HIGH COURT OF MALAYA
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www.ipsofactoJ.com/highcourt/index.htm [2003] Part 2 Case 15 [HCM] |
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HIGH COURT OF MALAYA |
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Leong - vs - The Board of Engineers |
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FAIZA TAMBY CHIK J |
27 SEPTEMBER 2002 |
Judgment
Faiza Tamby Chik, J
This case has arisen as a result of a decision of the Board of Engineers, Malaysia ("the Board") pursuant to a hearing on August 9, 1999 under s 15(2) of the Registration of Engineers Act 1967 ("the Engineers Act 1967) where in the Board found the applicant guilty of four of the five charges.
The Board had via their letter dated October 9, 2000 ordered the cancellation of the applicant's registration as a professional engineer with the Board effective from October 9, 2000. The applicant was at all material times, a professional engineer registered with the Board and had practiced under the style and name of "PKKL Partners Sdn Bhd". The applicant had received a show cause letter dated November 11, 1998 from the Board informing him that pursuant to a complaint it had allegedly received from Majlis Perbandaran Shah Alam (MPSA) regarding the collapse of the Linkway Bridge at Matsushita Television Co Sdn Bhd, Shah Alam and following investigation conducted by the Board, the Board had decided to hold a hearing under s 15(2) of the Engineers Act 1967.
The Tribunal hearing took place on the August 9, 1999 in spite of various preliminary objections on inter alia matters of jurisdiction and ultra vires. The applicant had on October 1, 1999 sent in its written submissions which included the preliminary objections made to the Board on the hearing of August 9, 1999. The applicant had specifically pointed out that contrary to the charge sheet and the insistence by the chairman of the tribunal that it had been established at the hearing that MPSA did not complain at all to the Board of Engineers. The Board vide it's letter dated May 15, 2000 pointed out that it was their position that they had powers under inter alia s 4(1)(f) and 15 of the Engineers Act 1967 to carry out investigation into professional conduct of engineers to ensure compliance with the Engineers Act 1967 even in the absence of complaints. The applicant then further submitted on this issue and reminded the Board that the entire hearing had proceeded on the basis that there was a complainant and that there must be due observation of procedural fairness. The applicant emphasized that it was not open to the Board to interpret the Engineers Act 1967 as they had, the effect of which is to contravene the constitution which by Article 8(1) and 5(1) of the Constitution guarantees that there must be due observation of professional fairness.
The Board on October 9, 2000 issued an order pursuant to s 15(1) cancelling the applicant's registration as a professional engineer with the Board of Engineers and the applicant may within 21 days of the said notification appeal to the Board against the Board's decision. However, the applicant was subsequently informed by the Board vide a letter dated October 10, 2000 that the Board had sent the applicant's deregistration for gazetting on the July 13, 1999, some three months before the order was made.
The applicant being dissatisfied with the order now seeks an order of certiorari to quash the order issued by the Board of Engineers vide their letter dated October 9, 2000 and for an order of mandamus that the Board reinstates the applicant as a professional engineer with the Board and for damages under the new Ord. 53 of the Rules of the High Court 1980.
Full particulars of the applicant's case are set out in the statement pursuant to Ord. 53 r 3(2) of the Rules of the High Court (Amendment) 2000. The applicant's case in brief is set out as follows:
That the Board of Engineers, Malaysia had acted ultra vires by issuing the order cancelling the registration of the applicant on the October 9, 2000 when it was improperly and/or not properly constituted, and/or was not empowered to do so in accordance with the Engineers Act 1967;
That the proceedings before the Board of Engineers were contrary to the principles of natural justice and/or procedural fairness and Articles 8(1) and 5(1) of the Federal Constitution owing to inter alia the following;
the failure of the respondent to distinguish it's quasi judicial role as a tribunal from the respondent's earlier investigatorial role;
the respondent's open admission that the respondent's function is investigatorial in nature at the hearing and not adversarial and/or inquisitorial necessarily means that the respondent had not approached the issues before it openly and fairly;
the presence of members of the Board who had not heard the viva voce evidence and also non-members of the Board during the tribunal's deliberations leading to the decision;
the participation of a non-member of the tribunal namely the Secretary of the Board, one Dr Judin Abdul Karim during the tribunal's deliberations leading to the decision;
the presence and participation of the legal advisor one Yatiswara Ramachandran during the deliberations leading to the decision.
The applicant had vide their letter dated October 30, 2000 (see paragraph 9 of the applicant's first affidavit (Encl. 5) Exh "LPK-9") requested for the following information:
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Dear Sirs Deregistration as Professional Engineer Mr. Leong Pui Kun We are instructed by our clients to further request the following information from the Board:
We shall be obliged if you could give us the aforesaid information within ten (10) days from the date thereof. |
The respondent did not reply within the ten days
and it was only after the applicant had filed his affidavit-in-support that
he received a reply from the Board dated November
20, 2000, three weeks later (see paragraph 3 of the
applicant's further affidavit (Encl. 5) Exh "LPK-16").
The reply is as follows:
Dear Sir, Deregistration
as Professional Engineer - Mr. Leong Pui Kun With reference to the above matter, the Board would like
to clarify that the hearing was held on 9.8.1999 and
not 8.8.1999 as in the Board's letter dated 9.10.2000.
Further the board was referring to evidence dated
23.5.2000 submitted by your good selves and not 25.3.2000 as stated in the said
letter. As requested, please find herewith attendance list for
hearing held on 9.8.1999 and meeting held on 11.3.2000.
Further we also append herewith ground of decision
leading to the deregistration of Mr. Leong Pui Kun. It is hoped that the above would meet your request. ....
It is clear from the above correspondence that the respondent had confirmed that the decision was made on April 11, 2000 and had also included the attendance list of the persons involved in the deliberations resulting in the finding that Mr. Leong Pui Kun was guilty of the charges one to four and not guilty of charge five.
The applicant in his further affidavit (Encl. 5) pointed out inter alia in paragraph 4 that the qualified members on April 11, 2000 did not meet the prescribed two-thirds quorum requirement. In paragraphs 7 and 8 the applicant also pointed out that in making its decision on April 11, 2000 the respondent had acted ultra vires as the decision was made before the respondent received the applicant's further submissions.
The respondent having being confronted with the aforesaid paragraphs 4, 7 and 8 for the first time discloses to the applicant in paragraph 26 of the respondent's affidavit (Encl. 7) that there was another meeting to make a decision on the applicant's case on July 13, 2000. The applicant in paragraph 16 to 19 of the applicant's affidavit-in-reply (Encl. 8) had dearly set out that the letters were specific and that the Board had not acted bona fide. The respondent does no more than to apologize to this court for an "unintentional" mistake on the dates. The Board of Engineers is a statutory board staffed by the professional and aided by legal advisors. It is totally unbecoming of the respondent to be so dismissive of the applicant's averments as "being unreasonable and without any basis" when in the first place the averments were based on the respondent's reply to a very specific question (see paragraph 16 of the respondent's affidavit-in-reply (Encl. 9)). It is observed that the applicant has shown that this "unintentional mistake" is not the only one admitted to by the respondent in its affidavits.
It is the applicant's case that the order is ultra vires for first non-compliance with the Engineers Act 1967 and also for breach of the rules of natural justice and/or procedural fairness. It should be pointed out at the outset that the respondent had taken a position that it's role in the hearing was "investigatory" and not adversarial or inquisitorial. The respondent had relied on its interpretation of ss 4(1)(f) and 15(1) of the Engineers Act 1967 for its "investigatory" position in the hearing. I think this "thinking" is anathema in Malaysian legal jurisprudence let alone contrary to Articles 8(1) and 5(1) of the Federal Constitution and it is this line of "thinking" that has led the respondent to conduct its hearing contrary to the rules of natural justice and procedural fairness. The applicant had alleged in his affidavit that there was a total lack of candour and bias on the part of the respondent in its conduct and also in its affidavit-in-reply and as the respondent had put the applicant to strict proof.
Section 15(2) of the Engineers Act 1967 clearly sets out that the Board shall not made any order suspending or cancelling the registration of any engineer unless there has been a hearing at which at least two-thirds of the total number of members of the Board are present. The total number of gazetted members of the Board at the material time is 17 and two-thirds of this would mean a minimum of 12 members (see paragraphs 10, 11 and 12 of the applicant's affidavit (Encl. 8)). It is the applicant's case that the respondent had not complied with the statutory provision as there were only nine persons who were qualified to make the decision. These nine qualified persons are those who had attended the hearing on August 9, 1999 in full and also who had attended the deliberations on April 11, 2000 and July 13, 2000. This is shown by the attendance table set out in paragraph 11 of the applicant's affidavit-in-reply (Encl. 8). The attendance table is not disputed by the respondent (see paragraph 12 of the respondent's affidavit (Encl. 9)).
It is noted that the applicant has accepted that Mr. Yatiswara Ramachandran, the legal advisor, was not present on July 13, 2000. It must be pointed out that whilst a member of the tribunal Dato' Ir. Hj Ahmad Zaidee Laidin had attended part of the hearing on August 9, 1999 in the morning, the applicant contends that Dato' Ir. Hj Ahmad Zaidee Laidin had forfeited his right to participate in further deliberations and the decision-making. He had left the hearing before lunch and did not return at all to the hearing which lasted up to the late afternoon and further did not attend the deliberations on April 11, 2000.
It must be emphasized that the respondent had categorically stated that it had relied primarily on the evidence of one Professor Ang Thien Cheong (see paragraphs 18(c) and 21(d) of the respondent's affidavit (Encl. 6)) and the same was given in the absence of Dato' Ir. Hj Ahmad Zaidee Laidin. The respondent had put forth an argument that by virtue of s 3(1) of the Act, it is irrelevant as to who among the Board members attended on all three days meetings, and it is also irrelevant that a member of the Board, Dato' Ir. Hj Ahmad Zaidee Laidin left the hearing earlier on August 9, 1999 as it is the respondent who hears or decides as a body under the Act. In short the composition of the respondent is "irregardless" as it is not the individual Board members who have been given power to decide under the Act.
Taking this argument to the fullest it would then be the respondent's case that after having gone through the formality of a hearing with at least two-thirds of the Board members being present it is "irregardless" if all the people who heard the case were say subsequently killed in a bomb blast as it is the Board which decides as a body (corporate sole) and not the individual Board members. I am of the view that s 3(1) of the Act merely establishes the legal status of the Board as a body corporate with perpetual succession and a common seal and which may sue and be sued and it is ludicrous I think to submit that this was what Parliament intended by enacting s 3(1).
(a) QUORUM
The respondent had submitted that the quorum is 11. The total number of gazetted members of the Board at all material times is 17. The Act clearly stated at least two-thirds must be present. It is simple arithmetic that 2/3 x 17 = 11.33. The qualifying words at least i.e. a minimum. Indeed unless one of the members of the tribunal is one-third more than a normal human being the quorum must be 12. I think the respondent has no business rounding the quorum down to 11. Quite simply the maxim verbis legis non est recedendum applies viz no departure is permitted from words of a statute. Where the language of a statute is plain and unequivocal, it must be read according to its necessary meaning, and so enforced. In such circumstances, the statute is not open to the construction given by the respondent.
The respondent submits that "in any event, there were at all material times more than two-thirds of the Board present i.e. 14 on August 9, 1999, 13 on April 11, 2000 and 15 on July 13, 2000" (see p 13). This runs contrary to the earlier assertion by the respondent in paragraph 27 of the respondent's affidavit (Encl. 7) that 12 persons (as compared to 15 aforesaid) made the decision and that this met with the Board's quorum. The twelfth man was Dato' Ir. Hj Ahmad Zaidee Laidin whom the respondent says that it was irrelevant that he had left the hearing earlier. I think the respondent should not be shifting its position from one of no quorum required to that of having a quorum albeit arithmetically wrong and also to include people who did not partake in the decision-making when it feels convenient to do so. It must be stressed from the evidence given which is not disputed that only nine persons were present throughout the three dates. That being said the respondent had clearly not complied with the mandatory quorum of 12.
(b) HEARING SEPARATE FROM DECISION
The respondent had gone in length under this heading on the procedures and concluded that from the above lengthy procedure, that as a whole and at every material point in time, the Board had given the applicant a fair opportunity to be heard and submission before an impartial tribunal. I think that nothing could be further from the truth and the respondent should not be so presumptuous in its submission that there is no dispute as to the procedure as a whole adopted by the Board.
The respondent had resorted to a Latin phrase expresio unius exclusio alterius principle to say that since there is no express provision on the number of decision-makers it may be implied that the number of the decision-makers is not limited. I think the lumping of the "decision-makers" together with "hearers" for purposes of the above Latin phrase is as good as comparing apples with oranges. Taking the respondent's interpretation to its logical conclusion the number of decision-makers can be zeroed as you do not need any of the persons who heard the matter to make a decision. This being further reinforced by the respondent's earlier submissions that it was the respondent as a corporate sole which make decisions. On this point, the important maxim of delegata potestas non potest delegari comes in mind. Simply put a delegated power cannot be delegated; that is, a delegated power cannot conferred by the delegate upon another. It is trite law that all persons who are entrusted or charged with the performance of judicial functions, whether in the supreme or inferior courts, must perform these duties in person, and cannot delegate their authority to another, except in such cases and to such extent as is expressly authorised by statute or the common law.
Parliament had delegated the powers under s 15 of the Act to a quorum of at least 12 members of the Board who sit in a quasi-judicial capacity to determine the fate of the applicant. It did not expressly state anywhere that the authority of this 12 persons can be delegated to another person (let alone to a body corporate who having no eyes and ears must be blind and deaf to justice). On the contrary under item 2(5) of the Schedule, the Board's powers of delegation had been specifically excluded in relation to ss 15 and 26. I am of the opinion that it is totally wrong for the respondent to state that the Schedule to the Act further provides under item 2(5) subject to the quorum requirement under 2(3) and the casting vote of the President under 2(4), it is for the Board "to determine its own procedure" and item 2(5) provide the exceptions. The entire item 2(5) reads as follows:
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Subject to sub-paragraphs (3) and (4) of the Board shall determine its own procedure and, except in relation to sections 15 and 26. have power to delegate to committees appointed by the Board all or any of the functions of the Board upon such terms and subject to such conditions and restrictions as the Board may in its absolute discretion think fit. Any act. ruling or decision of any committee so appointed shall be deemed lo be the act, ruling or decision of the Board. |
Section 15 deals with the disciplinary hearing and s 26
deals with the Regulations (under which the applicant
had been charged with). It should also be further
pointed out that the Schedule is actually headed as follows:
"SCHEDULE
(Section 3(7))"
The margin notes on the relevant s 3 is titled as the "Establishment of Board of Engineers" and perusal of s 3 and the provisions of the Schedule will show that it concerns mainly the general administration of the Board.
The respondent had confirmed vide their letter dated December 11, 2000 (see LPK-19 of applicant's further affidavit (Encl. 5)) inter alia the following:
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3. |
For your information the Board members 1999/2000 session had expired on 22.8.2000 and the new members were appointed on 27.10.2000. The appointment is currently in process of gazetting by the Ministry. |
It is therefore clear that on October 9, 2000 when the order was issued, the Board had no members. As such, the said order cancelling the registration of the applicant was issued ultra vires and wrongfully issued by the Board when on October 9, 2000 it was improperly and not properly constituted, and was not empowered to do so in accordance with the Engineers Act 1967. No wonder it is observed that the applicant was surprised to receive a letter dated October 10, 2000 from the Board informing him that the Board had prior to the order of October 9, 2000 had sent the applicant's de-registration for gazette on July 13, 2000 (see LPK-10 of applicant's first affidavit (Encl. 5)). The said letter reads:
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Dear Sir, Deregistration as Professional Engineer - Mr. Leong Pui Kun With reference to the Board's letter dated 9 October 2000 on the above matter, kindly be informed that the deregistration has been set for gazette on 13.7.2000. .... |
The gazetting of the deregistration of the applicant was formally published in the Government gazette on August 12, 2000 (see paragraph 6(f) and Exh AMY-3 of respondent's affidavit (Encl. 7)). I am of the opinion that the gazetting of the applicant's deregistration by the respondent on August 12, 2000 was illegal as it was made prior to the order dated October 9, 2000. The respondent alleged that this order dated October 9, 2000 which the respondent called a purported order was a wrong order and submitted that the applicant's application for judicial review is therefore defective. There are absolute no merits in the respondent's preliminary objection on this issue. It is difficult to fathom what the respondent means by a purported order made by the respondent themselves dated October 9, 2000. It is observed that it is the respondent's own letter which contained the so-called "purported order". The relevant words which are as follows (see Exh LPK-8 of applicant's first affidavit (Encl. 5)):
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Dear Sir DECISION OF THE BOARD PURSUANT TO HEARING ON 8th AUGUST 1999 Please be informed that after hearing you, your witnesses, your counsel and considering the evidence submitted on 8th August 1999 and 25th March 2000, the Board finds you guilty as per the following charges 1 to 4. ....
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It should be noted that s 15(4) of the Engineers Act 1967 states that:
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Any order made by the Board under this section shall be published in the Gazette within thirty days of the making thereof. |
Since the order was made on October 9, 2000 the deregistration which was published in the Government gazette on August 12, 2000 was illegal as it contravened s 15(4) of the Engineers Act 1967. To say that the application is defective because the order dated October 9, 2000 was wrong totally flies against the exact words of the order. Moreover it must be noted herein that was the first time that the applicant ever knew that the order was wrong. I must say here that I fail to understand the thrust of the respondent's submission on this point and the references that the applicant had failed to refute the gazette notice and the alleged notice of October 9, 2000. I note that the applicant's position is very clear viz the order of October 9, 2000 is the operative order under the Engineers Act 1967 and it is an admitted fact that on October 9, 2000 the Board had no members as their terms had expired. The wordings of the order of October 9, 2000 is expressly clear and it is not open for the respondent to reply on a purported order of July 13, 2000 to now say that its order of October 9, 2000 is not the valid order. It is my observation that the applicant had only been made aware of the purported order of July 13, 2000 when he received the respondent's letter dated October 10, 2000 on October 14, 2000.
The respondent had submitted that the paramount consideration in my mind should be whether on the whole of the particular facts and circumstances of this case read in the light of the statutory framework procedural fairness had in fact been meted out to the applicant. The respondent had also submitted that in considering whether procedural fairness has been satisfied on the totality of the particular facts and circumstances of this case, the Board must be judged as laymen and not as if they were an extension or part of the court.
On the point that the Board must be judged as laymen, I must remind my self of the fact that the Board had been legally advised throughout and moreover they are not laymen but professional men. They are all professional engineers. The Board's legal advisor had attended the hearing on August 9, 1999. The respondent had not denied that the Board's legal advisor had earlier been involved in the preparation of the prosecution against the applicant (see paragraph 37 Encl. 5) and that the Board had also received legal advice after the hearing albeit without disclosure of what this was to the applicant (see paragraph 38 Encl. 5). As the respondent had asked that they be judged as laymen I had been made aware that the chairman of the Board, Dato' Ir. Hj Zaini Omar also holds legal qualifications.
The respondent has repeatedly emphasize that they had at every point in time complied with the rule of natural justice and a procedural fairness and that the tribunal was impartial. However the facts and the reality of it did not bear this out. It must be pointed out that the ad hoc committee when they interviewed the applicant did not give a copy of the technical committee report to the applicant (see Exh LPK-12 Encl. 5). The technical committee report was only given to the applicant after the applicant was charged by the respondent and even that only after the applicant's repeated requests (see Exh LPK-3 Encl. 5). How then could it be said that the ad hoc committee had given the applicant a fair opportunity to be heard when the ad hoc committee did not even disclose the findings of the technical committee report to the applicant. The ad hoc committee's silence involved a breach of natural justice because it deprived the applicant of a chance to answer the ad hoc committee on the findings of the technical committee. Also a perusal of all the charges (see Exh LPK-1 Encl. 5) will show that the charges were based on the contravention of Reg 24 of the Engineers Regulation 1967 which reads:
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A registered Engineer in his responsibility to his employer, client or the profession shall have full regard to the public interest. |
It is observed that the applicant's complaint is that it is the failure of the respondent to explain what was meant by "public interest" which restricted the applicant's ability to present his defence and this in itself was a breach of procedural fairness. Indeed Fortescue J explained it theologically in R v Cambridge Universe [1993] All ER 698:
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(T)he objection for want of notice can never got over .... Even God did not pass sentence on Adam before he was called upon to make his defence. |
I think it was an incumbent on the respondent to explain what was meant by public interest. The respondent now states that the facts clearly involve public interest as there was collapse of a Linkway bridge and death of one person and injury of five. Much as one regrets the death of the one person and injury of five I think that the respondent's decision was directed to the death of this one person and using this incident to demonstrate that the respondent acts in public interest. Whilst it is not really in place to deal with the merits of the case in this application, the repeated references to the death of one person and the injury of five others necessitates a comment. It is observed that the insistence by the respondent that the "under design was good enough to deprive the applicant of his livelihood cannot hold true in law as the applicant had contended that the "but for" test was applicable in relation to the collapse of the Linkway bridge. This, however, was totally ignored by the respondent and can be seen from the various exchanges between the applicant's counsel and the chairman on this point. The exchanges of words arc as follows:
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But the point we are trying to put across is this: 2 factors here - one is the failure at construction stage, and the other one is whether it would fail at ultimate stage. That's why ultimate stress comes in, where everybody is jumping up and down on it would it have failed ultimately. That I will submit in law, obviously is not a relevant issue. Because you are allowed to correct your error as you see it, so we are not concern at this moment on the ultimate stress. Even Prof. Ang himself is not going to talk on ultimate stress. What we are saying is that at the point of failure, that failure was not due to the design element, that is what we would want to establish, so not being due to design element, then we are saying that you cannot blame him for the collapse because of his design, that is the crust of it all. |
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C. |
If it had not collapsed now, following his design, it would have collapsed later, when the public is using it. |
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V. |
That is a possibility providing that when you go up and check you would have known whether something is not right or wrong ... |
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C. |
But he does not check because he is not in charge of supervision. |
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V. |
No, I think that is being presumptuous. Mr. Chairman, that he does not go to check? |
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C. |
That's what he's been saying. |
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V. |
No, I think that is being presumptuous. |
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C. |
Then you dispel my presumptions. |
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V. |
But the point is that why do we want to think about checking when the thing had fallen down, not because of the design? |
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C. |
The point is the design itself was not adequate. He is lucky the bridge had fallen down earlier. |
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V. |
Mr. Chairman, I think we will show. No. The design was not adequate but the design was not the cause of the failure, I think that is a very important point. |
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C. |
It would had failed naturally. Had it not failed earlier, it would have failed later. |
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V. |
I think that is very speculative I will submit on this points. In that case, I can assure you that no engineers will be safe from the Board of Engineers if you go on that line because you are asking ' if it would have failed'. If you don't think it is stretching it a bit as far as the legal duty are concerned, I don't want to at this stage perhaps after we have heard Prof. Ang and listen to his reasoning and then I think we can only .... submit. Let's listen to Prof. Ang. [p 026] |
The exchanges clearly showed that the chairman was totally disinterested in whether the collapse was due to the under design. Prof Ang on the other hand had given evidence that the collapse was not due to under design:
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V. |
So in that case am I correct to summarise to say that it is not the design, it is not PK. Leong's design which caused the bridge to collapse, because his design by itself will be able to carry the load. That is No. 1, No. 2 is that had there not been any, speculative at this stage, other reasons such as misalignment, etc. Even with the additional weight the bridge would have stayed in place, is that correct? |
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A. |
I refer to item 5 of the statement, which give the load condition No. 4 and 5, so load condition No.4 is the service loading, at the time of failure, viz. 375.9 kN, so the chord had contained of 625 so that one will be able to survive. And the additional weight of concrete will increase the axial load to 597 and give the workmanship all right you know the design would have provided the additional strength to support this load. |
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V. |
Would you agree now you have said that, this is not grossly under design? It is under design but in any event it would have been possible as the designer to go and correct whatever deficiencies the design that you provided you are able to see the deficiency in this design. Will that be correct? |
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A. |
Yes, I think. At least there is a second chance to look at it and make a check and do strengthening so that you have enough capacity. I think there is a second chance. |
Prof Ang had replied accordingly to the chairman on whether the collapse was due to the under design.
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C. |
Let me ask you another simple question. If the Linkway had not collapsed at the construction stage would it have collapsed later on? Using Ir. Leong's design? |
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A. |
OK. that's a good question. OK.. I have made a very quick calculation is that because 1220 kN which is the ultimate load, design ultimate load, and the, say that after the completion of the Linkway, the actual load comes in is not the ultimate load, is actually the unaffected load, in other words there is a safety factor of 1.4 and 1.6 which is safe, we take at 1.5. So with this not the actual force comes in so the structure will be 1220 divided by 1.5, so it is in the regime of 700 something and, another thing is that the Linkway design to 5 kN psm liveload. We know that 5 kN psm is quite a heavy loading and normally for, say residential building all these things we use only 1.5 liveload. Say with people walking at the walkway, the liveload may be between 1 to 1.5, so the full liveload would not be realised also so based on these 2 of the reduction, the walkway based on this PKKL design have a chance to actually survive. But it's another thing which is bad in the sense that there is extra concrete poured onto the bridge by some error which has added an extra 34 tons, 40 cubic metres onto the structure which lead to the immediate collapse of the bridge. [p 033] |
The evidence given by Prof Ang clearly dispels the presumption made by the chairman (an electrical engineer) and Dr Judin (who have prepared the earlier technical investigation report) that the bridge would have collapsed due to the under design and yet there is no mention of this anywhere in the grounds of decision or in the respondent's submission. This certainly contradicts the respondent's submission that the benefit of the doubt was given to the applicant. I am of the opinion that the respondent was bent on using the applicant as an example that the respondent totally ignored the evidence given by Prof Ang. The respondent had also ignored the evidence of two other witnesses, namely, Ir. Tay Yong Peng and Ir. Chooy Wei Seong. This had not been refuted by the respondent.
It cannot be correct to say that the applicant was given a proper opportunity to reply on this issue when the legal representations addressed to the respondent by their legal advisor was not make known to the applicant (never mind the fact that they had not disclosed the fact that the legal advisor was present during the meeting of April 11, 2000). It is important to note on this preliminary issue that the applicant had pointed out that in their further submissions (see Exh LPK-14 Encl 5) that the respondent in its letter of May 12, 2000 had inter alia put words in the applicant's "mouth" as the applicant (then respondent) had nowhere in pp 3 and 4 of the applicant's written submissions dated October 1, 1999 used the words "no power to conduct a hearing". It is therefore arguable that any legal advice given to the respondent by the Board's legal advisor subsequent to the applicant's further written submissions resulting in the decision of July 13, 2000 would not have taken in the applicant's views on the law as the applicant had criticized the premise upon which the respondent had based his letter of May 12, 2000. It is therefore a cogent argument that the legal representations given by the Board's legal advisor should in all fairness be given to the applicant. At p 29 the respondent had stated that the applicant had not explained what was meant by the statement that the function of the Board is adversarial and/or inquisitorial rather than investigatory. This statement had come from the choice of words used by the respondent in its affidavit (paragraph 13 Encl. 7) that the function of the Board was investigatory and not adversarial and/or inquisitorial. The applicant had very clearly in paragraph 15 Encl. 5 of the applicant's affidavit clearly stated that in the case of disciplinary hearing under the Malaysian System of Justice the process is adversarial and not inquisitorial and that the Board had concluded the hearing in an inquisitorial manner. I am of the opinion that the concept "the Board's function at disciplinary hearings 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.
In the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617 in which the Court of Appeal had held that in any hearing involving the issue of misconduct, there must be due observation of procedural fairness, and the said doctrine of procedural fairness emanates from the combined effects of Articles 8(1) and 5(1) of the Constitution. The relevant Articles in the Constitution read as follows:
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5. |
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No person shall be deprived of his life or personal liberty save in accordance with the law. |
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8. |
(1) |
All persons are equal before the law and entitled to the equal protection of the law. |
Gopal Sri Ram JCA in that case at p 1654 concluded that:
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'Life' as in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life. Of these are the right to seek and be engaged in lawful and gainful employment and to receive those benefits that our society had to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment. For the purposes of this case, it encompasses the right to continue in public service subject to removal for good cause by resort to a fair procedure. |
In the case of Hong Leong Equipment Sdn Bhd v Liew Fook Chuan [1996] 3 AMR 3181, the Court of Appeal held:
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Per Gopal Sri Rain JCA: The current approach to the judicial review of administration powers is that laid down in Rohaini Ariffin v Universiti Sains Malaysia [1989] 1 MLJ 487, namely whether procedural fairness is meted out in a particular case. Procedural fairness is part of our law because of the terms of Articles 5(1) and 8(1) of the Federal Constitution. As a general rule, procedural fairness, which includes the giving of reasons for a decision, must be extended to all cases where a fundamental liberty guaranteed by the Federal Constitution is adversely affected in consequence of a decision taken by a public decision-maker, (see pp 531C, 532B and 5361). |
Indeed, all Acts of Parliament are subject to the Federal Constitution, and it is clearly not open to interpret any statute, the effect of which is to contravene the Constitution. It was wrong for the respondent to interpret ss 4(1)(f) and 15 to the extent that their role at the hearing was "investigatory" and not adversarial. It is observed that the applicant had in their further submissions dated May 23, 2000 highlighted this to the respondent and had shown from the Hansard that Parliament had pointed out the deficiency of the Registration of Architects Act 1967 which was in pari materia with the Registration of Engineers Act 1967 when both Acts were passed in 1967 in amending s 15 of the Registration of Architects Act 1967. The s 15(a) amendment specified the appointment and powers of investigation and disciplinary committees. The applicant had also drawn comparison of other Acts governing the other professions and categorically stated that it was folly to believe that the engineering profession arc governed by different rules when it comes to natural justice and/or procedural fairness. The further submissions are exhibited in LPK-14 of the applicant's affidavit (Encl. 5).
The respondent had failed to point out that the applicant in filing his notice of appeal had made clear to the respondent that the appeal was lodged entirely without prejudice to the applicant's rights to pursue further recourse in the courts. (See Exh "LPK-11" Encl. 5) The applicant had informed the court of this through his affidavit-in-reply (Encl. 8 paragraph 5). The Federal Court in Lai Cheng Cheong v Sowaratnam [1983] 2 MLJ 113 held that an applicant for certiorari is not normally obliged to have exhausted his rights of appeal within the administrative hierarchy nor he need to have exhausted his right of appeal to a court of law. It is trite law that since the Federal Court decision in 1983 that even if there was an appeal provision available to the applicant the discretion still rest with the courts to act by way of judicial review where there is shown a clear lack of jurisdiction or a blatant failure to perform some statutory duty or in appropriate cases a serious breach of the principles of natural justice. This has been clearly set out in the Supreme Court case of Government of Malaysia v Jagdis Singh [1987] 2 MLJ 185 by Hashim Yeop A Sani SCJ at p 189D after an extensive review on this issue. This case was also followed in the High Court case of Sabah Berjaya Sdn Bhd v General of Inland Revenue Department [1996] 2 AMR 1356.
I do not agree with the submissions of the respondent that the case of Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungui Gelugor dengan Tanggungan [1999] 3 AMR 3529, binds me to the extent that I may not grant judicial review as the applicant has to exhaust the remedy for appeal under the Act in view of the specialized appeal procedure. The Majlis Perbandaran Pulau Pinang's case involved an appeal to the Council for a review of the Council's decision under the Town and Country Planning Act 1976. It is totally wrong to equate ss 19 to 23 of the Act as being a "specialized" appeal procedure to the specialized appeal procedure contemplated in the above case where there was reference to the certain classes such as planning, employment and tax cases whereby a statute provides for a specialized appeal procedure. One should not strain the wordings of ss 19 to 23 to the extent that it is "a specialized appeal procedure" when perusal of the sections will clearly show that there is nothing specialized about the procedure. Sections 19 to 23 simply sets out a general appeal procedure and indeed nothing can be more telling than the fact that ss 19 to 23 fall under the part of the Engineers Act 1967.
In Cheah Foong Chiew v Lembaga Jurutera Malaysia [1999] 2 AMR 2421, CA, the appellant therein had contended in the Court of Appeal as well as in the High Court that since the alleged act of the appellant as charged before the respondent, was in respect of the provisions prior to amendment of the said Act, he could only be charged for offences under the said Act and not under any regulations which only came into effect by the amendment. The Court of Appeal held that the challenge was premature as the tribunal had the power to decide on its jurisdiction and the appellant ought to have taken the matter with the tribunal first.
A close examination of charges three, four and five will show that these charges are in essence made against the applicant in respect of his alleged failure to comply with the Selangor Uniform Building By-laws which fall under the parent Act of Street Drainage and Building Act 1974 (Act 133). The applicant being mindful of this case at the outset of the proceedings, had raised his challenge on jurisdiction on charges three, four and five with tribunal (see pp 001-002 of the notes of transcript LPK-7, Encl. 5). It is pertinent to note that, in spite of the applicant's challenge on the Board's jurisdiction, it is clear from the grounds of decision that the tribunal did not address itself on this issue. The respondent had insisted through it's chairman, that the charges were not for the non-compliance of the by-laws but were instead for the applicant not upholding the reputation and standing of the profession.
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C. |
the charge is not for breaking the By-laws, it's for not upholding the reputation and standing the profession. We'll stick by our charges and we note your objection. |
That being the case, the respondent is totally confused for if the charges were for not upholding the reputation and the standing of the profession then the proper charges against the applicant should have been under Reg 23 and not under Reg 24.
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23. |
Every Registered Engineer shall at all times uphold the dignity, high standing and reputation of his profession. |
It is common ground that the charges against the applicant to be enquired into by the respondent is under s 15(1) of the said Act, which reads:
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15. |
(1) |
Subject to this section the Board may order the cancellation of the registration of any Engineer under any of the following circumstances: ....
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The charges framed against the applicant are based on the contravention of Reg 24 of the Registration of the Engineers Regulation 1990, which is re-produced hereunder.
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24. |
A Registered Engineer in his responsibility to his employer, client or the profession shall have full regard to the public interest. |
The gravamen of all the charges is undoubtedly the allegation of failure to have full regard to the public interest. These very words are framed within the charges itself e.g.
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Charge 1 That you, Leong Pui Kun .... failed to have full regard for the public interest in that .... Thereby contravening Regulation 24 .... (sic) shall have full regard for public interest. |
One need not be "eagled eye" to detect immediately that the charges had been tautologically framed and this in itself lends support, to the Board's stance that it is the custodian of public interest and its jurisdiction has no boundaries. This can be seen from the chairman's remarks, when he said "B.E.M. looks after public interest, do you still need a member of the public to complaint?" in response to the applicant's preliminary objection, that neither the MPSA nor any member of the public had made a complaint to the Board on charges three, four and five, which relate to alleged non-compliance of Building By-laws, a matter clearly within the jurisdiction of the local authority. Parliament did not empower the Board of Engineers under the Act to act as the custodian of public interest but to act only within the four corners of the Act. This brings us to the jurisdictional issue which had already been raised as a preliminary challenge with regard to charges three, four and five. Section 24 of the Interpretation Act 1948 and 1967 provides that:
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Anything done under any subsidiary legislation shall be deemed to be done under the Act or other written law under which the subsidiary legislation was made. |
Abu Mansor J held in the High Court case of Cheah Foong Chiew v Lembaga Jurutera [1994] 2 CLJ 516 that:
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any alleged contravention of the 1972 Regulation under which plaintiff was charged must by virtue of the Interpretation Act be also for contravention of the said Act. including the then existing subsidiary legislation which is deemed to have been made under the Act. |
Charges three, four and five pertain to the applicant's alleged failure to comply with the Selangor Uniform Buildings By-laws 1986. These charges levied by the Board supplant the powers of the Local Authorities in taking over the prosecution by the MPSA. The Selangor Uniform Building By-laws is subsidiary legislation conferred to the State Authority by s 133 of the Street, Drainage and Building Act 1974. The alleged non-compliance of these by-laws were simply not anything done under the Engineers Act or any written law under which the subsidiary legislation was made (i.e. the Regulations). As such, it is certainly within the powers of this court to view that as a matter of public policy it was not open to the Board by its tautological reasoning to prosecute the applicant or anyone else for the matter for the non-compliance of any by-laws in the way done by the Board by resorting to Reg 24, waving the "public interest" banner as a catch all clause. It would have been a different matter had the Board charged the applicant under Reg 23. This they did not do, and any decision based on the thinking that Reg 23 was operative, as it surely must have been in this case, is flawed, as the respondent did not take into account the relevant considerations. Public interest is not served by the perception of the respondent that it is the custodian of public interest when it acts on matters clearly not within the purview contemplated by Parliament.
The "public interest" clause is pervasive and endemic in legislation. Just as the Constitution establishes the separation of powers for the Governance and Administration in this country. Parliament with respect does not legislate to allow every statutory body and/or authority to prosecute "cross-borders" on account of "public interest". The MPSA through Ms Rose had certainly given evidence to the effect that they did not consider there was any wrong doing on the part of the applicant and had further confirmed that no charges were contemplated at all against the applicant, (see pp 053-054, note of transcript Exh PKL-7 Encl. 5). I think a parallel can be drawn with my decision in Tuan Hj Maidin when I took the view that the National Land Code 1965 (NLC) overruled the Regulations referred therein. In that case I had said at p 171, lines 26-32:
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It would appear only to govern the conduct of the surveyor in respect of land matters by virtue of the above. The Licensed Land Surveyors Regulations 1959 would appear only to govern the conduct of the surveyors whereas the National Land Code is supreme in so far as land matters is concerned. Since this involves land matters, I am of the view that the National Land Code overrules the Surveyors Regulations. |
The conduct which the respondent seeks to govern viz charges three, four and five emanates from the Street, Drainage and Building Act 1974 (Act 133) and as far as the alleged non-compliance of the Selangor Uniform Building By-laws were concerned, the Street, Drainage and Building Act 1974 is supreme. It must be emphasized that Parliament had given discretionary powers to the Local Authorities (in this case the MPSA) to modify or waive any of the requirements of any by-laws relating to the construction of the buildings. Section 74 of the Street, Drainage and Building Act 1974 provides as follows:
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74. |
Modification or waiver of by-laws
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The following exchanges between Ms Rose of MPSA and the chairman of the tribunal clearly shows that the respondent has usurped the powers of discretion given to the Local Authority under the Street, Drainage and Building Act 1974 (see pp 057-058 of the note of transcript, Exh PKL-7. Encl. 5).
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C. |
Don't waive but you don't enforce, so if I go through the traffic lights, you don't issue me summons, you don't charge me, so what is what? |
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V. |
I think I must stand to be corrected, the term waived is mine, more as matter of submission, not words of Miss Rose. |
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C. |
I want to ask her also, looks like the MPSA does not even follow the building by-law that should be binding on MPSA. Even your own letter, Exhibit 1, para. 4, you state that you cannot start work until the structural plans are submitted. But now you say you allow them to start work even though the plans are not submitted. |
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R. |
Like I have said Dato' Pengerusi, we do not enforce this clause. In the case of this project, it was through the special investor's project, so they were given special permission to start work before the building plans were approved. |
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C. |
But in your letter it says that they cannot start work until the structural plans are approved. This letter dated 4 April 1995. |
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R. |
And it is the onus of the consultant to submit those plans actually. Like I have said, we don't enforce. |
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C. |
If they submit, if they don't submit, its OK? |
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R. |
We shall not issue the C.F. later on. |
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C. |
So OK, before you issue the CF, do you get the consultant to sign that the buildings have been constructed according to design, according to drawings or do you need he to sign the structural drawings? |
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R. |
The submitting person will submit the Form E and certify that the building is fit for occupation. |
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C. |
Only one person? |
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R. |
Yes. |
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C. |
What about the structure? Nobody certifies? |
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R. |
We don't liaise with other consultants. We only liaise with the submitting person. |
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C. |
Which means either the MPSA doesn't know or doesn't apply the Uniform Building By-laws which talks about qualified persons. |
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R. |
The qualified person, in this case is the submitting person, it has been practised by all authorities. |
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C. |
No, no. Certificates of fitness for occupation of a building shall be given when the qualified persons during the course of the work have certified in Form E, which means you are not talking about one, you are talking about all disciplines. I think it is high time for MPSA look up to higher authorities for guidance. And that they accept full responsibility for those portion which they are respectively concerned with. Talking about structure, structure engineer must certify, not the architect. Never mind this is the learning process for MPSA. OK did you give special permission to Kajima that all by-laws are not required for this, are not required to be complied with for their job. Is that an information or do we just stand by your letter as per exhibit 1. |
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R. |
The letter was given to TAG architect as submitting person and they were the one who applied to get special permission to start work. |
It is quite clear that the respondent had not only just castigated the Local Authority but was also disdainful of the Local Authority by telling MPSA that it was high time they refer to "higher authorities" for guidance. One must remember that the Local Authorities have a discretion under s 74 of the Street, Drainage and Building Act 1974 to deal with waiver or modification of by-laws and it was very clearly a matter for the MPSA to decide whether there were non-compliance with the by-laws. In this case, the MPSA had confirmed that no charges were contemplated at all against the applicant (see pp 053-054, note of transcript, Exh PKL-7, Encl. 5) and it was totally inappropriate for the respondent to take "the law into its own hands" and decide that there was non-compliance of the by-laws and to "convict" the applicant accordingly. Using the respondent's reasoning, and the chairman's earlier statements, there is nothing to prevent the respondent from charging a registered engineer for a traffic offence, simply in the name of public interest.
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. It is noted that s 15 of the Engineers Act 1967 which deals with the powers of the Board of Engineers to order the suspension or cancellation of any engineer clearly states at s 15(2):
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that the Board shall not make any such order unless:
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In the case of Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456 where it was held that at p 458:
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(18) |
Domestic tribunals such as this committee, which derive their authority from Parliament, usually have a wide discretion to carry out inquiries in accordance with their own rules of procedure. At every stage, however, they must observe what are commonly regarded as rules of natural justice. An offender brought before a tribunal must not only be given a hearing, but he must also be given a fair hearing. Otherwise, the tribunal would be acting ultra vires. The adversarial system of justice necessarily means, in the case of a disciplinary committee of a professional body. that it must approach the issues before it with an open mind. |
The above case was also cited by me in the case of Loh Yoon Thong v Institut Akauntan Malaysia (Kuala Lumpur High Court Originating Motion No R2-25-92-1999) wherein I had set aside the finding of the disciplinary committee on the grounds inter alia that the manner in which the disciplinary committee went about its inquiry was clearly against the rules of natural justice and therefore ultra vires. However, the respondent on the contrary, in paragraph 13 of the respondents affidavit (Encl. 7) states that "the Board's function at disciplinary hearings is investigatory in nature" and that "it is not adversarial or inquisitorial". It is this line of thinking which is a clear indictment of the respondent's failure to distinguish between its earlier role to investigate into any incident and it's later role as a tribunal that has given rise to the breaches of natural justice and procedural fairness which was clearly in open defiance of s 15(2) of the Engineers Act 1967 and Articles 8(1) and 5(1) of the Federal Constitution which requires that in any hearing involving the issue of misconduct there must be due observation of procedural fairness (see Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 2 AMR 1617 at p 1654). Indeed the concept that the Board's function at disciplinary hearings 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. It should be highlighted at the Board in it's charge sheet dated November 11, 1998 (see Exh LPK 1 of the applicant's first affidavit (Encl. 5) had clearly stated the following:
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the Board after conducting investigation has decided to hold a hearing under section 15(2) of the Registration of Engineers 1967 where you are required to answer the following charges. |
It is therefore a contradiction in terms for the Board now to state that the investigatory process is still in place after having clearly stated that it had already conducted its investigation. In the case of Toy Eng Chuan v Professional Engineers Board [1982] 1 MLJ 249 wherein Meggary VC in the case of McInnes v Onslow Fane, had said at p 250 as follows:
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It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason: and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges (which in Ridge v Baldwin, Lord Hodson said were three features of natural justice which stood out) are plainly apt. |
The Board had formally charged the applicant based on a complaint from the MPSA. (See Exh "LPK-1" of the applicant's first affidavit (Encl. 5)):
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Pursuant to complaint received by the Board of Engineers Malaysia from Majlis Perbandaran Shah Alam regarding the collapse of the Linkway Bridge at Matsushita Television Co. Sdn. Bhd. Shah Alam, the Board has carried out investigation into the matter. |
However, it was subsequently established in the proceedings that MPSA had not made any complaint to the Board.
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V |
Miss Rose, I like you to answer these questions. Did the MPSA make any complaint to the B.E.M. regarding the collapse of the walkway bridge? |
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R |
No, we did not. |
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V |
There are various charges which deals with the by-laws. By-law 5 of charge 3 (read) "... failures to ..." By-law 7 (charge 4) (read) ".... fails to ...". By-law 16 (charge 5) read "... failure to ...". Are there any charges brought by MPSA against Mr. PK Leong in respect of the infringement of those by-laws, in relation to this particular project? |
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R |
No. |
Nevertheless the chairman in fact had insisted that there was a complaint from MPSA during the proceedings.
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V |
We want you to put on record that we had raised such issue on the matter of ultra vires and also we had pointed out that there in so much complaint emanating from MPSA regarding the charges written based on the By-laws. |
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C |
And also for your information, we charge engineer sometimes not based on any complaint. If you see a building collapse, even if nobody complain, he'll be charged. |
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V |
I think Mr. Chairman, I've read out on your letter that it was as a result of the complaint lodged by MPSA. |
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C |
But not on breaking of the By-laws, but the collapse of the bridge. Never mind, OK.. We know what you have said. OK. |
The Board has subsequently accepted that there was no complaint made by MPSA but nonetheless maintained that the existence of a complaint from the MPSA was not relevant to the validity of the charges against the applicant. The Board further stated that (see "LPK.-13" of applicant's affidavit (Encl. 5)):
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The Board has the powers under, inter alia, ss 4(1)(f) and 15 of the Registration of Engineers Act 1967 to carry out investigation 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. |
Having adopted the position that the respondent's role was investigatory at a disciplinary hearing it is not surprising that the respondent made their decision without requiring the presence of a complainant to support the facts of the complaint. The respondent had led the applicant on throughout the entire hearing that the complainant was in fact MPSA. To make matters worse, when this was discovered through the applicant's counsel efforts by examining MPSA's witness the respondent decided that it could still proceed to make a decision without any evidence being adduced at all from a complainant. Indeed the Board had even stated in its grounds of decision (see paragraph 13 of Exh LPK-17 of applicant's affidavit (Encl. 5)) that:
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As such. it must be concluded that Section 15 expressly pencils a situation where the Board may bring charges against an errant engineer without a formal complaint and cancel or suspend that engineer's registration, if he is found guilty of any of those charges. Although it may appear that the Board is acting as "complainant" and "judge", such a situation is expressly condoned by the registration of Engineers Act 1967. |
The question is simply whether the respondent sitting as a tribunal had acted beyond its permissible lawful limits by deciding that they were empowered under s 15 to proceed with making a decision against the applicant without producing a complainant at a hearing. This is in particular when the Board had formally charged the applicant pursuant to a non-existent complaint by the MPSA and that the hearing had proceeded on the assumption that the complainant was MPSA (as insisted upon by the chairman of the tribunal). The stark reality was that the hearing had proceeded and ended without any complainant. More alarming was that the applicant never knew what the complaints were as these were never told to him. In the case of Maidin Manap v Lembaga Jurukur Tanah Semenanjung Malaysia [2001] 1 AMR 161 at p 178,1 had stated inter alia:
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If there is a complainant, there must be a complaint. However no formal complaints were ever forwarded to the appellant. There should have been an explicit and definite complaint made to the Board for the Board to have relied on them to institute disciplinary proceedings. Only a charge was forwarded to the appellant as per Exh "HM-1" in the appellant's affidavit. |
Since the Board had seen it fit in its charges to specifically refer to MPSA as the complainant (when such was not the case) its insistence that MPSA was a complainant throughout the proceedings would amount to be a fundamental irregularity. The Board had relied on the fact that there had been a "complaint" but there had not been any complaint. It is by reason of this irregularity that there had been no "due enquiry" and it was not open to the respondent to simply take the position (see paragraph 9 of the grounds of decision of LPK-17 of the applicant's first affidavit (Encl. 5)) that:
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This power in Section 4(1) is very broad and clearly grants the Board the power to regulate the engineering profession even without the existence of a complaint from a complainant. |
In essence the respondent had decided to take over the role of the "complainant" after discovering that there was actually no complainant or any complaints made at all after the hearing had ended. It is akin to a Judge in the court upon discovering that there was no accuser decides that he will now take over both the roles of accuser and prosecutor. This clearly infringes the cardinal principle that no man shall be a Judge in its own cause (nemo judex in causa sua). This principle and the test of personal bias had been clearly expressed in the case of Maidin Manap v Lembaga Jurukur Tanah Semenanjung Malaysia [2001] 1 AMR 161 at p 181 where I had stated:
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It is to be remembered that no rules have been made regarding the procedure to be followed at inquiries held under s 17. In such a case, I am of the view the Board must do its best to act justly and to reach a decision by just means. 'If a statute prescribes the means it must employ them. If it is left without express guidance, it must still act honestly and by honest means'. See per Lord Shaw in the case of Local Government Board v Arlidge (1915) AC 120 at pp 132-3. On aspect of the concept of natural justice the principle of "nemo judax in re sua" which literally means that a man should not be a Judge in his own cause or that an adjudicator must be impartial. The principle that bias disqualifies an individual from acting as an adjudicator flows from the maxims.
The test of personal bias on the part of the decision-maker is not whether there was actual prejudice against the appellant or not. The courts do not go into the facts of the true case to see whether or not the appellant had been prejudiced in fact. The test is whether there is 'real likelihood' of bias in the facts of the case and this had to be ascertained with reference to the 'right minded persons'. |
Section 15(2)(b) clearly spells out that an opportunity of being 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 applicant had an inalienable fundamental right to question the person who had complained against him as a professional. This proposition is supported by my decision in case of Loh Yoon Thong v Institut Akauntan Malaysia (Kuala Lumpur High Court Originating Motion No R2-25-92-W9) wherein at p 25 I had stated: "Under such a state of ignorance as to the ground rules, and expecting that the complainant being the key witness would attend the hearing, the appellant informed the disciplinary committee that he would like to cross-examine the complaint who had made a statutory declaration in support of his complaint. The disciplinary committee rejected his request, saying that the appellant had to give appropriate notice if he desired to do so. I think this was wholly without basis and was illogical. This was because the appellant had an inalienable fundamental right to question the person who had complained against him as a professional. The question was whether the disciplinary committee had acted way beyond the permissible lawful limits?"
As in the above case, the applicant were also ignorant of the ground rules as the tribunal had failed to establish any proper procedures al the hearing and were also themselves unclear of its own procedures (see paragraph 14f of the applicant's first affidavit (Encl. 5)) and the failure of the respondent to produce a complainant at the hearing and to identify who the complainant actually was, clearly deprived the applicant of its inalienable fundamental right to question the person who had complained against him. Indeed, even the Emergency (Security Cases) Regulations 1975 (Escar) which provide the examination of witnesses under special circumstances under Reg 19 does not take away the accused's right to cross-examine the witnesses for the prosecution.
It is observed that the respondent had accepted the charges as proven and the hearing on the August 9, 1999 was only a formality and that the respondent had in fact arrived at a conclusion even before carrying out the said formality. This can be seen from the active role that was assumed by the chairman of the tribunal in discharging his duty not only as an adjudicator, but also the role as prosecutor. The statements by various other members of the tribunal also show that they were biased. This was clearly seen in the notes of evidence where the chairman attempted his best to seek out the appellant's weakness. Paragraph 88 of the Halsbury's Law of England, 4th Edn, Vol 1 amongst others, states:
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Likelihood of bias may also because an adjudicator has already indicated partisanship by expressing opinions antagonistic or favourable to the parties before him, or has made his views about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment, or because he so actively associated with the institution or conduct the proceedings before him, either in his personal capacity or by virtue of his membership of an interested organisation, as to make himself in substance, both judge and jury. |
Following the respondent's recent statement in their affidavits that its role at a tribunal hearing was investigatory it now comes as no surprise that the chairman of the tribunal YB Dato' Ir Hj Zaini Omar was also the President of the Board of Engineers (see Exh PK-L-2 of applicant's affidavit-in-reply (Encl. 8)) had descended into the arena and joined into the fray (as did some of the other members). In the case of Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 465 referred to earlier, the court held that:
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In hearing evidence, a disciplinary committee may seek clarification on points in the evidence which are not clear, but in doing so it must at all times avoid descending into the arena, and joining in the fray. An inescapable impression formed from perusing the transcript is that, in trying to discharge its responsibilities effectively, the committee went well beyond its authority to carry out a 'due inquiry' under the Act, until the inquiry became an inquisition of its own, aimed at securing evidence to justify a finding of guilt. The manner in which the committee went about its inquiry was clearly against the rules of natural justice and therefore ultra vires, and on this ground alone any finding and sentence by it would have been avoided. |
I am of the opinion that the various statements made by the chairman and other members of the tribunal which are reproduced below clearly shows that the manner in which the respondent went about the hearing was clearly against the rules of natural justice and therefore ultra vires and its decision void.
Owing to the volume involved, only a few examples are highlighted hereunder:
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(1) |
V |
Even in the draft charge stated in your Ad-hoc Committee report, there's also no complaint of By-law 16(1). It's in your own Ad-hoc Committee draft charge. I'm just putting the point through. |
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C |
Yes, and the Board is not bound to accept everything the Sub-Committee's advice is. The Board may make up it's own mind, and it has made it's own mind. |
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(2) |
V |
You're not presenting witness ... |
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C |
No we don't. But, if you want, you can make the reports .... as far as we are concerned, the report and the charges standby themselves. If we need further clarification we'll call in people. |
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(3) |
M |
Datuk Chairman, I noted from Vincent Lim's submissions on note 7; he brought up that I.E.M. had clarified something. I think we have to make clear at this point, we are Board of Engineers and we do not answer to what I.E.M. says. |
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C |
Yes. They answer to us, we don't answer to them. That's for sure. We're statutory authority and they are an institution. |