Liew Chun Kim @ Liew Chun Tai v Pendaftar Pertubuhan Malaysia (S-01(NCVC)(A)-205-06/2017)

However, on 9.03.2014 by way of a resolution, the 5 Committee of PCCCI had appointed a new licensed auditor to audit PCCCI’s Financial Statement (“FS”) prior to the AGM. Subsequently, vide a Letter dated 20.03.2014, the Honorary Auditors whom were appointed for the term of 2012-2014 had informed the Director of the State Registry that the AGM was held 10 without audited Accounts; that the two Honorary Auditors did not audit and certify the Accounts and the new Committee elected during the AGM had contravened the Rules and Constitution of PCCCI. 15 [3] On 8.05.2014, PCCCI submitted its Annual Return for 2013, Minutes of the 2014 AGM and Annual FS 2013 to the Registrar of Societies Kota Kinabalu. In response to that, the Penolong Pendaftar Pertubuhan Negeri Sabah (“PPPNS”) issued a Notice under Section 13(2) of the Societies Act 1966 dated 7.07.2014 to 20 PCCCI which proposing to cancel the registration unless PCCCI could provide reasons for its registration not to be cancelled in writing 30 days from the date of the said Notice. PCCCI explained that they had encountered problem in getting the Honorary Auditors to audit and sign its FS and therefore they had appointed 25 a new licensed auditor to audit its FS so that an audited accounts of PPCCI could be presented at the 2014 AGM. The PPPNS had replied vide a letter dated 18.07.2014 stated that PCCCI is to solve its problem concerning the FS for the year ended 31.12.2014 with the two Honorary Auditors appointed pursuant to the 2012 AGM as 30 4 required by Rule 13(2) of PCCCI’s Rules and Constitution. PCCCI 5 was also requested to submit the solution to the problem within 14 days from the date of receipt of the letter and failure to comply with the stated requirement, further action will be taken against PCCCI under Section 13(2) of the Societies Act 1996. However, due to some difficulties in contacting the two Honorary Auditors, PCCCI 10 requested for the timeframe to submit the solution to be extended to middle August. In another letter dated 30.07.2014 to PPPNS, PCCCI stated the following:

That on 10.03.2014, PCCCI engaged the services of 15 Chui Charn Heng as a qualified auditor to audit and certify its FS for the year ended 31.12.2013;

(ii) The Appointment of the new auditor was done because the services of the two Honorary Auditors appeared to 20 be uncertain and several attempts to contact them have been unsuccessful;

(iii) PCCCI’s 5th meeting of the 4th term Committee held on 9.03.2014 had unanimously passed a resolution on the 25 appointment of the new auditor; and

(iv) The Audited Statement of Accounts for the year ended 31.12.2013 was passed and adopted by the AGM held on 16.03.2014. 30 5 [4] However, by a Deregistration Order dated 15.08.2014, the 5 registration of PCCCI was cancelled by the PPPNS. Dissatisfied with the decision, PCCCI filed an appeal to the Minister of Home Affairs against the Deregistration Order. Subsequently, the Honorary Auditors wrote a letter to Bahagian Pendaftaran Negara dan Pertubuhan (BPNP) stating that PCCCI’s accounts were not 10 audited and the Honorary Auditors had been intentionally and unlawfully by-passed and replaced by a new auditor. On 20.01.2015, the Minister of Home Affairs allowed the PCCCI’s appeal but with the condition that PCCCI has to submit its Annual Return and information that the Jabatan Pendaftaran Negara 15 required it within 60 days from the date of the letter. Therefore, vide a letter dated 3.02.2015, PCCCI resubmitted its Annual Return for 2013, Minutes of the 2014 AGM and Annual FS for 2013 signed by the new auditor. However, the Honorary Auditors and several members of PCCCI vide a letter dated 19.05.2015 to 20 BPNP, informing that the financial report was incomplete and had not been audited and signed by the lawful auditors. Thereafter, PPPNS required PCCCI to resubmit its complete FS for the year ended 31.12.2013 which properly signed by the Honorary Auditors within 30 days from the date of the letter in which failure to comply, 25 further action will be taken under Section 13 of the Societies Act. PCCCI replied that the two Honorary Auditors opted not to answer all calls from PCCCI due to the disagreement between the existing Committee and the then President who resigned on 19.02.2014 and PCCCI also wrote further to PPPNS on 13.07.2015 to inform 30 6 that PCCCI was unable to meet with the two Honorary Auditors to 5 get them to audit and sign the FS as per requested. PCCCI further requested JPPNS to postpone the 2016 AGM until end of June 2016 pending the outcome of their appeal. JPPNS allowed the postponement. Nevertheless, on 4.04.2016, PCCCI was notified that the Minister of Home Affairs had agreed to maintain the 10 cancellation of PCCCI’s registration. [5] Feeling dissatisfied and aggrieved with the decision, the Applicants who are consisting the President, Deputy President, Secretary and Treasurer of PCCCI filed an application for leave for judicial review 15 to High Court to challenge and quash the decision of the Registrar of Societies and the Minister of Home Affairs whom are the First and Second Respondent respectively. [6] The reliefs sought are as follows:- 20

To quash the decision of the First Respondent dated 4.04.2016 in cancelling and or maintaining its decision in cancelling the registration of PCCCI; 25

(ii) To quash the decision of the Second Respondent dated 4.04.2016 to agree to the decision of the First Respondent in cancelling and or maintaining its decision in cancelling the registration of PCCCI; 30 7

(iii) A declaration that the decision of the First Respondent 5 dated 4.04.2016 in cancelling and or maintaining its decison in cancelling the registration of PCCCI is void and of no effect;

(iv) A declaration that the decision of the Second 10 Respondent dated 4.04.2016 in agreeing to the decision of the First Respondent in cancelling and or maintaining its decison in cancelling the registration of PCCCI is void and of no effect; 15

Damages to be assessed;

(vi) All proceeding to be stayed until the determination of the judicial review or upon further order; and 20

(vii) Costs. [7] The grounds upon which the reliefs are sought are as follows:-

That the decisions of the first and Second Respondents 25 are unlawful, null and void;

(ii) That the decisions are irrational, unreasonable or unlawful in that the First and Second Respondent took into account irrelevant considerations and failed to take 30 into account relevant considerations in: 8

Failing to take into account that the Second 5 Respondent had allowed the PCCCI’s appeal against the decision of the First Respondent in cancelling the registration of PCCCI;

Failing to consider that pursuant to the PCCCI’s 10 successful appeal to the Second Respondent, PCCCI had resubmitted its Annual Account for 2013 to the Registrar of Societies (“ROS”) at Kota Kinabalu on 3.02.2015 which was in order and accepted by their ROS vide the then Penolong 15

The First Respondent did not consider the PCCCI’s case itself but acted under the dictation from or at 20 behest of the Second Respondent in cancelling the registration of PCCCI and the First Respondent failed to apply its discretion in this matter;

Failing to consider that the decision of the Second 25 Respondent to allow the appeal of PCCCI constitutes res judicata of the issue of the Financial Statement to be submitted to the First Respondent;

Taking into account the membership status of the 30 First Applicant and his qualification to be elected as 9 the President of PCCCI as a consideration in 5 cancelling the registration of PCCCI;

Failed to apply their minds to the evidence, facts, law and issues. 10 [8] The application for leave was granted in 19.05.2016. However, on 26.04.2017 the High Court affirmed the decision of the Second Respondent dated 4.04.2016. The decision of the High Court is at pages 25-47 of the Record of Appeal (ROA), Vol.1(A). 15 THE DECISION OF THE HIGH COURT [9] Having heard the submissions of the Applicant and the Respondents, the learned High Court judge (‘the learned judge”) had held as follows:- 20

that the purported impugned decision dated 4.04.2016 (Exhibit YKT-20) is the decision of the 2nd Respondent eventhough the letter was signed by the Penolong Pendaftar Pertubuhan Malaysia whose role was to 25 convey the decision of the 2nd Respondent, i.e. to deregister PCCCI (See at pages 36-37, ROA, Vol.1(A)).

(ii) The learned judge also held that the information required by the Jabatan Pendaftaran Pertubuhan Negeri Sabah 30 was the 2013 Financial Statement to be signed by the 2012 AGM as provided under the Rule 13(2) of the 10 Rules and Constitution of PCCCI (Exhibit YKT-2) (See at 5 page 38, ROA, Vol.1(A)).

(iii) Submitting the 2013 Financial Statement prepared and signed by the new auditor contravenes the Rules and Constitution of PCCCI. There is no power from the Rules 10 and Constitution of PCCCI that gives power to the Committee to appoint a new auditor to audit the Financial Statement by way of a resolution passed during the Committee Meeting (See at pages 38-39, ROA, Vol.1(A)).

(iv) Since the supreme authority of PCCCI is vested in a general meeting of the members, the appointment of a new auditor has to be done during an Ordinary General Meeting, an AGM or EGM and not through a Committee 20 Meeting. The new auditor appointed was unlawful (See at page 39, ROA, Vol.1(A)).

The Appellants had clearly did not comply with the condition imposed by the Second Respondent through 25 its letter dated 20.01.2015. As such, it cannot be said that the decision of the Second Respondent to maintain the order for deregistration to be irrational (See at page 39, ROA, Vol.1(A)). 30 11

(vi) The 2013 Financial Statement must be signed by the 5 Honorary Auditors appointed during the 2012 AGM. The Annual Account for 2013 which was submitted on 3.02.2015 it cannot stand as the appointment of the new auditor was unconstitutional (See at page 40, ROA, 10

(vii) No proof by the Appellants that the First Respondent had acted under the dictation or at the behest of the Second Respondent, and that the First Respondent had failed to apply its discretion in this matter. Firstly, the 15 decision complained on 4.04.2016 was made by the Second Respondent and not the First Respondent. The First Respondent’s decision was made through the letter dated 15.08.2014 in which the Appellants have not sought to review in this judicial review proceeding (See 20 at page 41, ROA, Vol.1(A)).

(viii) The argument on res judicata was wrongly taken as it is only applicable when a matter has been decided judicially. Unlike this present case, it was an 25 administrative decision in nature (See at page 42, ROA,

(ix) The First Appellant’s membership status and his qualification to be elected as President of PCCCI were 30 never a consideration in the decision making process of 12 the Second Respondent. There has been no mention of 5 the same in any of the Second Respondent’s correspondence with PCCCI (See at page 42, ROA,

The decision on 4.04.2016 is the decision by the Second 10 Respondent and not the First Respondent. As such the argument to suggest that the First Respondent had deregistered the PCCCI based on the approval by the Second Respondent (See at pages 42-43, ROA, 15

(xi) The doctrine of legitimate expectation does not apply in this case as the Appellants had failed to comply with the condition imposed i.e. to submit the 2013 Financial Statement with the audited and signed by the Honorary 20 Auditors appointed during the 2012 AGM. Further, the appointment of the new auditor was unconstitutional and any Financial Statement prepared by the said new auditor would be bad in law (See at pages 43-44, ROA, 25

(xii) The Respondents had given ample time to Appellants to make the necessary arrangements to overcome their problem with the Honorary Auditors. In fact, extensions were even accorded to the Appellants. And yet, the 30 Appellants had chosen to flout out their own Rules and 13 Constitution. It was the Appellants own undoing that led 5 them to be deregistered (See at page 44, ROA,

(xiii) The appeal allowed by the Second Respondent on the ground that certain conditions need to be complied with 10 by the Appellants, which they have failed to do so. The Second Respondent cannot be estopped from maintaining the decision to deregister PCCCI in view of the PCCCI’s failure to comply the direction of the Second Respondent (See at page 45, ROA, Vol.1(A)).

(xiv) No proof to show that the Second Respondent had taken into consideration on the First Appellant’s status of membership and qualification to be elected as President of PCCCI. Based on that, this submission is 20 misconceived (See at page 46, ROA, Vol.1(A)).

(xv) In the circumstances, the learned judge affirmed the decision of the Second Respondent dated 4.04.2016 and dismissed the Encl-1 with costs of RM6,500.00 and 25 allocator fee 4% (see at page 47, ROA, Vol.1(A)). THE GROUNDS OF APPEAL [10] Before us the grounds forwarded by the Appellants in gist are as 30 follows: 14

That it is an error to hold that the decision was made by 5 the Second Respondent and that the First Respondent merely conveyed the decision of the

That it is an error to hold that the information required by 10 the Jabatan Pendaftaran Pertubuhan Negeri Sabah was the Financial Statement for the year ended 31.12.2013 to be signed by the Honorary Auditors of PCCCI, because the said Honorary Auditors had refused to audit and sign it despite numerous requests to obtain their 15 services;

That the PCCCI’s appeal to the Second Respondent under s.18(i) of Societies Act 1966 was allowed based on another ground i.e. the First Respondent refusal to 20 approve an auditor appointed by PCCCI. Therefore, the 2013 Financial Statement was no longer an issue;

That the First Respondent’s decision to require the PCCCI to submit the 2013 Financial Statement 25 tantamount to overriding and interfering the Second Respondent’s decision to allow the PCCCI’s appeal;

That the PCCCI AGM on 16.03.2014 is supreme when approving the Accounts signed by the new Auditor. No 30 15 need to emphasis the validity of the appointment of the 5 new Auditor;

That the importance of the First Respondent’s Affidavit to state the factors or on what basis or grounds the First Respondent override or interfered with the Second Respondent’s act in allowing the PCCCI’s appeal;

That the absence of the First Respondent’s affidavit as to the non-compliance of the condition imposed by the Second Respondent when allowing the PCCCI’s appeal, had put the Appellants in the dark;

That the First Respondent’s decision to set the same condition i.e. on the 2013 Financial Statement again after the appeal was allowed by the Second Respondent contravenes s.18 of the Act which states that the 20 Minister’s decision should be final;

That the Second Respondent has no discretionary power to reverse his decision made in respect of s.18 of the Act;

That it is an error to hold that the submitting the 2013 Financial Statement contravenes the Rules and Constitution of the PCCCI given that it has been approved in the AGM on 16.03.2014; 30 16

That it is an error to hold that the Appellants and PCCCI 5 did not comply with the conditions of the Second Respondent in its letter dated 20.01.2015 and therefore the Second Respondent’s decision is rational;

That the Annual Accounts for 2013 of PCCCI was signed by the new Auditor of PCCCI and accepted by Tuan 10 Matthew of the First Respondent on 3.02.2015 after the successful appeal by PCCCI to the Second Respondent. It was only 4 months later i.e. on 4.06.2015, Tuan Nelbon as the new officer of the First Respondent sent a letter requiring the PCCCI to furnish the 2013 Financial 15

That it is an error to hold that the doctrine of legitimate expectation does not apply as the Appellants had failed to comply with the conditions imposed by the Second 20 Respondent i.e. to submit the 2013 Financial Statement, because the Second Respondent had allowed the PCCCI’s appeal on the ground that it had failed to obtain the services by the Honorary Auditors; 25

That the PCCCI did not willfully contravene its own Rules and Constitution within the meaning of s.13(a)(c)(iv) of the Act as PCCCI when the Honorary Auditors had refused to audit and sign its Annual Accounts which were passed and adopted in the AGM; 30 17

That the Respondents are estopped by the Second 5 Respondent’s conduct in allowing PCCCI appeal and again require the PCCCI to submit the 2013 Financial

That it is an error to affirm the decision of the Second Respondent dated 4.04.2016 and dismissing the Encl-1 10 with costs. OUR DECISION [11] We heard the Appellants’ submission and the Respondents’ 15 submissions as well as reading their written submissions filed herein. As we needed time to consider the appeal, we adjouned our decision to a date to be fixed. [12] After reading the Records of Appeal and having considered the 20 submissions of the Appellants and the Respondents, it is our unanimous decision that the Appellants’ appeal has no merit. The Appeal is dismissed with Costs of RM 10,000.00 to be paid to the Respondents subject to allocatur fees and deposit to be refunded to the Appellants. We give our reasons in the paragraphs below. 25 [13] At the onset the court is referred into the relevant provisions with regards to the judicial review application, i.e., Order 53 of the Rules of Courts 2012 as well as the Societies Act 1966. 30 18 [14] It is trite that Judicial Review is not an appeal from a decision but 5 a review on the manner in which the decision was made and the High Court is not entitled on an application for judicial review to consider the decision itself, on the merits of the facts, was fair and reasonable (See: Harpers Trading (M) Sdn Bhd v. National Union of Commercial Workers [1991] 1 MLJ 417 (Supreme 10 Court) and Michael Lee Fook Wah v. Minister of Human Resources Malaysia & Anor [1998] 1 MLJ 305). [15] The basis on which judicial review can provide a remedy had been expressed by Lord Diplock in Council of Civil Service 15 Unions and Others v Minister for Civil Service [1985] AC 374. This had been adopted by Justice K.C Vohrah in Booi Kim Lee v. Menteri Sumber Manusia & Anor [1999] 3 MLJ 515 at pages 521-522 under the following heads: 20

Illegality – where there is a dispute as to whether the decision maker has understood correctly the law that regulates his decision making power and given effect to it. 25

Irrationality – where there is a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. 30 19

Procedural impropriety – where there is a failure by an 5 administrative tribunal to observe procedural rules that are expressly laid down even where such failure does not involve any denial of natural justice. [16] In T Ganeshwaran-v-Suruhanjaya Polis DiRaja Malaysia & 1 10 lagi (2005) 3 CLJ 302, the Court of Appeal had utilised the principle used in Chief Constable of North Wales Police-v-Evans

3 All ER 141 which stated that – “Judicial Review is not an appeal from a decision but a 15 review of the manner in which the decision was made, and therefore the court is entitled on an application for judicial review to consider whether the decision itself was fair and reasonable. Judicial review is concerned, not with the decision, but with the decision-making process. Unless the 20 restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power”. [17] In the present case, it is not disputed that the decision maker i.e 25 the First Respondent is the government servant, his performance of duties is bound by the relevant statutes of law for the Public Servant. This is because, the rights and obligations of the public servant and the government have been prescribed by the law or the administrative regulations made by the Government, as has 30 been stipulated in the Government of Malaysia-v-Rosalind Oh 20 Lee Pek Inn (1973) 1 MLJ 222, at page 224, that the contract 5 between the public servant and the government is of a very special kind. Upon referring to the Indian Supreme Court in Roshan Lal-v-Union of India AIA (1967) SC 1889 it was said – “It is true that the origin of the Government Service is 10 contractual. There is an offer and acceptance in every case. But once appointed to his post or office, the Government Servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered 15 unilaterally by the Government… the hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of parties”. 20 [18] This would simply mean that, if there are prescribed manners provided under the written law or administrative rules and regulations, the details of the required procedures that needs to be followed, they must be complied with, and hence it is not the duty of the court to supplement the same. In the Federal Court 25 Case of Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumal [2001] 2 CLJ 548 whereby the decision of the Court of Appeal was upheld in Ganasan a/l Marimuthu-v-Public Service Commission & Anor (1998) 4 CLJ 331, it was stated that – 30 21 5 “….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… But that the Judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that 10 the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded. This is expressly applicable to steps of procedure..” [19] In the present case, the statutory provisions regarding the 15 impugned decision are Sections 13 and 18 of the Societies Act 1966 [Act 335]. [20] The First Respondent’s decision dated 15.08.2014 (“YKT-10”) to deregister the Appellants were made under Section 13(1)(c)(iv) of 20 the Act. Section 13 of Act 335 provides that: Cancellation and suspension

Subject to subsection (2), the Registrar may, in the following cases, cancel the registration of any society 25 registered under section 7 —

if the Registrar is satisfied —

(iv) that the society has willfully contravened any provision of this Act or of any regulation made thereunder or of any of its rules or that any 30 members of the society have habitually 22 contravened the provision of subsection 4(1) of 5 the Sedition Act 1948 [Act 15] by any acts or utterances to which paragraph 3(1)(f) of that Act applies;

Where the Registrar proposes to cancel the registration of 10 any registered society under paragraph (1)(c) the Registrar —

shall notify one or more of the office-bearers of the society of his intention to cancel the registration of the society; and 15

shall give him or them an opportunity to submit reasons in writing within thirty days from the date of the notification why the registration should not be cancelled. 20 [21] We are of the view that as far as the law is concerned, the powers of the Registrar to cancel the registration of the Appellants that has contravened its rules is clearly provided under Section 13 of Act 335. 25 [22] An appeal was lodged by PCCCI to the Second Respondent pursuant to Section 18 of Act 335 against the First Respondent’s decision dated 15.08.2014 (“YKT-10”). Section 18 of Act 335 which reads: 30 23 Appeals 5 Any local society, office-bearer or member of such local society or any other person who is aggrieved by the decision of the Registrar in any of the following cases —

cancellation of the registration of the society under 10 section 13;

refusal to approve an auditor or approving an auditor unacceptable to the society under subsection 14(4); 15 may, within thirty days from the date of the decision of the Registrar, appeal against the decision to the Minister; and the Minister whose decision shall be final may confirm, reject or vary the decision of the Registrar. 20 [23] The Second Respondent had considered and approved the Appellants’s appeal (Exhibit YKT-12) dated 20.01.2015. The original words of the approval are reproduced below - “2. Adalah dimaklumkan bahawa dengan kuasa yang 25 diperuntukkan kepada YB Menteri Dalam Negeri di bawah Seksyen 18, Akta Pertubuhan 1966, permohonan rayuan pendaftaran Dewan Perniagaan Dan Perindustrian Tionghua Putatan (Putatan Chinese Chamber of Commerce and Industry) telah DILULUSKAN DENGAN 30 SYARAT iaitu pihak tuan perlu mengemukakan Penyata 24 Tahunan dan maklumat yang diperlukan oleh Jabatan 5 Pendaftaran Pertubuhan Negeri Sabah dalam tempoh 60 hari daripada tarikh surat ini dikeluarkan. Namun yang demikian, jika pihak tuan gagal menghantar maklumat-maklumat tersebut dalam tempoh yang ditetapkan, maka pembatalan pendaftaran pertubuhan tuan adalah 10 dikekalkan.” [24] We noted that the Appellants’ appeal was approved with condition. It was a conditional approval. The Appellants were still required to submit the Annual Report and informations required 15 by the First Respondent within 60 days. We are of the view that since the approval was conditional approval, it is the duty of the Appellants to submit all information required by the First Respondent failing which the order of cancellation dated 15.08.2014 (“YKT-10”) would still be enforceable. 20 [25] By later dated 4.06.2015 (Exhibit “YKT-15”), the First Respondent wrote to the Appellants to re-submit the complete audited Financial Statement dated 31.12.2013 within 30 days. The Appellants had by their letter dated 3.02.2015 had submitted the 25 incomplete and unaudited Financial Statement ended for the year 31.12.2013 i.e without the signatures of the 2 Honourary Auditors appointed in AGM 2012. Since then there were correspondences between the Appellants and the First Respondent regarding the matter (See Exhibits “YKT-16” dated 25.06.2015, “YKT-17” dated 30 25

13.07.2015 and “YKT-18” dated 10.03.2016). However, on 5 4.04.2016, the First Respondent wrote to the Appellants to inform that after considering all the information and feedback from the Appellants, the Minister i.e the Second Respondent had agreed that the cancellation of the Appellants stands. 10 [26] For ease of reference the original words in the impugned letter dated 4.04.2016 (Exhibit “YKT-20”) stated the following - “2. Dukacita dimaklumkan bahawa setelah meneliti semula semua tindakan dan maklumbalas yang dikemukakan, YAB 15 Menteri Dalam Negeri telah BERSETUJU agar pembatalan pendaftaran pertubuhan terhadap Dewan Peniagaan dan Perindustrian Tionghua Putatan (Putatan Chinese Chamber of Commerece and Industry) DIKEKALKAN...... 20

.............................. Sekian dimaklumkan. ‘BERKHIDMAT UNTUK NEGARA’ 25 Saya yang menurut perintah, (NELBON TULIS MISSUN) PENOLONG PENDAFTAR PERTUBUHAN MALAYSIA NEGERI SABAH.” 30 [27] It is clearly stated that the order of cancellation of registration of the Appellants dated 15.08.2014 (“YKT-10”) stands. In other 26 words, by the said letter, it confirms that the Appellants remain 5 deregistered with effect from 15.08.2014. We referred back to the conditional approval given by the Second Respondent to the Appellants’ appeal dated 20.01.2015 (Exhibit YKT-12), the issuance of the impugned letter dated 4.04.2016 (Exhibit “YKT- 20”) means that the conditions stated in the letter dated 10 20.01.2015 (Exhibit YKT-12) had not been met or complied with by the Appellants. We are of the view that the appeal process under Section 18 of Act 335 had been completed of which the Minister i.e. the Second Respondent had made decision to confirm the decision of the Registrar and the decision is final. 15 [28] We are also of the view that as far as the law is concerned, the powers of the Minister to confirm the decision of the Registrar is clearly provided under Section 18 of Act 335. 20 NO MERIT IN THE APPEAL [29] The Appellants had submitted that it is an error on the learned judge’s decision to hold that the decision was made by the Second Respondent and that the First Respondent merely 25 conveyed the decision of the Second Respondent. In other words, the Appellants were saying that the decison made in the impugned letter dated 4.04.2016 is the decision of the First Respondent. We did not agree with the Appellants. We agreed with the learned judge and he was right in holding that the 30 27 decision impugned by the Appellants was made by the Second 5 Respondent. The learned judge had said this: “From the outset, I must state that the purported impugned decision dated 4.4.2016 (Exhibit YKT-20) is the decision of the 2nd Respondent even though the letter was signed by 10 the Penolong Pendaftar Pertubuhan Malaysia whose role was to convey the decision of the 2nd Respondent, i.e. to deregister PCCCI.” [Pages 36-37, ROA, Vol.1(A)] [30] The Appellants in the judicial review application are inter alia 15 seeking:

An order of certiorari to quash forthwith the First Respondent’s decision dated 4.04.2016 in cancelling and/or maintaining its decision in cancelling the 20 registration of PCCCI;

(ii) An order of certiorari to quash forthwith the Second Respondent’s decision dated 4.04.2016 to agree to the decision of the First Respondent in cancelling and/or maintaining its decision in cancelling the registration of 25 PCCCI;

(iii) A declaration that the First Respondent’s decision dated 4.04.2016 in cancelling and/or maintaining its decision in cancelling the registration of PCCCI is void and of no effect; and 30 28

(iv) A declaration that the Second Respondent’s decision 5 dated 4.04.2016 in agreeing to the decision of the First Respondent in cancelling and/or maintaining its decision in cancelling the registration of PCCCI is void and of no effect. 10 [31] It is obvious from the wording of the Prayers that:

The First Respondent allegedly vide letter dated 4.04.2016 cancelled and/or maintained his decision in cancelling the registration of PCCCI; and 15

(ii) The Second Respondent allegedly vide letter dated 4.04.2016 agreed to the decision of the First Respondent in cancelling and/or maintaining his decision in cancelling the registration of PCCI. 20 [32] It is our finding that the impugned decision is that one made on 4.04.2016 whereby PCCCI was informed that the cancellation of PCCCI’ registration to be maintained/confirmed. It is very clear that it was the Second Respondent and not the First Respondent who on 4.04.2016 decided that the cancellation of PCCCI’s 25 registration to be maintained / confirmed pursuant to Section 18 of Act 335. It was never stated therein in “YKT-20” that the First Respondent maintained his decision in cancelling the registration of PCCCI and that the Second Respondent agreed to it. The wording of the impugned letter speaks for itself. The First 30 29 Respondent’s decision as to the cancellation of PCCCI’s 5 registration had already been made earlier vide an Order dated 15.08.2014 (“YKT-10”) and no fresh decision for cancellation was ever made by the 1st Respondent vide “YKT-20” dated 4.04.2016. [33] Therefore, the First Respondent vide a letter dated 04.04.2016 10 (“YKT-20”) from Penolong Pendaftar Pertubuhan Negeri Sabah merely / only conveyed the decision of the Second Respondent to PCCCI. In fact, it was confirmed by the Second Respondent in Paragraph 24 of the Respondents’ Affidavit in Opposition (Encl-10 at page 245 of ROA, Vol.2(B)) that Exhibit “YKT-20” was issued 15

9.03.2014 (Exhibit “YKT-9). By letter dated 15.08.2014, the First 5 Respondent cancelled the registration of PCCCI (Exhibit “YKT- 10”). [38] We turned back to the approval given by the Second Respondent to the Appellants in their appeal under section 18 of Act 335 was 10 subject to PCCCI submitted information required by the First Respondent “DILULUSKAN DENGAN SYARAT iaitu pihak tuan perlu mengemukakan Penyata Tahunan dan maklumat yang diperlukan oleh Jabatan Pendaftaran Pertubuhan Negeri Sabah....jika pihak tuan gagal menghantar maklumat- 15 maklumat tersebut dalam tempoh yang ditetapkan, maka pembatalan pendaftaran pertubuhan tuan adalah dikekalkan.” On 4.06.2015 (Exhibit “YKT-15”), the First Respondent wrote to the Appellants to re-submit the complete audited Financial Statement for the year ended 31.12.2013 within 30 days. 20 [39] In view of the facts, the learned judge’s decision is not erroneous when he held that the information required by the Jabatan Pendaftaran Pertubuhan Negeri Sabah was the 2013 Financial Statement to be signed by the 2012 AGM as provided under the 25 Rule 13(2) of the Rules and Constitution of PCCCI. Further, we agreed with the learned judge that submitting the 2013 Financial Statement prepared and signed by the new auditor contravenes the Rules and Constitution of PCCCI. There is no power from the Rules and Constitution of PCCCI that gives power to the 30 32 Committee to appoint a new auditor to audit the Financial 5 Statement by way of a resolution passed during the Committee Meeting. It is correct finding of the learned judge that since the supreme authority of PCCCI is vested in a general meeting of the members, the appointment of a new auditor has to be done during an Ordinary General Meeting, an AGM or EGM and not through a 10 Committee Meeting. [40] Be that as it may, we found that the Appellants had clearly did not comply with the condition imposed by the Second Respondent through its letter dated 20.01.2015. As such, it cannot be said that 15 the decision of the Second Respondent to maintain the order for deregistration to be irrational. We agreed with the finding of the learned judge in his grounds of judgment at page 39, ROA, 20 [41] We also agreed with the learned judge that the 2013 Financial Statement must be signed by the Honorary Auditors appointed during the 2012 AGM. The Annual Account for 2013 which was submitted on 3.02.2015 it cannot stand as the appointment of the new auditor was unconstitutional. 25 [42] We had considered the Appellants’ case as substantially deposed and envisaged in Paragraphs 11, 13, 14, 16, 21, 22 and 23 of the Appellants’ Affidavit Verifying Facts Relied On (Encl-3) as well Exhibits attached thereto and paragraph 6 of the Appellants’ 30 33 Affidavit in Reply (Encl-11), PCCCI’s action in appointing the new 5 auditor to audit and certify Financial Statement for the year ended 31.12.2013 was allegedly due to:

The difficulty faced by PCCCI in getting / contacting the Honorary Auditors to audit and sign its Financial 10

The availability of the Honorary Auditors appeared uncertain and several attempts to contact them proved unsuccessful and in vain;

Due to some disagreements with the existing Committee member, the ex-President resigned on 19.02.2014, the two (2) Honorary Auditors then opted not to answer all calls from PCCCI and they did intentionally;

The Honorary Auditors knew it very well that by not signing the Account the challenging party would be unable to submit the Financial Report in time to the then coming AGM and that would make PCCCI in trouble; 25 and

The said two (2) Honorary Auditors were the cause of PCCCI’s accounts not being audited as the said Auditors had repeatedly refused despite repeated requests by 30 PCCCI to perform their duty to audit PCCCI’s accounts 34 and in fact abdicated their duties and responsibilities in 5 respect of the said PCCCI’s account. [43] Firstly, we agreed with the Respondents that the above reasons amount to very serious allegations against the Honorary Auditors and the crux of PCCCI’s deregistration was founded on PCCCI’s 10 failure to submit its Financial Statement which should have been signed by the Honorary Auditors. Secondly, in the absence of any explanation vide any affidavit from the Honorary Auditors, this Court will be in no position to judiciously/fairly determine or assume that the appointed Honorary Auditors had been lawfully 15 by-passed and replaced by an outsider who had signed for the Honorary Auditors and Thirdly, the Appellants had failed to serve all the cause papers of this substantive judicial review application on the Appointed Honorary Auditors i.e. Ling Sei Ngiik and Ong Kok Lim and / or had failed to name them as parties to the action 20 despite that they were persons directly affected by the success of the Application (See: Order 53 Rule 4 of the Rules of Court (ROC) 2012). [44] Consequential to that, the Honorary Auditors had been deprived 25 of their rights and /or opportunities if they so wished, to apply to be joined as parties to this application for judicial review and to be heard in opposition to the application and to rebut any serious allegations against them and hence, the Appellants’ serious allegations against the Honorary Auditors must be treated with 30 35 suspicion and caution in particular regarding their alleged 5 intentional failure to audit and sign the financial account. [45] We agreed with the Respondents’ submission that the refusal by the Auditors to audit the 2013 Financial Statement despite numerous requests to obtain it, shall not be made as an excuse 10 by the Appellants in order to comply with the condition imposed on PCCCI by the Respondents. Therefore, the learned judge was right in not considering the allegation against the Honorary Auditors in not auditing and signing the 2013 Financial Statement as required by the First Respondent. 15 [46] The Appellants had insisted that since the Honorary Auditors had refused to audit and sign the PCCCI’s Financial Statements leading to the deregistration of PCCCI by the First Respondent and PCCCI’s appeal being allowed by the Second Respondent, it 20 is a foregone conclusion that it was not possible for the Appellants to obtain an explanation / affidavit from the Honorary Auditors. We are of the view that even though the PCCCI’s appeal to the Second Respondent was allowed; it was not a factor to change the condition imposed i.e. the 2013 Financial Statement is still 25 needed to be furnished by the Appellants. We agreed with the learned judge on this issue when the learned judge held that - “…it is understood from the previous correspondence from the Penolong Pendaftar Pertubuhan Negeri Sabah namely 30 36 letters dated 18.7.2014 and 4.6.2015 that the information 5 required by the Jabatan Pendaftaran Pertubuhan Negeri Sabah was the Financial Statement for the year ended 31.12.2013 to be signed by the Honorary Auditors of PCCCI who were appointed pursuant to the 2012 AGM as provided by Rule 13(2) of the Rules and Constitution of PCCCI 10 (Exhibit YKT-2).” [See: page 38, ROA, Vol.1(A)]. [47] We had read the judgment of the learned judge and we are satisfied that the learned judge had examined whether the Appellants did in fact comply with the conditions set out by the 15 Second Respondent vide its letter dated 20.01.2015 (Exhibit YKT- 12). As alluded to earlier the conditions were that PCCCI submits its Annual Return and information as required by the Jabatan Pendaftaran Pertubuhan Negeri Sabah within sixty (60) days from 20.01.2015 and that PCCCI was advised to liaise with the said 20 Jabatan for further action failing which, the First Respondent’s decision to deregister PCCCI would maintain. [48] There is no merit in the Appellants’ argument that the 2013 Financial Statement was no longer an issue, since the PCCCI had 25 not been fulfilling the required information needed by the Respondents. [49] We agreed with the Respondents’ submission that in view of the facts in the present case, the First Respondent’s decision to 30 37 require the Appellants to submit the 2013 Financial Statement will 5 not in any way overriding or interfering the Second Respondent’s decision. We are of the view that in the circumstances of the case, there is no need for the First Respondent’s affidavit on what factors or basis to override or interfere with the Second Respondent’s decision or as to the non-compliance of the 10 condition imposed by the Second Respondent. Ultimately, what was required was the same condition i.e. the Appellants to furnish the 2013 Financial Statement even after the appeal. The request was not an act of contravening section 18 of Act 335 or the Second Respondent had reversed his decision on the Appellants’ 15 appeal. We agreed with the Respondent that there is nothing to stop the Respondents to again imposed the Appellants to submit its 2013 Financial Statement despite the Appellants’ appeal. [50] The alleged same condition imposed by the First Respondent was 20 never a fresh condition. It was the same condition in which the Appellants still had failed to fulfill. The Second Respondent’s decision to allow the appeal has got nothing to do or did not refresh the same condition i.e. that the Appellants still needed to furnish the 2013 Financial Statement. 25 [51] What was clear to us is that the PCCCI did not comply with the condition imposed by the Respondents i.e. to have that 2013 Financial Statement to be signed by the Honorary Auditors appointed pursuant to the 2012 AGM as provided by Rule 13(2) of 30 38 the Rules and Constitution of PCCCI. We agreed with the learned 5 judge’s finding that submitting the 2013 Financial Statement prepared and signed by the new auditor contravenes the Rules and Constitution of PCCCI. We are of the same view that the PCCCI’s Annual Account for 2013 which was submitted to the ROS, Kota Kinabalu on 03.02.2015 was not in order as the 10 Financial Statement for the year ended 31.12.2013 was not signed by the Honorary Auditors as required by Rule 13(2) of PCCCI’s Rules and Constitution. The PCCCI is bound by its Rules and Constitution and the appointment of the new auditor was contrary to PCCCI’s Constitution and Section 14 of Act 335. 15 It fell short of satisfying the requirements and / or conditions imposed by the Second Respondent. [52] Provisions regarding PCCCI’s Committee could be found under Rule 9 of PCCCI’s Constitution (“YKT-2”). The relevant portions of 20 Rule 9 reads as follows: “(4) The function of the Committee is to organize and supervise the day-to-day activities of the Chamber and to make decisions on matters affecting its running 25 within the general policy laid down by the general meeting. The Committee may not act contrary to the expressed wishes of the general meeting without prior reference to it and shall always remain subordinate to the general meeting. It shall furnish a report to each 30 39 Annual General Meeting on its activities during the 5 previous two years.

The Committee shall meet at least once in every three

months, and seven (7) days’ notice of each meeting SHALL be given to the members ….” 10 [53] We found nowhere mentioned expressly nor specifically under Rule 9 of “YKT-2” that PCCCI’s Committee is empowered to pass a resolution in any Committee Meeting for the appointment of any new auditor to audit PCCCI’s Financial Statement. As clearly 15 provided under Rule 15 of PCCCI’s Constitution (“YKT-2”), the supreme authority of the Chamber is vested in a general meeting of the members. The crucial decision as to the appointment of the new auditor contrary to the express provision of Rule 13 should have been made through an Ordinary General Meeting or 20 Extraordinary General Meeting (EGM), but not through a Committee Meeting (without prior reference to the general meeting as laid down by Rule 9(4)). Therefore, any resolution regarding that appointment of the new auditor passed through the Committee Meeting was considered as void ab initio and it would 25 have no legal effect at all though it was allegedly passed and adopted later on in the AGM. The learned judge was correct when he held that - “Submitting the 2013 Financial Statement prepared and 30 signed by the new auditor contravenes the Rules and 40 Constitution of PCCCI. I do not find anywhere in the Rules 5 and Constitution of PCCCI that gives the Committee the power to appoint a new auditor to audit the Financial Statement of PCCCI by way of a resolution passed during a Committee Meeting. I agree with the SFC that since the supreme authority of PCCCI is vested in a general meeting 10 of the members, the appointment of a new auditor has to be done during an Ordinary General Meeting, an AGM or an Extraordinary General Meeting and not through a Committee Meeting. This is clearly so provided under Rule 15(1) of the Constitution. Given that the new auditor was 15 appointed during a Committee Meeting renders the appointment unlawful. From the above, it is clear that the Applicants did not comply with the conditions of the 2nd Respondent in its letter 20 dated 20.1.2015. As such, it cannot be said that the 2nd Respondent’s decision to maintain the order for deregistration of PCCCI to be irrational.” (See: Pages 38- 39, ROA, Vol.1(A)] 25 [54] We reiterated the facts that at any material time, no prayer was ever sought to quash the First Respondent’s decision in cancelling the registration of PCCCI through the Order dated 15.08.2014 (“YKT-10”). There is no fresh decision under Section 13 of Act 335 (cancellation of registration) was ever made by the 30 41 First Respondent vide letter dated 4.04.2016 (“YKT-20”) as it was 5 already made earlier on 15.08.2014. It was the Second Respondent and not the First Respondent who on 4.04.2016 decided that the cancellation of PCCCI’s registration to be maintained/confirmed pursuant to Section 18 of Act 335. The First Respondent’s decision dated 15.08.2014 (“YKT-10”) in cancelling 10 the registration of PCCCI was not made under dictation from or at behest of the Second Respondent. By referring to the First Respondent’s Order dated 15.08.2014 (“YKT-10”), there was nothing to indicate that it was done under the dictation from or at behest of the Second Respondent and it was made by applying 15 the First Respondent’s own discretion pursuant to Section 13(1)(c)(iv) of Act 335. [55] In the circumstances of the case, in our view since there was no issue of a fresh decision or the same condition the doctrine of res 20 judicata does not apply in the present case. The doctrine is defined as an issue that has been definitely settled by judicial decision. At any material time, the Second Respondent had never acted in any judicial capacity but his action was purely administrative pursuant to his statutory powers under Section 18 25 of Act 335. [56] We found the Appellants and PCCCI in the present case did not comply with the conditions of the Second Respondent in its letter 42 dated 20.01.2015 and therefore the decision by the Second 5 Respondent is rational. [57] One of the grounds submitted by the Appellants is that the doctrine of legitimate expectation applies in the present situation. We did not agree with the Appellants. The doctrine of legitimate 10 expectation does not apply in the Appellants’ case. Firstly, PCCCI had failed to comply with the condition imposed by the Second Respondent and it failed to submit PCCCI’s Financial Statement for 2013 which should have been signed and audited by the Honorary Auditors who were appointed pursuant to the AGM 15 2012 as required by Rule 13(2) of PCCCI’s Constitution. Secondly, the appointment of the new auditor was in contravention to PCCCI’s Constitution and Section 14 of Act 335 which empowers the Registrar to order any registered society to furnish him in writing with duly audited accounts. In North East 20 Plantations Sdn. Bhd. v. Pentadbir Tanah Daerah Dungun & 1 Lagi [2011] 4 CLJ 729 at page 733, the Federal Court held that legitimate expectation cannot and should not override the express statutory power vested in the State Authority. 25 [58] We also agreed with the Respondents’ submission by referring to the Federal Court case of Zakiah bte Ishak v. Majlis Daerah Hulu Selangor Darul Ehsan [2005] 6 MLJ 517 where Arifin Zakaria FCJ at page 524 held that in law for legitimate expectation to arise there must be evidence of a promise or 30 43 undertaking made by the Second Respondent to that effect i.e. 5 the cancellation of PCCCI’s registration would not be maintained/confirmed. There was no such evidence before this Honorable Court. Thus, it is our view that the Appellants’ claim for breach of legitimate expectation was wholly unsustainable. 10 [59] In Dr. Amir Hussein Bin Baharuddin v. Universiti Sains Malaysia [1989] 3 MLJ 298, it was held at pages 300-301: ‘Reasonableness’ connotes that the expectation must be objectively justified. A subjective hope is therefore not 15 enough … However, its use has been discouraged recently by the House of Lords … The chief reason advanced being that some expectations, although they might well be entertained by reasonable persons will not necessarily have consequences to which effect will be given in public law … 20 Furthermore, the possibility that they may be some reasonable expectations which are not ‘legitimate’ has emerged with the extension of the concept of legitimate expectation into areas other than procedural fairness; for example, standing to bring an application for judicial 25 review … [60] It is our view that it was wrong and misconceived for the Appellants to state that the said decision of the 2nd Respondent was in breach of their legitimate expectation given the express 30 provision under Section 18 of Act 335 that such Second 44 Respondent’s final decision was within the statutory discretionary 5 power of the Second Respondent. We agreed with learned judge and he had correctly held that the doctrine of legitimate expectation does not apply in this case as the Applicants had failed to comply with the condition imposed i.e. to submit the 2013 Financial Statement with the audited and signed by the Honorary 10 Auditors appointed during the 2012 AGM. Further, the appointment of the new auditor was unconstitutional and any Financial Statement prepared by the said new auditor would be bad in law (See at pages 43-44, ROA, Vol.1(A)). 15 [61] We had read through the Records of Appeal entirely and we are satisfied that there is nothing to suggest nor to show that the Respondents’ decisions/actions were tainted with illegality or irrationality or procedural impropriety. We are satisfied that the Respondents had strictly acted within the ambit of their 20 jurisdiction/power and had followed accordingly the provisions of law in particular the Societies Act 1966 [Act 335]. CONCLUSION 25 [62] In conclusion, we found that the Respondents had:

exercised their powers and/or actions accordingly in accordance with the policy, object and intention of the Societies Act 1966 [Act 335]; 30 45

(ii) arrived at their powers and/or actions which were 5 substantially fair and in accordance with the law and they were done in good faith and were not an abuse of power; and

(iii) arrived at their powers and/or action which were not ultra 10 vires Act 335 and the Respondents had acted accordingly within the ambit of law, powers, duties and jurisdiction and as such, the Impugned Decision was valid and not a nullity. 15 [63] For the foregoing reasons, it is our unanimous decision that the Appellants’ appeal is dismissed with costs of RM10,000.00 subject to allocator fee. Deposit to be refunded to the Appellants. Dated this 30th October, 2018 20 Sgd KAMALUDIN MD. SAID 25 JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 30 46 Parties 5

Datuk Lawrence Thien and Encik Nelson Sim for the Appellants (Messrs Chau & Thien) 10

Encik Andi Razalijaya bin A Dadi (SFC) and Cik Dorine Patrick (FC) for the Respondent (Jabatan Peguam Negara, Negeri Sabah)