
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With regard to the non-disclosure of the names of architects who had complained or made a report to the board I am of opinion that the board were entitled to refuse to make such a disclosure .... It is to be expected that such a board will receive reports from its members and if those reports may not be, and are not, regarded as confidential it is certain that the board would no longer receive them .... The board is a domestic body concerned with domestic affairs of the architect's profession and it has a right to have regard to the interests of the profession as a whole in deciding whether or not information received by it and the source of that information should be disclosed to one of its members. |
Quite apart from Lim Ko, the English courts have also recognized that a disciplinary proceedings may be undertaken without any complaint in the normal sense of the word, for example following publication of a press report coming to the attention of the regulator (see Disciplinary and Regulatory Proceedings, 3rd edn. Brian Harris QC p 101) or the regulator could proceed mero motu (Leeson v General Council of Medical Education and Registration [1890] Ch. D 366 (CA)).
In any event, there was already indirectly a complaint or factual basis for the appellant to initiate action against the respondent in the findings of the TSC and AHC reports. The respondent was given copies of the said reports and had knowledge of what was complained or alleged against him, and was given the opportunity to contradict the same. Besides, the respondent had the benefit of a full hearing on 9 August 1999 at which he was represented by two counsel. On the facts, no prejudice in substance had been caused to the respondent by the absence of a complaint or complainant. Such absence did not produce any procedural unfairness or a breach of natural justice as the respondent was given the opportunity to contradict it at the hearing (see Deputy Chief Police Officer of Perak v Ramesh Thangaraju [2001] 1 CLJ 245 held 2).
In this case, it is clear from the facts that the decision of the appellant would not have been different had there been a complaint or complainant. This is because the appellant's decision was based on the respondent's admissions and findings on the two important matters, i.e., under design and lack of supervision.
Therefore, the answer to Question (3) is in the affirmative.
QUESTION (4)
This question arose as a result of the findings of the learned High Court judge who held that:
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(1) |
there was a breach of natural justice or it was totally repugnant to natural justice and there was real likelihood of bias or actual bias on the part of the appellant for the appellant's secretary Ir. Judin bin Abdul Karim to be present and or participate at the oral hearing or meetings where the respondent's case was discussed or decided; and |
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(2) |
there was a breach of natural justice in relation to the legal advice rendered by the appellant's legal adviser which was allegedly not disclosed to the respondent. |
The Court of Appeal affirmed the findings.
Before us, the respondent argued that the question was in fact a question of fact which was decided by the High Court and upheld by the Court of Appeal and this finding ought not to be disturbed. The learned High Court judge was therefore right in his finding that there was indeed a real likelihood of bias in light of the actions and participation of the appellant's secretary and the legal adviser at the deliberation and at the hearing. That was what had tainted the decision of the appellant, not so much their mere presence and cited R v Birmingham City Justice, ex parte Chris Foreign Foods (Wholesaler) Ltd [1970] 3 All ER 945 and B. Surinder Singh Kanda v Government of the Federation of Malaya [1962] 1 LNS 14 in support.
I can find no substance in the respondent's argument. The framed question is a valid question as it involves a principle of importance upon which a decision of the Federal Court would be to public advantage.
THE PRESENCE OF THE SECRETARY
With regard to the learned judge's findings of bias on the appellant by the presence and participation of the secretary at the hearing, the learned judge was clearly in error when he failed to take into account the material fact that the respondent not only consented to the appellant's secretary, Ir. Dr. Judin bin Abdul Karim, asking questions (p 988 of the appeal record), the respondent's counsel himself invited the secretary to ask questions ("V (counsel): Dr. Judin, I don't know whether you want to ask anything?" p 993 of the appeal record). The respondent and his counsel did not at any time take any objection whatsoever to the presence or participation of the secretary or to the line of questioning or the comments made by him. Thus, the respondent by his or his counsel's conduct and their failure to object consented or acquiesced to the presence and participation of the secretary in the disciplinary proceedings. The respondent had therefore waived any right to object to any irregularity in the proceedings by virtue of the presence or participation of the secretary. (see Najar Singh v Government of Malaysia [1974] 1 LNS 101 (FC) at p 141; University of Ceylon v E.F.W. Fernando [1960] 1 WLR 223 (PC) at p 235).
In the present case, the proceedings that took place before the appellant was not repugnant to natural justice. Neither was there a real danger of bias (being the correct test - as opposed to real likelihood of bias or actual bias as held by the learned High Court judge, see Tan Heng Chew v Tan Kim Hor [2006] 1 CLJ 577 FC) had taken place. The questions put by the secretary and answers given by the respondent's expert witness, Prof. Ang, must be appreciated in the context of the respondent's admission to under design and the lack of his proper supervision of the construction works on site.
It is noted that the English case of Birmingham City cited by the respondent was wrongly applied by the learned judge. In that case, the justice (the decision-maker) retired together with the chief veterinary officer, the person who was pursuing the case against the applicants, and a public analyst, a person who gave evidence, with the expressed intention of taking advice from them. It was held that the retirement of the justice in the company of two officials in order to take advice and the return of all three persons just prior to his decision amounted to a breach of natural justice since he did not inform the applicants of the advice tendered and give them an opportunity to counter it.
In Tan Hee Lock, supra, the Federal Court limited the application of the case of Birmingham City to a situation where the decision-maker consulted a party to the proceedings or a witness. In our case, the secretary was not a party to the proceedings or a witness as was the case in Birmingham City. The secretary queried the respondent's witness, Prof. Ang in the open proceedings and in the presence of the respondent and his counsel on 9 August 1999. Further, the secretary only attended the meetings on 11 April 2000 and 13 July 2000 as the secretary, an ex-officio member of the appellant. He did not participate in the decision-making of the matter against the respondent. In any event, anything that the secretary might have said to the appellant would not have been material and would not have caused the respondent any prejudice because the respondent had made the two incriminating admissions of facts. Be that as it may, the allegation of bias should be that of the decision-maker and not a person who was not a party or a witness to the proceedings. Since the secretary was not a party or a witness to the proceedings decided by the appellant, the appellant was therefore not guilty of any bias.
THE PRESENCE OF THE LEGAL ADVISER
With regard to the presence and participation of the legal adviser, Mr. Yatiswara Ramachandran, in the appellant's proceedings, the learned High Court judge erred in law and in fact in concluding that there was a breach of natural justice in relation to the legal advice rendered by him to the appellant which was allegedly not disclosed to the respondent.
Clearly, in this case, there was no breach of natural justice for the appellant to confer with its legal adviser (Tan Hee Lock, supra). However, there was one legal advice given to the appellant that related to the existence of a complaint which was raised by the respondent in its written submission. But this advice was disclosed in the appellant's letter dated 12 May 2000 (p 1109 of the appeal record) when the appellant stated:
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.... The existence of a complaint from the City Council is not relevant to the validity of the charges against Ir. Leong. The Board has the powers under, inter alia, sections 4(1)(f) and 15 of the Registration of Engineers Act 1967 to carry out investigations into the professional conduct of engineers to ensure compliance with the Registration of Engineers Act 1967 and the regulation thereunder even in the absence of complaints. Thus, on the facts, the respondent had not been prejudiced because the respondent was in fact given the opportunity to present further written submissions on the preliminary issue relating to complaint after the appellant had heard advice from its legal adviser on the matter, and the appellant considered the further submission of the respondent before making a decision. Apart from that advice, there was no other legal advice on new point that had been considered that need to be disclosed by the appellant to the respondent. (See R v Secretary of State for Education and Science Ex-Parte S [1995] ELR 71 (CA)). |
The case of B. Surinder Singh Kanda, supra, referred to by the respondent is not quite relevant to our case. In that case, the report that had not been disclosed to the appellant in that case contained evidence and findings of facts that constituted the heart of the charges against the appellant. Whereas in our case, the material that is subject of the alleged non-disclosure is legal advice that related to a submission of law that had been raised by the respondent in written submission, and not evidence or findings on facts.
In any event, the respondent had waived any right to object to any advice given by the appellant's legal adviser. The respondent did not object to the legal adviser's presence or role during the oral hearing. In fact, the respondent's counsel was fully aware and even acknowledged that the appellant may take advice from the legal adviser (p 1002 of the appeal record).
Thus, for the above reasons, the learned High Court judge was erroneous in concluding that the appellant's decision against the respondent were tainted or rendered bad in law by virtue of the presence and or participation of the appellant's secretary and legal adviser in the proceedings.
Therefore, my answer to Question (4) is in the negative.
CONCLUSION
All the four questions of law have been answered at the end of each question in numerical order. Accordingly, I allow the appeal with costs. The orders of the High Court and the Court of Appeal are hereby set aside. The order of the appellant, made on 13 July 2000, is upheld. The deposit shall be refunded to the appellant.
The learned President of the Court of Appeal and the learned Chief Judge (Malaya) have read this judgment in draft and have expressed their agreement with it.
Cases
B Surinder Singh Kanda v Government of the Federation of Malaya [1962] 1 LNS 14
Tan Heng Chew v Tan Kim Hor [2006] 1 CLJ 577 FC
Deputy Chief Police Officer of Perak v Ramesh Thangaraju [2001] 1 CLJ 245 CA
Fulker v Fulker [1936] 3 All ER 636
Ali Othman v Telekom Malaysia Bhd [2003] 3 CLJ 310 CA
Keith Sellar v Lee Kwang [1980] 1 LNS 36
Leeson v General Council of Medical Education and Registration [1890] Ch D 366
Lembaga Jurutera Malaysia v Leong Pui Kun [2008] 2 CLJ 466 CA
Lim Ko v Board of Architects [1965] 1 LNS 96; [1966] 2 MLJ 80
Mohan Rajadurai v Majlis Perubatan Malaysia [1998] 1 CLJ 903 HC
Najar Singh v Government of Malaysia [1974] 1 LNS 101
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105 FC
R v Birmingham City Justice, ex parte Chris Foreign Foods (Wholesaler) Ltd [1970] 3 All ER 945
R v Secretary of State for Education and Science Ex-Parte S [1995] ELR 71
Tan Hee Lock v Commissioner for Federal Capital [1973] 1 LNS 152
Tanjong Jaga Sdn Bhd v The Minister Of Labour & Manpower [1987] 2 CLJ 119; [1987] CLJ (Rep) 368 SC
University of Ceylon v EFW Fernando [1960] 1 WLR 223
Legislations
Registration of Engineers Act 1967: s. 3, s.4, s.14A, s.14B, s.14C, s.15, s.24B
Registration of Engineers (Amendment) Act 2007: s. 9, s.15
Rules of the High Court 1980: Ord. 53
Authors and other references
Brian Harris QC, Disciplinary and Regulatory Proceedings, 3rd edn
JRS Forbes, Disciplinary Tribunals, 1990
Representations
Rajendran Navaratnam & A.L. Chu & E.P. Eow with him (M/s Azman, Davidson & Co) for the appellant
W.V. Lye & H.L. Yap with him (M/s Lye & Yap) for the respondents.
Notes:-
This decision is also reported at [2008] 5 AMR 189.
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