BADAN PEGUAM MALAYSIA 1. ) PENDAFTAR HAKMILIK NEGERI JOHOR 2. ) PENTADBIR TANAH DAERAH JOHOR BAHRU 3. ) PENGARAH TANAH DAN GALIAN JOHOR

JA-25-26-09/2022 Kand. 25 17/10/2023 11:29:24 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TA’ZIM, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO: JA-25-26-09/2022 Dalam perkara mengenai satu keputusan Responden- Responden yang telah mulanya dicadangkan dan dimaklumkan kepada Pemohon pada 20.6.2022, dan kemudiannya diubahsuai oleh Responden- Responden pada 5.7.2022 (sepertimana yang telah dimaklumkan kepada Pemohon pada 7.7.2022) berkenaan satu “Tatacara Pengunaan Akuan Penyerahan Dokumen Pentadbiran Tanah Johor”; Dan Dalam perkara Seksyen 294, 297 sehingga 303 (dan peruntukan- peruntukan lain yang berkenaan) Kanun Tanah Negara 1965; Dan Dalam perkara Seksyen 41, 42 & 73 (dan peruntukan-peruntukan lain yang berkenaan) Akta Profesion Undang-Undang 1976; Dan Dalam perkara permohonan untuk perintah certiorari, mandamus dan/atau relief deklarasi menurut Seksyen 25(2) perenggan 1 Jadual Akta Page 1 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal Mahkamah Kehakiman, 1964; dan Aturan 53 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara bidangkuasa Mahkamah yang Mulia ini ANTARA BADAN PEGUAM MALAYSIA …PEMOHON DAN 1. PENDAFTAR HAKMILIK NEGERI JOHOR 2. PENTADBIR-PENTADBIR TANAH (DI DALAM NEGERI JOHOR) 3. PENGARAH TANAH DAN GALIAN NEGERI JOHOR …RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Background facts [1] The Respondents in July year 2022, proposed to introduce a new requirement (hereinafter referred to as “proposed requirement”) in the guideline known as “Tatacara Pengunaan Akuan Penyerahan Dokumen Pentadbiran Tanah Johor” (hereafter referred to as “Tatacara”) pertaining to the presentation of instruments of dealings and other documents for registration at the registry offices of the Respondents in the state of Johore. Page 2 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal [2] The applicant having sight and having perused this “proposed requirement” in the said “Tatacara” (marked as exhibit “MB-1” to affidavit in support enclosure 2) became concerned of its legality and effect, that moved the filing of enclosure 1. This Court acknowledged the statutory duty under the Legal Profession Act 1976 of the applicant and to quote some examples of these statutory duties as stated in the said affidavit, are as follows: a) where requested so to do, to express its view on matters affecting legislation and the administration and practice of the law in Malaysia; b) to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interest of the legal profession in Malaysia; c) to protect and assist the public in all matters touching ancillary or incidental to the law. [3] The applicant, and this Court recognizing the applicants’ interest as above who is acting not only for the members of the Bar Council but also the public, quoted the highlighted concerns as deposed by the applicant in the affidavit to be as follows: “the Proposed Requirement was questionable in terms of (inter alia) its legality, objective, procedural irregularity, rationality, reasonableness, desirability and/or proportionality”. [4] These concerns being elaborated further in the subsequent paragraphs of the applicant’s affidavit, to mean that a solicitor who represents documents (on behalf of his or her client) at the registries or offices of the Respondents would be required to sign a “Surat Akuan” and Page 3 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal “Akuan Pemohon” which contained unreasonably broad and unqualified statements. It was also said that the “Surat Akuan” is also self-serving to the Respondents. [5] The Respondents on the other hand responded that the “Tatacara” is merely administrative and on the same stand in the Respondents’ line of duty, was drafted for the purposes of upgrading ongoing practices that are already long in place to ensure effectiveness and to serve as a notice to those submitting or making the surrender of the documents in verifying and acknowledging the ‘truth’ and ‘legitimacy’ of the contents of the said documents handed in (the affidavit of the Respondent in Bahasa Malaysia para 34.9 ‘dokumen yang diserahkan adalah benar dan tulen’). [6] This moved the applicant to file an application for judicial review under O53 Rules of Court 2012 in enclosure 1 with leave granted (Respondents having no objection to the leave application), seeking for the following reliefs: a) A declaration that the said Tatacara (containing therein a “Surat Akuan” and a “Akuan Pemohon” is unlawful, invalid, null and void, and/or ultra vires the National Land Code 1965; b) An order of certiorari be issued to quash and set aside the said Tatacara (including in particular the “Surat Akuan” and the “Akuan Pemohon” contained therein); c) An order that the Respondents shall forthwith cease to impose and/or implement the said Tatacara (and the “Surat Akuan” and the “Akuan Pemohon” contained therein); or any other requirement of a similar nature, purport or effect; Page 4 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal d) A declaration that any and all signed “Surat Akuan” and signed “Akuan Pemohon”, that have been required and received by the Respondents (or by any one or more of them), shall be void and shall have no legal effect; e) Such further, consequential, or other reliefs or orders be granted as this Honourable Court may deem just, necessary or expedient. [7] There was a further relief sought in the said application for a stay of the implementation of the said Tatacara if leave for judicial review is granted and pending final disposal of the judicial review. With leave for judicial review granted by this Court, the Respondents having no objection to the said leave application, stay was equally granted pending disposal of the judicial review hearing. [8] Having heard submissions by both parties on the hearing of the final judicial review (unfortunately only oral submission by the Respondents with apology by the SFC due to unavoidable reasons), this Court dismissed the said application having found that the Respondents were merely acting administratively in issuing the said ‘Tatacara’ and ‘Akuan’, having found similar declaration in some of the existing forms under the NLC. A stay pending appeal was similarly granted by this Court, the Respondents having no objection to the said oral application for stay by the applicant subject to a Notice of Appeal being filed, which the Bar Council did then. The findings by this Court [9] This Court having perused the cause papers and the submissions by both parties, came to a finding that the placing of the signature on the Page 5 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal said ‘Akuan’ is not merely to complete a procedural process but the signing comes with some level of confidence by the SIGNOR that the documents are true. The act of signing is not merely procedural ‘bukan sekadar tandatangan’ but comes with risk and consequences of a professional responsibility, a solicitor having been significantly involved in the said process. [10] This is in line with para 34.9 of affidavit in reply by the Respondents enclosure 13 couched in the following words: “34.9 Pengenaan Surat Akuan dan juga Akuan Pemohon yang terkandung di dalam Tatacara tersebut juga bertindak sebagai satu notis kepada penyerah bahawa ia bertanggungjawab untuk memastikan bahawa dokumen yang diserahkan adalah benar dan tulen”. [11] That much the signature, to this Court, ought to carry. As a repetition but important, this practice since time immemorial, has been in place as can be seen from some of the available forms under the NLC and some that are annexed to the affidavit enclosure 2 of the applicant. The relevant forms can be seen in Form 14D (NLC), Forms 5A & 9A (Enakmen Mineral Negeri Johor 2003), Form B (Akta Hakmilik Strata 1985 Kaedah-kaedah Hakmilik Strata 2015 Subkaedah 9(2)), which contain the same declaration worded as follows: “Maklumat di atas telah disemak dan diakui benar”; “Saya mengaku bahawa semua maklumat yang dikemukakan adalah benar”; Page 6 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal “Saya /Kami dengan ini memperakui bahawa maklumat di atas adalah betul”; “Saya/Kami dengan ini memohon untuk mendapatkan lesen … dan mengaku bahawa sepanjang yang saya/kami ketahui dan percayai semua butir-butir yang diberi dalam permohonan ini adalah benar dan betul”. [12] These declaration as disclosed in those forms and depending on which form it is, would be signed either by the ‘penerima pindahmilik, pembeli dll’ or by the company with the office of the signatory and the company seal ‘jawatan & meterai syarikat (jika berkenaan) dan tandatangan’. As can be seen, from this Courts’ observation and based on the reasons stated in the affidavit of the applicant, the challenge is therefore focused or confined to the need for a solicitor to sign the said “Surat Akuan’ (referred to by the applicant as ‘Keperluan yang Dicadangkan’ of the Respondent) and should not be centered on the contents of the said ‘Akuan’. [13] The Respondent contended that Respondents’ affidavit in reply enclosure 9 had addressed this concern on the part of the applicant when a meeting dated 5.7.2022 was held, followed with the issuance a new formatted form B11 by making an amendment to the signatory of the ‘Akuan’ (hereafter referred to by the applicant as ‘Keperluan Diubahsuai’) instead of making it mandatory to be signed by a solicitor, it must now be signed by the original owner of the documents submitted to the solicitor (see form B11 exhibit ‘MB-7’ enclosure 2). These changes, however based on the applicant’s contention ‘do not resolve all the issue’. Page 7 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal [14] Arising from this averment too, in spite of the Respondents’ assurance, the observation of this Court is that the challenge by the applicant is not only on the manner of drafting of the statements in the contents of the said “Proposed Requirement” of the “Tatacara” per se that is being challenged but also who is tasked to sign it. On this analysis, it is therefore crucial to scrutinize the wordings of the “Surat Akuan” and the “Akuan Pemohon” in the “Proposed Requirement” to determine its legality and, consequentially, if validly issued within the scope of the Respondents statutory power under the National Land Code. The contents of the “Surat Akuan Penyerahan” and “Akuan Pemohon” under the “Proposed Requirement” [15] The “Surat Akuan Penyerahan” contains the following statements: “(b) Kesemua dokumen yang diserahkan kepada Bahagian _____ pada _____ adalah sah, tulen dan tiada sebarang unsur pemerdayaan atau penipuan; (c) Sekiranya mana-mana dokumen yang diserahkan ini palsu dan/atau tidak benar, saya bersedia disiasat dan bertanggungjawab sepenuhnya ke atas maklumat/dokumen-dokumen berikut dan tidak akan mengambil sebarang tindakan undang-undang ke atas Pejabat ini di atas penerimaan maklumat/dokumen- dokumen yang diserahkan oleh saya. “Diserah Oleh: Diterima Oleh: __________________ ___________________ Nama: Nama: KP: KP: Tarikh: Tarikh: ” Page 8 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] The “Akuan Pemohon” contains the following: “Sekiranya mana-mana maklumat/dokumen-dokumen yang diserahkan atau apa-apa kenyataan yang palsu atau tidak benar atau silap atau tidak lengkap, saya akan bertanggungjawab sepenuhnya ke atas maklumat/dokumen-dokumen yang dikemukakan tersebut dan bersedia untuk dikenakan sebarang tindakan dari Pejabat ini. Saya mengaku semua maklumat/dokumen-dokumen yang diserahkan di atas adalah benar, sah dan tulen, tiada sebarang unsur pemerdayaan atau penipuan, sekiranya terdapat maklumat yang tidak benar, Pejabat ini berhak untuk membatalkan/menolak permohonan ini. Tandatangan pemohon: ……………… Tarikh: ………………. No. Tel: ................” The importance of the declaration in the endorsement: the differences in the ‘akuan’ [17] With the stand of the Respondents that exhibit ‘MB-7’ has provide option to solicitors, hence the word ‘pemohon’ in the said declaration in the ‘Proposed requirements’/’Keperluan Diubahsuai’ must be given a wider interpretation. The applicant contended that “the ‘Akuan Pemohon’ is still required to be signed by a lawyer (“Pemohon”) who presents documents for registration” (See: applicant’s submission enclosure 15). [18] The applicant’s submission elaborated further on this point as follows, with those underlined contained in the bracket, as observed by this Court being the applicant’s concern: Page 9 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal “(a) To sign an undertaking or declaration (akuan) to, inter alia, certify that all documents presented (whatever their sources may be) are “sah, tulen dan tiada sebarang unsur pemerdayaan atau penipuan”; (b) To undertake or declare that the Pemohon “tidak akan mengambil sebarang tindakan undang-undang ke atas” Respondents (whatever the circumstances may be).” [19] It is of utmost importance to firstly recognize that the statutory duty of the Respondents under the NLC is fundamental as it centers, amongst others on actions that would bring an end result of finality on the indefeasibility of title pertaining to the said land, of an individual or a company. Once registered, any challenge on the result requires a judicial process to set it aside by determining on the validity of such registration. [20] This inevitably involves time and expenses, money spent be it in the form of a gain or loss by either the seller or buyer in the suspected transaction but also availability of witnesses. Challenges may arise not only by the rightful owner but also a bona fide purchaser subsequently. Thus, the declaration acts not only as an assurance but with some degree of professional guarantee that the documents submitted are authentic and its contents are true and accurate. [21] This Court takes judicial notice as to who the ‘Pemohon’ may be and it is not disputed that in a dealing of a sale and purchase, a solicitor may be one, having been made aware under the conveyancing best practice, that a solicitor is only permitted to act for the purchaser but not for both seller and buyer. This brings this Court to the next issue that is the source of the documents presented to the solicitor. The applicant submits that the Page 10 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal legal firm can only be made responsible and answerable towards the documents prepared by their firm or signed by their respective solicitor and nothing more. [22] This said example given in the above submission by the applicant would reasonably and logically be inclusive in this ‘Tatacara’ more so a Form 14A clearly carries a clause to be attested by an advocate and solicitor. This Court is minded that solicitors would, without fail make the necessary inquiry and inspection of the documents and information to ensure their accuracy. As otherwise, this Court is of the view solicitors could equally be investigated under the NLC provision section 422 (knowingly makes or gives false statements). [23] As an example of such attestation by a solicitor is in the form 14A that contains the following fundamental statement: “Saya___________ seorang Peguambela & Peguamcara Mahkamah Tinggi Malaya, beramal di ________, Selangor dan mempunyai Sijil Amalan yang sah, dengan ini mengaku bahawa *tandatangan/cap ibujari yang di atas itu telah *ditulis/dicapkan di hadapan saya pada ___haribulan___20___ dan adalah *tandatangan/cap ibu jari yang benar bagi:- ___________________ yang telah mengaku kepada saya: (i) Bahawa ia/mereka adalah cukup umur; (ii) Bahawa ia/mereka adalah/bukan warganegara Malaysia; (iii) Bahawa ia/mereka telah menyempurnakan suratcara ini dengan kerelaan hatinya sendiri; (iv) Bahawa ia/mereka faham akan kandungan serta natijahnya. Page 11 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal Disaksikan dengan tandatangan saya pada _____haribulan_____20_____ _______________ Tandatangan” [24] The above attestation is to place a duty on a solicitor to act prior to submission of the relevant documents to the land office, to verify the said transfer by the owner of the said land that the transfer being conducted honestly free from any pressure or adverse influence (deception and fraud would be inclusive) from the wordings in italic above. [25] To put the contents of this attestation in short, is that the said form 14A has been completed with a degree of check and inspection of a high standard towards ascertaining its veracity as contained in the ‘Akuan Pemohon’ that the “maklumat/dokumen-dokumen yang diserahkan di atas adalah benar, sah dan tulen, tiada sebarang unsur pemerdayaan atau penipuan” as otherwise a professional negligent suit by either the seller or purchaser as victim, cannot be discounted. [26] The affidavit in support of enclosure 1 by the applicant carries some reservations. It deposed of the obstacles from the practical aspect in implementing the ‘Akuan’, reason being the documents necessary for the purpose of satisfying the 14A transfer and registration of charge would originate from different sources and to name a few, are as follows: a) the document of title and the receipt of quit rent are issued by PTG; b) form 14A is signed by the seller and purchaser; Page 12 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal c) discharge of charge (form 16A) signed by charger and the bank; d) withdrawal of caveat (form 19G) signed by purchaser and/or bank. [27] The applicant therefore suggests that the ‘Akuan’ would need to be signed by more than one entity, depending on the origin or the maker of the documents. These documents (based on the submission as deposed in the said affidavit) could not be ascertained their authenticity as they are signed by a different party than the solicitor signing Lampiran B11. It is the stand of the applicant that the documents surrendered have complied with the said requirement of the law and if there have been any criminal element or fraud in the transaction, it is for the Court to find so subject to proof, and not one within the PTG Respondent’s jurisdiction. [28] The Respondents in para 36.1 and 36.2 of the affidavit in reply enclosure 13 said that the duty to declare or ‘Akuan’ that “maklumat/dokumen-dokumen yang diserahkan di atas adalah benar, sah dan tulen, tiada sebarang unsur pemerdayaan atau penipuan” is imposed on the original owner or custodian of the document (and without doubt, the solicitor) and to this Court’s view is logically and reasonably so, as professional conduct on the part of the solicitor would demand that some inquiry would have been conducted to ascertain the veracity of what has been declared and not just merely inscribing with a mark of a signature. [29] As to the PTG’s role and duty under the NLC, applicant made reference to the case of Pendaftar Hakmilik, Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor v Poh Yang Hong [2016] 9 CLJ 297 (Federal Court), a decision that ruled on “the duty of care owed Page 13 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal by the land administrator in ensuring that searches made at the Land Registry would carry accurate information and a duty to maintain the register of all lands caused to be registered at the Registry and to ensure the information contained in the Register is correct, true and accurate and reflects the true and actual description of the title to the land as well as the true identity of the registered proprietor …” [30] In the above case, the facts in summary are that the private search and official search revealed the same piece of land bearing two different land description and two different owners as follows: “the plaintiff covenanted to purchase the land GRN 232, Lot 349, Section 71 Bandar Kuala Lumpur. Whilst the memorandum of transfer and the other documents which were necessary to effect the transfer and charge of the land were pending registration by the second defendant, the plaintiff discovered that the land was in fact held under the description PN 20992, Lot 349, Bandar Kuala Lumpur and was registered to one Mohamad Nor. The plaintiff then conducted official searches of both titles at the second defendant's office and found that the land held under GRN 232 was registered to the first defendant and that the land held under title PN 20992 was registered to the said Malay man (there were two different and opposed particulars of registration of the same land)”. [31] It is important to note that a plea of fraudulent title and/or fraud on the part of any third party was raised during trial with police report lodged by the Defendants. Although the learned trial Judge ruled that “the identity of the fraudster remains a mystery even to the second defendant despite the lodging of the police report by the officer/servant of the second defendant”, the Court further ruled as follows: Page 14 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal “(2) The second defendant knows and/or must be taken to know that the members of the public depend on him and his officers to ensure that what is contained in the register is correct and accurate since they have no other way or means of ensuring that they can obtain accurate and reliable information except from him and his officers. (3) The second defendant also knows and/or must be taken to know that the members of the public require information in order to ensure that the person whose name and particulars are registered in the title is in law the registered proprietor of the land as they do not wish to make payment to and be cheated by a person who claims to be the owner of the land but turns out to be a bogus owner. … (6) Hence, the second defendant must take all reasonable steps to ensure that the register contains only correct, true and accurate information failing which the second defendant must be held to have breached his duty of care to the member of the public concerned …” (See: [2013] 8 CLJ 964 for the reported case of the High Court). [32] This Court is of the view that as stipulated in the judgment of the High Court in italic above, the Respondents are entitled to do the necessary (within the perimeters of the law) by way of a follow-up and follow through responds on their part. This particularly so with land fraud cases in Johore that cited legal firm as one of the Defendants, as observed by this Court is slowly becoming apparent (two cases for trial came to the attention of this Court in just a span of 3 months being JA-23NCvC-10- 09/2019 & JA-22NCvC-136-09/2019. See also on general observation of land fraud with legal firm involved happening elsewhere by Leong Wai Page 15 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal Hong JC in Chiew Yit Kin v. Pengarah Tanah Dan Galian Wilayah Persekutuan & Ors [2023] 5 CLJ 540) [33] In Chiew Yit Kin (supra), it was pleaded against the solicitor as follows (judgment in default was entered against her as 6th Defendant): “Particulars Of Fraud And/Or Forgery Of The Sixth Defendant [28] The sixth defendant has made and/or caused to be made a false declaration and/or fraudulent representation to the first defendant that she has witnessed and attested the plaintiff's execution of the fraudulent Form 14A by inscribing a hand- written signature on it. [29] The plaintiff contends that the sixth defendant has acted in concert and/or with the common intention together with the third, fourth and fifth defendants to perpetrate the fraudulent transfer”. [34] Having analyzed the said case, the outcome of this case may possibly have triggered the concern on the part of the applicant as to what the declaration ought to mean when para 6.3 of the affidavit in support states: “…Keperluan Diubahsuai mengabaikan dengan tidak betul perbezaan penting antara mengesahkan kepercayaan jujurnya bahawa suatu dokumen adalah “sah & tulen” (yang mana adalah munasabah); dan seorang yang perlu mengesahkan atau mengisytiharkan bahawa dokumen berkenaan adalah “sah & tulen” (yang mana adalah seringkali mustahil dan oleh yang demikian tidak munasabah).” Page 16 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal [35] This Court agrees that this reservation by the applicant is true and real. However, it cannot be disregarded that the challenge would equally centers on the contents of the said documents that would determine if it is correct and accurate or otherwise, forged. It is akin to challenges that normally arises during trial when documents are proposed to be tendered as exhibit, arguing that the said form itself is authentic but its content is disputed. [36] The applicant takes the stand that the solicitor can only attest to a lesser standard that he or she "verily believe that the document (the contents of the said document inclusive) as true”. This Court is of the finding that this is a lower standard akin to merely being sufficient to declare that the solicitor ‘honestly and/or frankly of the belief’ the said declaration as true. This, as opposed to what the Respondents require that a declaration by the solicitor of a higher standard “that with clear certainty finds the documents as true”. [37] This Court takes the view that merely seeking attestation of the authenticity of the document without some degree of veracity of its contents would only lead, with respect, to the care less attitude on the part of the solicitor as to the degree of responsibility owed by the solicitor not only towards her or his client but also the duty of care towards the public, at large. The contents of the existing forms (Form 14A read with the attestation clause Form 13B to name one) and its effect if untrue may lead to a domino effect repercussion to a bona fide third party. [38] It is therefore seen by this Court as a valid move by the Respondents to prevent such aftermath of wrongful gain on the part of the perpetrator or wrongful loss on the part of the victim. There is no denying Page 17 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal that a wrongful gain could also be attributed on negligent solicitors who had merely placed their signature on the said document without anything more done as check and balance towards ascertaining its validity and honest solicitors who had complied with the conveyancing best practices but yet failed to detect the fraud. [39] For this reason, the applicant argued that this is a matter for the Court to decide subject to proof and not the PTG. This Court views this stand of the applicant with extreme caution as firstly, the NLC clearly equips the Respondents with power to carry out any investigation under section 421AA pertaining to any offences under the NLC and this including the offence under section 422(a), (c) and (d) as follows: “Section 422. Penalty for false statements, etc. Any person who— (a) knowingly makes any false statement, orally or in writing, in connection with any dealing or other transaction affecting land, or any other matter arising under this Act, or (aa) knowingly gives any false information or makes any false statement, either orally or in writing, in connection with any investigation into the commission of any offence under this Act; (b) knowingly gives false evidence at any enquiry held under this Act, or (c) fraudulently procures— (i) the registration or issue of any document of title or other instrument relating to land, or (ii) the making of any memorial or other entry on any such document or instrument, or Page 18 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal (iii) the cancellation or amendment of any such document or instrument, or of any memorial or other entry thereon, or (d) suppresses or conceals from the Registrar, or assists or joins in so doing, any material document, fact or matter, commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.” [40] As can be seen, section 422 is wide and not related to merely giving or making false statement during an investigation by the Land Administrator but also governs the commission of fraudulent act committed in the cause of any dealing or transaction affecting land. This Court is of the view that any party and a solicitor not excluded, would come under the purview of section 422. Whether such a case is proven or not is another issue so long as it can be shown that the Respondents, the PTG have taken active measures towards ensuring the validity of the documents and/or contents of the documents submitted by the relevant parties in the said transactions by way of the ‘Akuan’ in the ‘Tatacara’. [41] Having observed all the above, moved this Court to a finding that the new ‘Akuan’ and ‘Akuan Pemohon’ in the ‘Tatacara’ is to reinforce what has already been encompassed in the existing forms in the NLC and hence, the issuance of the ‘Tatacara’ is merely done administratively to complete to upgrade and to enhance the existing process. It is the view of this Court, that the said ‘Tatacara’ is necessary, having cited and observed the decision in Poh Yang Hong (supra), where issue of fraud arose but the identity of the fraudster either unidentified or known, hence Page 19 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal would lead to an inevitable inference that the Respondents involvement could not be ruled out. [42] Therefore, even if as contended by the applicant and agreed by the Respondents that the birth of the ‘Tatacara’ arose from the recommendation by the Johore Anti-Bribery committee as a mean to fight against deception (pemerdayaan) and fraud (penipuan), to this Court’s view, the administrative act of the Respondents in issuing the ‘Tatacara’ is to kill two birds with one stone, that is, it amounts to addressing both the interest of the Anti-Bribery Committee and the pre-existing interest of the Respondents, simultaneously. [43] The creation of this ‘Akuan’ neither does it refute the duty of care owed by the Respondents nor it protects the Respondents from any civil suit of negligence and criminal investigation of bribery or fraud or forgery under the existing laws. Thus, even if the ‘Akuan’ to a certain extent is self- serving to the Respondents, it is in line with the judicial pronouncement that the Respondents owe a duty of care towards the public hence the public’s interest is protected by this action taken by the Respondents. [44] In addition, the ‘Akaun Pemohon’ contained in the ‘Tatacara’ would assist in the elimination process of bad dealings and suspicious transactions leading to the consequential result by the Respondent dismissing or rejecting the application submitted. This duty is envisaged in section 297 of the NLC and embodied in the common law duty of care as found in Poh Yang Hong (supra). Page 20 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal [45] This Court further concludes that the standard of proof of the Respondents in ascertaining either fraud or forgery in its investigation under section 422 NLC is similar to the standard of proof required in a civil suit for declaration and damages that is on the balance of probabilities (see: Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584 Fed Ct). It is on this basis that the Respondents took the stand that the standard required in the declaration and attestation, is higher than just merely saying ‘I believe’ albeit lower than the criminal standard of proof beyond reasonable doubt ‘with utmost certainty’. This Court, relying on the decision in Sinnaiyah finds no error on the part of the Respondents to adopt this stand. [46] For these reasons, this Court could not find any merits in this application for judicial review and thereby is dismissed. Signed (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Hakim Mahkamah Tinggi Malaya Johor Bahru Dated: 17.10.2023 Page 21 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal COUNSEL For the Applicant: Dato’ Yeo Yang Poh (Fadhil Ihsan, Syahmi Nawawi, Aimi Syarizad with him) Messrs. Zaman & Associates Advocates & Solicitors Suite 12-01 & 12-02, Level 12 Menara TJB 9 Jln. Syed Mohd. Mufti 81200 Johor Bahru Johor For the Respondents: Muhammad ‘Azzam bin Zainal Abidin Penolong Penasihat Undang-Undang Negeri Johor Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Iskandar Puteri Johor Page 22 of 22 S/N qD1J7E1x10uorzL/M7CA **Note : Serial number will be used to verify the originality of this document via eFILING portal