Badan Peguam Malaysia v 1. ) Menteri Sumber Manusia (WA-25-34-01/2022)

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1 Pihak-pihak: Bagi Pihak Pemohon: Hayden Tan Chee Khoon Bagi Pihak Responden Putatif 1: FC Mohammad Sallehuddin Bagi Pihak Responden Putatif 2: Mr Premshanger & Ms Syafiqah Sofian DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN NO.: WA-25-34-01/2022 Dalam perkara Akta Pembangunan Sumber Manusia Berhad 2001 (‘Akta PSMB 2001’); Dan Dalam perkara Perintah 2021 Pembangunan Sumber Manusia Berhad (Pindaan

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Jadual Pertama) (‘Perintah 2021’); Dan Dalam perkara Akta Profesion Undang-Undang 1976 (‘APU 1976’); Dan Dalam perkara komunikasi bertulis daripada Pemohon (dan lain-lain) kepada Responden (- Responden) dari 2.4.2021 hingga 27.12.2021 (‘Komunikasi Bertulis’); Dan Dalam perkara kecuaian, kegagalan dan/atau peninggalan Responden-Responden untuk memberikan apa-apa balasan yang wajar dan bermakna kepada Komunikasi Bertulis tersebut (‘Peninggalan’); Dan Dalam perkara Akta Mahkamah Kehakiman 1964 (‘AMK 1964’), khususnya seksyen 23, 25 dan/atau jadualnya; Dan Dalam perkara Kaedah-Kaedah Mahkamah 2012, khususnya Aturan-Aturan 53 dan/atau 92 daripadanya. ANTARA BADAN PEGUAM MALAYSIA ...PEMOHON DAN 1. MENTERI SUMBER MANUSIA 2. PEMBANGUNAN SUMBER MANUSIA BERHAD (Syarikat No.: 200101009387 (545143-D)) …RESPONDEN JUDGMENT [1] This application for judicial review concerns the interpretation of the Pembangunan Sumber Manusia Berhad Act 2001 (“the Act”). The Act is to provide for the imposition and collection of a human resources development levy for the purposes of promoting the training and development of employees, apprentices and trainees. [2] The applicant is the Malaysian Bar. [3] Under the Act, the 2nd respondent, the Pembangunan Sumber Manusia Berhad, is mandated to collect a human resources development levy, which is equivalent to 1% of the employee's monthly wage from the employers with 10 or more Malaysian employees in the industries specified in Part I of the First Schedule of the Act. [4] Under s 13(1) of the Act, the employers so specified are required to register themselves with the putative 2nd respondent. [5] On 26.2.2021, the Minister of Human Resources, who is the 1st putative respondent herein (“the Minister”), in the exercise of his powers under s 49 of the Act, made the Pembangunan Sumber Manusia Berhad (Amendment of First Schedule) Order 2021 (“the 2021 Order”). The 2021 Order expanded the scope of the specified industries to over 40, including “Professional”. [6] The 2021 Order came into operation on 1.3.2021. [7] According to the Malaysian Bar, the inclusion of the word “Professional” in the 2021 Order raises the question of whether the Act applies to its members. This is so since the Malaysian Bar is of the view that the promotion and training development of advocates and solicitors is governed by the Legal Profession Act 1976 (“LPA”). [8] The Malaysian Bar is mandated under s 42 of the LPA “to maintain and improve the standards of conduct and learning of the legal profession in Malaysia”. [9] Pursuant to the said provision, during its 66th Annual General Meeting on 10.3.2012, the Malaysian Bar passed a resolution to implement a mandatory Continuing Professional Development Scheme (“CPD Scheme”) for the purpose of training and development of lawyers. [10] Under the CPD Scheme, it would be mandatory for the members of the Malaysia Bar to attend CPD activities. The Judicial Review [11] Aggrieved, the Malaysian Bar commenced this application for leave for judicial review inter alia, for a declaration that the Act, as amended by the 2021 Order, is not applicable to the legal profession, law firms, advocates and solicitors since they are governed by the LPA. The Malaysian Bar also seeks a declaration that on a proper interpretation of the Act, the Act defers to the LPA so far as the legal profession is concerned. Enclosure 10: The application for an Extension of Time [12] In this application in Encl 10, the Malaysian Bar is seeking an extension of time until 24.1.2022, such that the ex parte application for judicial review dated 24.1.2022 is treated as having been filed within the time specified under O 53 of the Rules of Court, 2020. [13] However, according to the Malaysian Bar, this application is in the nature of ex abundanti cautela, in an abundance of caution, without prejudice to the Malaysian Bar’s position that the application for leave for judicial review was filed within time. [14] The application in Encl 10 is made under O 53 r 3(7) of the ROC and supported by the affidavit of Shahareen Begum bt Abdul Subhan in Encl 8 (“AIS-8”). Puan Shahareen is the then Secretary of the Malaysian Bar. [15] In her AIS-8, Puan Shahareen affirmed that since 2.4.2021, the Malaysian Bar had been in communication with the Minister and the putative 2nd respondent in its attempt to resolve the applicability of the Act and the 2021 Order on the legal profession. The issues raised by the Malaysian Bar in the continuing discussions with the putative respondents are as follows: (a) The Malaysian Bar suggested that the Act does not apply to the legal profession in view of the mandatory CPD Scheme. (b) In view of the CPD Scheme, the promoting, training and development of employees as envisaged by the Act, is, insofar as the legal profession is concerned, redundant. (c) The Malaysian Bar requested to meet the putative respondents to have a dialogue and possible establishment of a working group between the parties to study the applicability of the Act. (d) In the interim, the Malaysian Bar also requested for the Levy and Registration requirements imposed by the Act as amended by the 2021 Order be deferred until the end of 2022 insofar as the legal profession is concerned. (e) However, according to Puan Shahareen, the putative respondents had neither rejected nor approved the Malaysian Bar’s request leaving the Malaysian Bar in a state of uncertainty. (f) The Malaysian Bar then approached six other professional bodies (“the Professional Bodies”) that include the Malaysian Institute of Accountants (“MIA”), Institution of Engineers, Malaysia (“IEM”) and Pertubuhan Akitek Malaysia (“PAM”). (g) By a joint letter 27.10.2021 (“the joint-letter”), the Professional Bodies wrote to the Minister, setting out their joint position that the Act should not be applicable to their respective members. (h) Unfortunately, neither the Minister nor the putative 2nd respondent had responded to the request. [16] The long and short of the Malaysian Bar’s plea for the extension of time is that it is a diligent litigant who acted “promptly” and should not be penalised for trying to resolve the issue by non-litigious means. The Putative Respondents’ Response [17] The Minister did not file any affidavit in reply to the application made by the Malaysia Bar. I will address this issue in the later part of this judgment. [18] The putative 2nd respondent objected to this application for an extension of time and filed an affidavit in reply through Shahul Hameed bin Shaik Dawood in Encl 16 (“AIR-16”). Encik Shahul is the CEO of the putative 2nd respondent. [19] In essence, the putative 2nd respondent asserted that at all material times, the Malaysian Bar, through its separate letters to the putative respondents, had referred to the deferment of the implementation and the collection of the levy by the putative 2nd respondent. One of the letters, which was dated 4.5.2021 and addressed to the putative 2nd respondent, states as follows: Sementara itu, Badan Peguam Malaysia amat berharap semoga pihak Kementerian Sumber Manusia dapat mempertimbangkan permohonan kami untuk menangguhkan pendaftaran PSMB dan bayaran levi PSMB firma guaman di bawah industri perundangan sehingga hujung tahun 2022. Kami ingin turut memohon maklum balas dan pengesahan bahawa pendaftaran PSMB serta pembayaran levi akan diketepikan sehingga hujung 2022. [20] As to the alleged state of uncertainty of the Malaysian Bar, Encik Shahul, in para 13 of his AIR-16, asserted for the purpose of the Malaysian Bar having a clear understanding of the matter, the putative 2nd respondent had on 31.5.2021 issued a letter to the Malaysian Bar (“the Final Letter”) informing the latter of the decision made by the Minister to exempt the applicant from levy payments commencing from 1.6.2021 till 31.12.2021 provided that all law firms should register with the putative 2nd respondent before 1.7.2021. [21] The putative 2nd respondent’s complaint is that the Malaysian Bar took almost seven months to join forces with the Professional Bodies in issuing the joint-letter dated 27.12.2021 “seeking demands that warranted no reply for an issue already decided upon”. The Analysis [22] Learned counsel for the Malaysian Bar relied on the Singapore Court of Appeal case of Per Ah Seng & Anor v Housing Development Board & Anor [2015] SGCA 62 CA. The case is an authority for the proposition that there are situations where the 3-month period stipulated in O 53 r 1(6) of the Singapore Rules of Court can start to run from the final step in the process where an impugned decision is borne out of multiple decision processes. [23] In Per Ah Seng, the respondent’s course of conduct as a whole demonstrated its willingness to reconsider its decision. The respondent was engaged in a long-drawn process of clarifying and eliciting more information from the appellants and met the 1st appellant on many occasions from the time of the letter dated 14.3.2011 communicating the Minister’s rejection of the appellants’ appeal right up to the time of the final rejection on 4.4.2014. In fact, there was evidence that the appellants had satisfactorily accounted for the delay because they continued to engage the respondent in their attempts to persuade it to change its mind and thus could not be expected to commence litigation. [24] In short, in cases where there was a delay, it is always open to the applicant to attempt to persuade the Court that it has a satisfactory explanation for the delay. [25] The putative 2nd respondent, in its Final Letter dated 31.5.2021, made it clear of the decision arrived at by the putative respondents arising from the issues raised by the Malaysian Bar in its earlier letters. [26] The Final Letter, which was in response to the Malaysian Bar’s letter dated 4.5.2021, states inter alia as follows: Sehubungan itu, sukacita dimaklumkan bahawa Yang Berhormat Menteri Sumber Manusia telah bersetuju untuk memberi pengecualian pembayaran levi kepada majikan berdasarkan syarat di bawah: (a) Majikan yang diliputi di bawah Perintah Pindaan Jadual Pertama, Akta PSMB, 2001 (P.U.(A) 84/2021) bermula 1 Mac 2021; (b) Majikan tergolong dalam para (a) dan BERDAFTAR dengan HRD Corp SEBELUM 1 Julai 2021 adalah LAYAK mendapat pengecualian levi sebagaimana yang dinyatakan; dan (c) Tempoh pengecualian bermula dari 1 Jun 2021 hingga 31 Disember 2021. [27] I cannot therefore accede to the applicant’s request to conclude that there is a lack of clarity in the Final Letter. The Malaysian Bar sought the exemption until the end of 2022. The putative 2nd respondent answered in the negative but allowed the exemption until 31.12.2021. It cannot be anything clearer than that. [28] It should be borne in mind that the letter from the Malaysian Bar dated 4.5.2021 did not raise the issue of challenging the legality of the 2021 Order insofar as the legal profession is concerned. The 4.5.2021 letter also did not assert that the Act should be read in harmony with the LPA or that the LPA should take precedence in the event of any conflict. Both of these issues are the subject matter of this application for leave for judicial review. [29] I do not respectfully think that it is fair to expect the putative 2nd respondent to respond to the issues not raised by the Malaysian Bar in the 4.5.2021 letter. [30] Secondly, there is nothing in the Final Letter where the putative 2nd respondent indicated that it or the Minister was willing to reconsider the decision as contained therein, within the context of Per Ah Seng. The Final Letter does not state that there were further multiple steps to be undertaken by the putative 2nd respondent either. [31] It is therefore my finding that as against the putative 2nd respondent, the time starts to run from the date of the Final Letter, which is on 31.5.2021. [32] While the Malaysian Bar’s attempt to join forces with the Professional Bodies is commendable, it does not explain the delay in acting in a fast and furious manner after the Final Letter was issued. It is even more so when the Final Letter did not indicate that the putative respondents were willing to reconsider further representations, if any, from the Malaysian Bar. [33] It is trite that failure to comply with the O 53 r 3(6) on the time stipulated is fatal. The Court does even have to look at the merits of the application. It may be meritorious. The applicant could have a very strong case that could move mountains. But the Court is not seized with the jurisdiction. The application for judicial review is incompetent. It is not properly brought before the Court; see Wong Kin Hoong & Anor v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161 FC. [34] Therefore, the application for an extension of time against the putative 2nd respondent is refused. [35] As a consequential order, the judicial review application against the putative 2nd respondent is dismissed. [36] However, the Minister did not file any affidavit in reply to the AIS-8. I can only conclude that the affirmation made by Puan Shahareen is not challenged or contradicted by the Minister. The law, I believe, can be found in the judgment of the Court of Appeal in Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281 CA: Now, it is a well-settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted. The same proposition can be seen in the recent judgment of the Federal Court in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159 FC where Abdul Rahman Sebli FCJ remarked as follows: Therefore, the respondent’s failure to contradict the appellants’ assertions that they did not receive the writ must be taken as an admission of the fact so asserted: see Alloy Automotive Sdn Bhd v Perusahaan Ironfield Sdn Bhd [1986] 1 MLJ 382; [1986] CLJ Rep 45 (‘Alloy Automative’) which the Court of Appeal applied in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ; [1995] 1 CLJ 609. [37] During oral submission, the learned FC intimated to the Court that the Minister adopted the AIR-18 affirmed by Encik Shahul. With respect, there is nothing in AIR-8 where Encik Shahul asserted that he affirmed the affidavit on behalf of the Minister too. There is no notice of intention to use the putative 2nd respondent’s affidavit either. [38] For the aforesaid reasons, I am allowing the application in Encl 10 as against the Minister. [39] There shall be no order as to costs. Tarikh: 17 Oktober 2022 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur